Koenig v. ABB, Inc. (In re N.Y.C. Asbestos Litig.)

• Decision Date: 06 January 2020
• Docket Number: INDEX NO. 190210/2014
• Citation: 2020 NY Slip Op 30065 (U)
• Parties: IN RE: NEW YORK CITY ASBESTOS LITIGATION PATRICIA KOENIG, as Personal Representative for the Estate of WILLIAM KOENIG, and PATRICIA KOENIG, Individually, Plaintiffs, v. ABB, INC. as successor in interest to ITE CIRCUIT BREAKERS, INC., et al., Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 30065(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATIONPATRICIA KOENIG, as Personal Representative for the Estate of WILLIAM KOENIG,and PATRICIA KOENIG, Individually, Plaintiffs, v. ABB, INC. as successor in interest to ITE CIRCUIT BREAKERS, INC., et al., Defendants.

INDEX NO. 190210/2014

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

RECEIVED: January 9, 2020

January 6, 2020

NYSCEF DOC. NO. 165

PRESENT: MANUEL J. MENDEZ Justice

MOTION DATE 12/18/2019

MOTION SEQ. NO. 002

MOTION CAL. NO. __________

Upon a reading of the foregoing cited papers it is Ordered that Defendant Pneumo Abex LLC's (hereinafter "Abex") motion to dismiss Plaintiffs' claims as against it for lack of personal jurisdiction, pursuant to CPLR § 3211(a)(8), is granted, the complaint and all cross-claims against this Defendant are dismissed. Plaintiffs' cross-motion for jurisdictional discovery is denied.

Plaintiff, William Koenig, was diagnosed with and died from mesothelioma, which is alleged to have resulted from his exposure to asbestos. It is alleged that he was exposed to asbestos when he came in contact with Abex's asbestos-containing brake products while working as an auto mechanic from 1970 to 1979. Plaintiff alleges that the injuries were caused by being in the presence of Abex's brake products as they were removed and replaced at service stations that were located throughout different cities of Massachusetts.

Mr. Koenig moved to the State of Massachusetts in the late 1960's and was residing in Michigan in January 2004 when he was diagnosed with mesothelioma.

Plaintiffs commenced this action on July 10, 2015 against various defendants, including Defendant Abex, to recover for the injuries Mr. Koenig sustained. On August 7, 2015, Abex filed acknowledgement of service, an answer to the verified complaint, affirmative defenses which included an affirmative defense based on lack of personal jurisdiction, and cross claims. (See moving papers Exhibit A and B).

On September 28, 2015 Plaintiffs served answers to interrogatories which contained a Chart 'A' that described Mr. Koenig's specific exposure history. The relevant portions of Chart 'A', written by Plaintiffs' attorney, disclosed that Mr. Koenig was exposed to asbestos from his time as a brake mechanic in Queens, New York from 1955 to 1958 and while doing boiler work and renovations on residences in Salem, Massachusetts from 1962 to 1980. The interrogatories were not answered under oath, and without further consistent evidence, the only reliable evidence is the deposition of Mr. Koenig's Son. Mr. Koenig's son, William T. Koenig, was deposed on February 25 and April 21 of 2016. At the depositions, where he was questioned by Abex's counsel, he stated under oath the nature of his father's exposure to Abex products. (See moving papers Exhibit C). When William T. Koenig was asked by Abex's counsel if he had any personal knowledge of his father's previous work during his time as a brake mechanic in Queens, New York, William. T. Koenig stated he does not and that happened before he was born. Mr. Koenig's son only testified to having knowledge of his father's work with asbestos-containing brake pads when his father worked in Beverley, Hamilton, and Salem, Massachusetts. (See opposition papers Exhibit 2 pg. 233-242).

In its answer, Abex asserted a number of affirmative defenses and cross claims, which included an affirmative defense asserting that "there is no in personam jurisdiction over Abex in New York." Abex makes this motion, by order to show cause, to dismiss for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8).

Defendant is not contesting service. It argues that this court does not have personal jurisdiction over Abex because Mr. Koenig's exposure occurred outside of the State of New York, at a time when he did not reside in the State of New York, and Abex is not incorporated in New York and does not maintain its principal place of business here. Plaintiffs' claims do not arise from any of Abex's New York transactions, and Abex did 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. (See CPLR § 302(a)(1), (2), and (3)).

