Gayoso v. Am. Honda Motor Co. (In re N.Y.C. Asbestos Litig.)

2019 NY Slip Op 31184(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION

SHARON R. GAYOSO, as Personal Representative for the Estate of JAY A. GAYOSO,and SHARON R. GAYOSO, Individually, Plaintiffs, v. AMERICAN HONDA MOTOR CO., INC. (AHM), et al., Defendants.

INDEX NO. 190209/2014

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

RECEIVED: April 29, 2019

April 26, 2019

NYSCEF DOC. NO. 153

PRESENT: MANUEL J. MENDEZ Justice

MOTION DATE 04/22/2019

MOTION SEQ. NO. 003

MOTION CAL. NO. __________

Upon a reading of the foregoing cited papers, it is Ordered that Defendant Nissan North America, Inc.'s (hereinafter "Nissan") motion pursuant to CPLR §3211(a)(8) to dismiss this action on the grounds of lack of jurisdiction, alternatively to preclude plaintiff's medical causation expert and for summary judgment pursuant to CPLR §3212 on the issue of causation, is denied.

Plaintiff Jay A. Gayoso (hereinafter referred to as decedent), was diagnosed with malignant mesothelioma in April of 2016. Decedent passed away on February 15, 2017, when he was about 55 years old. Decedent was a resident of New York until 1971 or 1972 when he was about eleven (11) years old, and the family moved to Connecticut (Mot. Exh. D, pgs. 12 and 16-17). Decedent's family moved to Florida between 1972 and 1973. Decedent remained a resident of Florida from about 1972 until his death, except for a brief period from about 1990 through 1992 when he moved back to New York to finish law school and work at a law firm for about two years (Mot. Exh. D, pgs. 20-25 and 80-81).

Plaintiffs allege that the decedent's exposure to asbestos caused his mesothelioma. Decedent's alleged exposure to asbestos - as relevant to this motion - was from observing mechanics work on brakes and clutches from defendant Nissan and its predecessor company, Datsun cars, at a Phillips 66 full service gas station in Fort Lauderdale, Florida, from about the end of 1977 through June of 1978 - his senior year in high school (Mot. Exh. D, pg. 37 and 50).

Decedent stated that his hours at the Phillips 66 gas station were Monday through Friday, mostly after school starting at 1:30 p.m. or 2:00 p.m. through 6:00 p.m. or 7:00 p.m. for a short shift, or until closing at 9:00 p.m.. He testified that he also worked on either a Saturday or a Sunday from 9:00a.m. to 6:00p.m., when called, and that he worked full time during spring break and in the summer. Decedent testified that his duties at the Phillips 66 gas station were to pump gas, clean the car windows, check the oil, put oil in cars, take out the trash, fix tires, cool down radiators by putting radiator fluid in, and sometimes helping the mechanics. He claimed that helping mechanics meant anything from getting a tool to getting parts, and on rare occasions holding a screwdriver to assist in completing a job (Mot. Exh. D, pgs. 40-42, 45-46 and 48-49).

Decedent stated he helped do clutch work on Nissan and Datsun vehicles. He stated that Nissan was known as Datsun during 1977 through 1988. He testified that clutch work would take many hours sometimes into the next day and that sometimes he would assist the mechanics doing the work by giving them parts. Decedent stated that clutch work involved dropping the gears out to get to the clutch - which he described as a disc with abrasive material on it - and removing the pressure plate that was on top of the clutch. He stated that dust would come out when the pressure plate was removed. Decedent testified that his exposure to asbestos from clutches was from the dust during the work, specifically from the abrasive part (Mot. Exh. D, pgs. 50-52, 60-61, 65 and 206). Decedent claimed that he was present for clutch work on Datsun vehicles - which occurred less frequently than brake work - and that he observed clutches removed from Datsun vehicles's many times. He recalled that he was able to tell that the brakes were from Datsun vehicles either from looking at them, or talking to the mechanics (Mot. Exh. D, pgs. 206-207).

Decedent stated that he was exposed to asbestos dust created by the mechanics when they were working on Datsun brakes while he was either standing right next to them, or "sometimes ten feet away" (Mot. Exh. D, pgs. 50-52). He specifically remembered that Datsun models 200SX, 210 and 240 were worked on "many times" - which was more than ten but less than one hundred times - during his employment at the Phillips 66 gas station (Mot. Exh. D, pgs. 188-189 and 198-199). Decedent testified that he observed both the removal and replacement of brakes on Datsun cars. He recalled the Datsun 200SX model car replacement brake was manufactured by Datsun. Decedent testified he knew the replacement brake was manufactured by Datsun after he talked to the mechanics on an almost daily basis, after he overheard customers talking to the mechanics, and because of some designation on the part (Mot. Exh. D, pgs. 199-204).

