Babcock v. A.O. Smith Corp. (In re N.Y.C. Asbestos Litig.)

• Decision Date: 18 June 2019
• Docket Number: INDEX NO. 190134/2018
• Citation: 2019 NY Slip Op 31714 (U)
• Parties: IN RE: NEW YORK CITY ASBESTOS LITIGATION ARNOLD BABCOCK and ROSE MARY BABCOCK, Plaintiffs, v. A.O. SMITH CORPORATION, et al., Defendants.
• Court: New York Supreme Court

2019 NY Slip Op 31714(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION

ARNOLD BABCOCK and ROSE MARY BABCOCK, Plaintiffs,
v.
A.O. SMITH CORPORATION, et al., Defendants.

INDEX NO. 190134/2018

SUPREME COURT OF THE STATE OF NEW YORK — NEW YORK COUNTY PART 13

June 18, 2019

NYSCEF DOC. NO. 452

PRESENT: MANUEL J. MENDEZ Justice

MOTION DATE 06/122019

MOTION SEQ. NO. 009

MOTION CAL. NO. __________

Upon a reading of the foregoing cited papers, it is Ordered that defendant Watts Water Technologies, Inc.'s motion pursuant to CPLR §3211(a)(8) and CPLR §301 and §302 to dismiss plaintiff's complaint for lack of personal jurisdiction, is denied. Plaintiffs' cross-motion is granted to the extent of amending the Summons and Complaint to add Watts Regulator, Co. as a defendant, the remainder of the relief sought on the cross-motion is denied.

Plaintiff, Arnold Babcock, was diagnosed with malignant epithelioid mesothelioma on or about March 19, 2018 (Mot. Exh. C, Answer 7). His exposure - as relevant to this motion - is allegedly from his work in New York as a union pipefitter from 1962 through 1993. He was a member of the Plumbing and Steam-fitting Local Union 269 (now Local 373) (Mot. Exh. C, Answer 21(a), and Opp. Exh. B, at pages 1289-1290, 1299, 1307, 1332-1333, 1345-1347).

Mr. Babcock was deposed over the course of nine (9) days, May 30, 31, June 1, 4, 5, 6, 18 and 20, 2018. Mr. Babcock identified his work with "Watts" asbestos containing products, and testified that he remembered repairing traps and removing old gaskets. He testified that washer or gaskets next to the valves and steam traps bore the word "Watts." He remembered that the name "Watts" was either embossed or on the nameplate of the products. Mr. Babcock testified that he worked with "Watts" valves, including those associated with washing machines, feed valves and pressure relief valves on boilers. He also recalled work on "Watts" steam traps (Opp. Exh. B, pgs. 52, 62, 214-215, 285-286, 392-393, 452-453, 1289-1291, 1294, 1297, 1299, 1307, 1310-1312 and 1328-1333, and Mot. Exh. C, Amended Chart A).

The motion papers do not state when Watts Water Technologies, Inc. was created. On December 27, 1985 Watts Industries Inc. was incorporated in the State of Delaware to take the company public and to raise investment capital for major acquisitions (Mot. Exh. E and Opp. Exh. E, pg. 5). On March 30, 2003, Watts Industries, Inc. merged with Watts Water Technologies, Inc., also a Delaware Corporation, and changed its name to Watts Water Technologies, Inc. (Mot. Exh. F, para. "Fourth," and Mot. Exh. G, MacPhee Aff., para. 4). Watts Water Technologies, Inc.'s principal place of business is North Andover, Massachusetts (Mot. Exh. G, MacPhee Aff. paras. 4 and 5).

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Watts Regulator Company was started in 1874 and manufactured valves, steam and water pressure regulators through at least 1994. In 1936, Watts Regulator Company became incorporated in Massachusetts. The incorporation of Watts Industries Inc. in 1985 created a "parent company" of the business, with Watts Regulator Company becoming a subsidiary. After the 2003 merger, Watts Water Technologies, Inc. became the "parent company" of Watts Regulator Company (See Reply, pg. 5, para. 19 and footnote 2, and Opp. Exhs. E and F).

Plaintiffs commenced this action on April 23, 2018 to recover for personal injuries resulting from Mr. Babcock's exposure to asbestos from the defendants' products and named Watts Water Technologies, Inc. as a defendant (Mot. Exh. A, NYSCEF Docket #1). The summons and complaint were subsequently amended seven times to add defendants. The Seventh Amended Summons and Complaint is dated December 3, 2018 (Mot. Exh. A). Watts Water Technologies, Inc. served and uploaded its Answer to the Summons and Complaint on May 25, 2018(Mot. Exh. B).

Watts Water Technologies, Inc. participated in discovery which included depositions - with sixty (60) pages of transcript comprising the cross-examination of plaintiff, Arnold Babcock, by Watts Water Technologies, Inc.'s attorney - responses to plaintiffs' interrogatories, and Watts Water Technologies, Inc.'s expert witness disclosures (Opp. Exh. B, pgs. 1287-1347, Reply Exh. A, and Opp. Exh. C). On December 6, 2018 plaintiffs filed the Note of Issue (Opp. to Cross-Mot. Exh. A). Pursuant to the April 3, 2019 Transfer Order this case was added to the October 2018 - In Extremis Cluster (NYSCEF Doc. #317). On April 10, 2019 the parties appeared before this Court for a pre-trial conference and were assigned a June 18, 2019 trial date.

