Opinion
Index No. 190003/2021 Motion Seq. No. 003
01-09-2024
NICHOLAS FERRARI AS ADMINISTRATOR FOR THE ESTATE OF MARIO FERRARI AND ANGELA FERRARI, INDIVIDUALLY, Plaintiff, v. A.O. SMITH WATER PRODUCTS CO, AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR-BYMERGER TO BUFFALO PUMPS, INC, AMCHEM PRODUCTS, INC., N/K/A RHONE POULENC AG COMPANY, N/K/A BAYER CROPSCIENCE INC, COURTER & COMPANY INCORPORATED, FLOWSERVE US, INC. INDIVIDUALLY AND SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVE, INC., NORDSTROM VALVES, INC., EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FMC CORPORATION, ON BEHALF OF ITS FORMER CHICAGO PUMP & NORTHERN PUMP BUSINESSES, GENERAL ELECTRIC COMPANY, IMO INDUSTRIES, INC, MARIO & DIBONO PLASTERING CO., INC, MORSE DIESEL, INC, NORTHROP GRUMMAN CORP. AS SUCCESSOR TO GEORGE A. FULLER COMPANY, O'CONNOR CONSTRUCTORS, INC., F/K/A THOMAS O'CONNOR & CONNOR & CO., INC, PFIZER, INC. (PFIZER), SKANSKA KOCH, INC, STRUCTURE TONE, TISHMAN LIQUIDATING CORP, TISHMAN REAL TY & CONSTRUCTION CO., INC, TURNER CONSTRUCTION COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, VRH CONSTRUCTION CORP, THE MARLEY-WYLAIN COMPANY, CRANE CO., PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.
Unpublished Opinion
MOTION DATE 10/10/2023
PRESENT: HON. ADAM SILVERA Justice
DECISION + ORDER ON MOTION
ADAM SILVERA, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 154, 155, 156, 157158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 184, 189, 190, 194 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, it is ordered that the instant motion seeking dismissal of this action, pursuant to both CPLR §3211 and 3212, is granted for the reasons set forth below.
Here, defendant Skanska Koch, Inc. ("Skanska") moves for summary judgment to dismiss this action on the grounds that plaintiff Mario Ferrari ("Mr. Ferrari") did not identify any asbestos exposure from moving defendant at a worksite in New York during his career as a terrazzo floor installer from 1962-2004. See Affirmation in Opposition to Defendant Skanska Koch, Inc.'s Motion to Dismiss and for Summary Judgment, p. 1-2. Moving defendant claims that it was either not present or not the general contractor at any worksite identified by Mr. Ferrari, and therefore, cannot be liable for any of his injuries. See Affirmation in Support of Skanska Koch's Motion for Summary Judgment and Motion to Dismiss for Lack of Personal Jurisdiction, p. 2. Defendant Skanska further moves to dismiss this action pursuant to CPLR §3211 for lack of personal jurisdiction due to its lack of presence at any New York worksites identified by Mr. Ferrari.
In opposition, plaintiff notes Mr. Ferrari's testimony identifying defendant Skanska as a contractor and as present at various worksites in New York, including at Columbia University in the 1980s. See Affirmation in Opposition, supra, p. 4-6.
To find personal jurisdiction, the Court must determine whether it has general or specific jurisdiction over the moving defendant. New York's general jurisdiction statute CPLR §301 and the long arm statute CPLR §302(a) govern jurisdiction over a non-domiciliary defendant. As to general jurisdiction pursuant to CPLR §301, it must be established that a defendant's "affiliations with the State [of] New York are so continuous and systematic as to render it essentially at home in the...State". Robins v Procure Treatment Ctrs., Inc., 157 A.D.3d 606, 607 (1st Dep't 2018)(intemal brackets and citations omitted). "Aside from an exceptional case, a corporation is at home only in a state that is the company's place of incorporation or its principal place of business". Lowy v Chalkable, LLC, 186 A.D.3d 590, 592 (2nd Dep't 2020)(intemal quotations and citations omitted). The relevant inquiry regarding a corporate defendant's place of incorporation and principal place of business, is at the time the action is commenced. See Lancaster v Colonial Motor Freight Line, Inc., ML A.D.2d 152, 156 (1st Dep't 1992).
As for long arm jurisdiction, CPLR §302(a) states that specific jurisdiction may be exercised over a non-resident who "(1) transacts any business within the state or contracts anywhere to supply goods or services in the state: or (2) commits a tortious act within the state...; or (3) commits a tortious act without the state causing injury to person.. .within the state...if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or (4) owns, uses or possesses real property situated within the state."
Here, in light of the Appellate Division, First Department's Decision/Order dated Dec. 28, 2023 in Witte v Hardwoods, Inc. et al., No. 190011/20, the Court finds that "there is insufficient evidence of defendant's requisite minimal contacts with New York" as to establish personal jurisdiction. Id. at p. 2. Defendant Skanska has affirmed that it was not present at Columbia University, the specific New York worksite identified by Mr. Ferrari in connection to his asbestos exposure herein.
Accordingly, it is
ORDERED that defendant Skanska's motion to dismiss for a lack of personal jurisdiction is granted in its entirety; and it is further
ORDERED that within 30 days of entry defendant Skanska shall serve all parties with a copy of this Decision/Order with notice of entry.
This constitutes the Decision/Order of the Court.