In support of its motion, Abex cites to the decision in Bristol-Myers Squibb Company v. Superior Court of California, San Francisco County, et al., (137 S.Ct. 1773 [2017]), where the United States Supreme Court dismissed the claims of non-California residents in a products liability action for lack of specific personal jurisdiction, where the non-residents did not suffer a harm in California, and all the conduct giving rise to their claims occurred elsewhere. They also point to BNSFRailway Co., v. Tyrrell, 137 S.Ct. 1549 [2017]), which affirmed the holding in Daimler AG v. Bauman, 134 S. Ct. 746, 187 L.Ed.2d 624 [2014], where the United States Supreme court dismissed the claim for lack of general personal jurisdiction of non-Montana residents, who were not injured in Montana, where defendant Railroad was not incorporated in Montana, nor maintained its principal place of business there. Abex also cites to McGowan v. Smith, (52 N.Y.2d 268 [1981]), where the New York Court of Appeals affirmed the dismissal of the claims brought by a New York resident plaintiff, who was injured in Canada by the explosion of a fondue pot the plaintiff had purchased in New York State, against a Japanese trading company.

The court in McGowan held that "(1) several visits which representatives of the trading company made to New York for purposes of general marketing research and ascertaining what type of products might be salable in New York could not form the predicate for exercising in personam jurisdiction over the trading company, and (2) the injury did not occur in New York so as to give a New York court jurisdiction on a theory that the company had committed a tortious act outside of New York which resulted in an injury in New York." Finally, Defendants cite to Longines-Wittnauer Watch Co. v. Barnes and Reinecke, Inc., (15 N.Y.2d 443 [1965]), which held that CPLR § 302(a)(2) has been narrowly construed to apply only to torts committed within the State of New York.

In sum, Defendant Abex argues that this court lacks specific and general personal jurisdiction over it and therefore the claims should be dismissed.

Plaintiffs oppose the motion on the ground that there is personal jurisdiction over the Defendant under the New York State long-arm statute. In addition, Plaintiffs cross move for discovery on the jurisdictional issues.

"General Jurisdiction permits a court to adjudicate any cause of action against the defendant, wherever arising, and whoever the plaintiff." (Lebron v. Encarnacion, 253 F. Supp3d 513, [E.D.N.Y. 2017]). "For a corporation, the paradigm forum for general jurisdiction, that is the place where the corporation is at home, is the place of incorporation and the principal place of business. A court may assert general jurisdiction over a foreign corporation to hear any and all claims against it when its affiliations with the State are so 'continuous and systematic' as to render it essentially at home in the forum State. (Daimler AG v. Bauman, 134 S. Ct. 746, 187 L.Ed.2d 624 [2014]; Goodyear Dunlop Tires Operations, S.A., v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed2d 796 [2011]; BNSF Railway Co., v. Tyrrell, 137 S.Ct. 1549 [2017])."

"For the court to exercise specific jurisdiction over a defendant the suit must arise out of or relate to the defendant's contacts with the forum. Specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. When no such connection exists, specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State. What is needed is a connection between theforum and the specific claims at issue. (Bristol-Myers Squibb Co., v. Superior Court of California, San Francisco, 136 S.Ct. 1773 [2017])." "It is the defendant's conduct that must form the necessary connection with the forum state that is the basis for its jurisdiction over it. The mere fact that this conduct affects a plaintiff with connections with a foreign state does not suffice to authorize jurisdiction. (See Bristol-Myers Squibb; Walden v. Fiore, 134 S. Ct. 1115 [2014])."

This court cannot exercise general personal jurisdiction over the defendant Abex because it is not incorporated, nor does it have its principal place of business in the State of New York. Abex is a Delaware corporation, with its principal place of business in the State of Texas. This Court cannot exercise specific personal jurisdiction under CPLR § 302(a)(1) because there is no articulable nexus or substantial relationship between its in state conduct and the claims asserted. This section of the Statute is triggered when a defendant transacts business in New York and the cause of action asserted arises from that activity. This Court cannot exercise specific personal jurisdiction under CPLR § 302(a)(2), because Abex has not committed a tortious act within the State. All of the alleged exposures to defendant's product occurred in the State of Massachusetts. Exercise of specific jurisdiction under this section requires a defendant to be physically present in New York.

"CPLR § 302(a)(3) which allows for jurisdiction over an out of state defendant who causes personal injury in New York by committing a tortious act elsewhere, if it reasonably expects its act to have consequences in this state and derives substantial revenue from interstate or international commerce, was adopted for the purpose of broadening New York's long-arm jurisdiction so as to include non-residents who cause tortious injury in the state by an act or omission outside the state.... The amendment was not intended to burden unfairly non-residents whose connection with the State is remote and...