Watts Water Technologies, Inc. seeks to dismiss this action pursuant to CPLR §3211, CPLR §301and CPLR § 302 for lack of personal jurisdiction.

Watts Water Technologies, Inc. argues that this court lacks general and specific jurisdiction over it and the plaintiffs' claims should be dismissed. Watts Water Technologies, Inc. claims that it is not incorporated in New York, and does not maintain a principal place of business here, therefore there is no general jurisdiction. Watts Water Technologies, Inc. also argues that plaintiffs' claims do not arise from any of Watts Water Technologies, Inc.'s New York transactions, and that the claims asserted against it for the period prior to 1985 were before it even came into existence. It also claims that it could not commit a tortious act within the State of New York or without the State of New York that caused an injury to person or property within the State of New York, because it did not manufacture, sell or distribute any products before 1993, therefore there is no specific jurisdiction (see CPLR § 302(a)(1), (2) and (3)).

Plaintiffs oppose the motion on the ground that Watts Water Technologies, Inc. did not plead with specificity, or state at any point during discovery and before making this motion, the lack of a corporate existence prior to 1985. Plaintiffs also argue that Watts Water Technologies, Inc. waived the defense of lack of personal jurisdiction by participating in litigation and not making this motion until after the Note of Issue was filed and this case was assigned a trial date.

CPLR §3018 applies to the pleading of affirmative defenses, it requires that a party assert an affirmative defense that is sufficiently detailed to preserve the jurisdictional defense (See Gibson v. Air & Liquid Systems Corporation, 2019 N.Y. Slip Op. 04777 [1^st Dept., 2019] citing to Green Bus Lines v. Consolidated Mut. Ins. Co., 74 A.D. 2d 136, 426 N.Y.S. 2d 981 [2^nd Dept. 1980]). A defendant that clearly asserts the affirmative defense in its answer does not waive personal jurisdiction (Shabrawy v. Ocean Ships, Inc., 266 A.D. 2d 277, 641 N.Y.S. 2d 36 [1^st Dept. 1996] and Goldenberg v. Westchester County Health Care Corp., 16 N.Y. 3d 323, 946 N.E. 2d 717, 921 N.Y.S. 2d 619 [2011]).

Watts Water Technologies, Inc. asserted a third affirmative defense in its Answer that states: "This Court lacks personal jurisdiction over Defendant" (Mot. Exh. B). Plaintiffs are confusing a general denial with no stated objection to personal jurisdiction

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with Watte Water Technologies, Inc.'s actual pleadings. Watts Water Technologies, Inc.'s Third Affirmative defense clearly states there is an objection to personal jurisdiction sufficient to avoid waiver and proceed on this motion to dismiss.

"On a motion to dismiss pursuant to CPLR § 3211, [the court] must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible inference and determine only whether the facts alleged fit within any cognizable legal theory" (Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y. 2d 409, 754 N.E. 2d 425, 729 N.Y.S. 2d 425 [2001]). A motion to dismiss pursuant to CPLR § 3211 (a)(8) applies to lack of jurisdiction over the defendant. Jurisdiction over a non-domiciliary is governed by New York's CPLR §301, and the long-arm provisions of CPLR §302.

The plaintiff bears the burden of proof when seeking to assert jurisdiction (Lamarr v. Kiein, 35 A.D. 2d 248, 315 N.Y.S. 2d 695 [1^st Dept., 1970]). However, in opposing a motion to dismiss the plaintiff needs only to make a sufficient showing that its position is not frivolous (Peterson v. Spartan Industries, Inc., 33 N.Y. 2d 463, 310 N.E. 2d 513, 354 N.Y.S. 2d 905 [1974]).

Plaintiffs argue that Watts Water Technologies, Inc. is a successor corporation and subject to specific jurisdiction. They alternatively argue that they will be severely prejudiced if Watts Water Technologies, Inc. is not kept in this case as a successor corporation. Finally they argue that Watts Regulator Company is an admitted principal subsidiary as shown in the 1994 Annual Report made to the Securities and Exchange Commission (SEC) (Opp. Exh. F). Plaintiffs did not name Watts Regulator Company as a defendant in this action or as a successor to Watts Water Technologies, Inc..

Plaintiffs claim there is personal jurisdiction over Watts Water Technologies, Inc. under New York State's long-arm statute. Plaintiffs argue that this court has jurisdiction over Watts Water Technologies, Inc. because its predecessor transacted business in the state by supplying goods in the form of valves and steam traps, and their actions gave rise to Mr. Babcock's injuries from exposure to asbestos during the period he was employed here. Plaintiffs claim that Watts Water Technologies, Inc. maintains distributors and sales offices which have a robust business that derives substantial revenue in New York State, warranting denial of the motion to dismiss for lack of personal jurisdiction.

General Jurisdiction:

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