Opinion
11986 Index No. 190150/18 Case No. 2019-05469
10-08-2020
IN RE NEW YORK CITY ASBESTOS LITIGATION Helen Haley, Individually and as Executrix of the Estate of Edward Haley, Deceased, Plaintiff–Respondent, v. ABB, Inc., et al., Defendants, Munaco Sealing Solutions, Inc., Defendant–Appellant.
McElroy, Deutsche, Mulvaney & Carpenter, LLP, New York (Joseph P. LaSala of counsel), and Spilman Thomas & Battle, PLLC, Winston–Salem, NC (Stephanie Underwood Eaton of the bar of the State of North Carolina, admitted pro hac vice, of counsel), for appellant. Wilentz, Goldman & Spitzer, P.A., New York (Andrew Grous of counsel), for respondent.
McElroy, Deutsche, Mulvaney & Carpenter, LLP, New York (Joseph P. LaSala of counsel), and Spilman Thomas & Battle, PLLC, Winston–Salem, NC (Stephanie Underwood Eaton of the bar of the State of North Carolina, admitted pro hac vice, of counsel), for appellant.
Wilentz, Goldman & Spitzer, P.A., New York (Andrew Grous of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered December 13, 2019, which denied defendant's CPLR 3211(a)(8) motion to dismiss the complaint and all cross claims against it, for lack of personal jurisdiction, unanimously affirmed, with costs.
The prior decisions in Herlihy v. A.F. Supply Corp., 112 A.D.3d 529, 976 N.Y.S.2d 876 (1st Dept. 2013) and DeRozieres v. ABB, Inc., 2019 N.Y. Slip Op. 31628[U], 2019 WL 2422673 (Sup. Ct., N.Y. County 2019, Manuel J. Mendez, J.) collaterally estop defendant from relitigating the issue of its amenability to personal jurisdiction in this action under a theory of successor jurisdiction (see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63 [1985] ).
The fact that defendant had filed a notice of appeal when it settled the DeRozieres action "did not suspend the operation of the judgment as an estoppel" ( Parkhurst v. Berdell, 110 N.Y. 386, 392–393, 18 N.E. 123 [1888] ; see Matter of State of New York Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 A.D.3d 1269, 1271 n *, 848 N.Y.S.2d 444 [3d Dept. 2007], lv dismissed 10 N.Y.3d 826, 858 N.Y.S.2d 652, 888 N.E.2d 394 [2008] ; Matter of Beard v. Town of Newburgh, 259 A.D.2d 613, 614, 686 N.Y.S.2d 809 [2d Dept.], lv dismissed 93 N.Y.2d 958, 694 N.Y.S.2d 635, 716 N.E.2d 700 [1999] [same] ).
We reject defendant's contentions that the preclusive effect of the decision in Herlihy is vitiated by new evidence or a change in the law (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 504, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ). Nothing in the newly submitted contract by which defendant's New York predecessor (Munaco–NY) conveyed a portion of its assets to another New York entity alters or even contradicts the wealth of evidence supporting the Herlihy court's finding that defendant was the successor to Munaco–NY. Nor has defendant pointed to any cases which would constitute a change in this Court's law regarding successor jurisdiction, particularly in light of our own endorsement of that principle in our affirmance in Herlihy .