At all times relevant to exposure from Nissan decedent resided in Florida and was exposed to asbestos outside the State of New York. Nissan provides the affidavit of corporate representative, Lori McPherson, a senior paralegal for corporate governance. Ms. McPherson states that Nissan is a California Corporation with its principal place of business in Franklin, Tennessee. She states that Nissan has never operated a headquarters or maintained a principal place of business in the State of New York (Mot. Exh. E).

Plaintiffs commenced this action on June 17, 2014 by filing a Short-form Complaint naming various defendants, including Nissan, to recover for the injuries the decedent sustained. The Short-form Complaint states that Nissan "was and still is a duly organized domestic corporation doing business in the State of New York" (Mot. Exh. A). The Short-form Complaint incorporated the causes of action stated in the "NYCAL Weitz & Luxenberg Standard Asbestos Complaint for Personal Injury No. 7" (hereinafter "Standard Complaint No. 7") (Mot. Exh. B). Plaintiffs subsequently amended the Complaint twice but there were no amended provisions affecting jurisdiction (Mot. Exh. M). On August 15,2014, Nissan filed a Verified Answer to plaintiffs' Short-form Complaint and Standard Complaint No. 7 (Mot. Exh. C).

Nissan's motion seeks to dismiss plaintiffs' claims asserted against if for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8). Nissan argues that this court lacks personal jurisdiction, and that there is no general or specific jurisdiction over it, therefore the plaintiffs' claims against it should be dismissed (See CPLR § 302(a)(1), (2) and (3)).

Plaintiffs in opposition argue that Nissan failed to explicitly deny personal jurisdiction by raising an Affirmative Defense in the Answer, and by appearing in the action and "electing to answer the complaint without objection to jurisdiction" (Opp. paras. 6 and 7), resulting in waiver of the jurisdictional defense.

CPLR §3211(a)(8) allows a party to move to dismiss one or more causes of action asserted against it on the grounds that the court has no jurisdiction of the person of thedefendant (See McKinney's Consolidated Laws of New York Annotated, CPLR § 3211(a)(8)). "A defense based upon lack of personal jurisdiction is deemed waived if the defendant fails to assert it, with specificity, in its answer" (See CPLR §3211(e) and Interlink Metals and Chemicals, Inc. v. Kazdan, 222 A.D. 2d 55, 644 N.Y.S. 2d 704 [1^st Dept.,1996]).

Nissan argues that it did not need an affirmative defense of lack of personal jurisdiction in its Verified Answer because in responding to jurisdictional allegations made by plaintiffs in both the Short-form Complaint and the Standard Complaint No. 7, it "unequivocally denied plaintiffs' prominent and specific allegations concerning this Court's ability to exercise personal jurisdiction." It is Nissan's contention that it provided a sufficient denial of jurisdiction warranting the relief sought in this motion (See Mot. Exhs. A, B and C). The Standard Complaint No. 7, makes no specific allegations as to Nissan, and none of the causes of action adopted by the Short-form Complaint state specific personal jurisdiction claims.

"Under the CPLR, the objection (to personal jurisdiction) may be raised either by a pre-answer motion or by pleading it as an affirmative defense, whichever comes first"(Gager v. White, 53 N.Y. 2d 475, 425 N.E. 2d 851, 442 N.Y.S. 2d 463 [1981] citing to Siegel's New York Practice §111, "Making and Preserving Jurisdictional Objection"). A defense based upon lack of jurisdiction is waived if the defendant fails to assert it with specificity, such that it fails to fairly apprise the plaintiff of the defendant's objections (Interlink Metals and Chemicals, Inc. v. Kazdan, 222 A.D. 2d 55, supra, at pg. 58, Weisner v. Avis Rent-A-Car, 182 A.D. 2d 372, supra at pgs. 372-373, and Hatch v. Tran, 170 A.D. 2d 649, 567 N.Y.S. 2d 72 [2^nd Dept., 1991]).

Nissan's Verified Answer asserts twenty-eight affirmative defenses, but none of them address personal jurisdiction. Nissan's Verified Answer asserts a counter-claim for costs and attorney's fees for plaintiffs' asserting "frivolous" claims against it, and two cross-claims for indemnification and contribution, all of which do not address personal jurisdiction (Mot. Exh. C). Nissan's failure to assert an affirmative defense of lack of personal jurisdiction or to specifically object on the grounds of personal jurisdiction, is a grounds to deem the defense waived.

Alternatively, Nissan's Verified Answer has two general denial paragraphs, denying "all material allegations" and "each and every other allegation" in plaintiffs' complaint. Both general denials deny "knowledge or information sufficient to form a belief as to the truth of every allegation asserted." The Verified Answer includes a single sentence that states "Nissan North America, Inc. is a foreign corporation."(Mot. Exh. C).

A denial as to "any knowledge or information sufficient to form a belief as to...