Gibson v. Air & Liquid Sys. Corp.

2018 NY Slip Op 31324(U)

IN RE: NEW YORK CITY ASBESTOS LITIGATION:

KRISTIAN NICHOLE GIBSON,as Executrix for the Estate of WAYNE GIBSON, Plaintiffs v. AIR & LIQUID SYSTEMS CORPORATION, as successor by merger to

BUFFALO PUMPS, INC., et al., Defendants.

INDEX NO. 190187/2015

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

RECEIVED: June 27, 2018

June 25, 2018

NYSCEF DOC. NO. 219

PRESENT: MANUEL J. MENDEZ Justice

MOTION DATE 06-13 -2018

MOTION SEQ. NO. 005

MOTION CAL. NO. __________

Upon a reading of the foregoing cited papers it is Ordered that defendant Mack Trucks, Inc.'s motion to dismiss Plaintiff's claims and all cross-claims asserted against it, for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8), is denied. The personal jurisdiction defense was not raised in the defendant's answer therefore it has been waived.

Plaintiff's decedent Wayne Gibson was diagnosed with and died from Mesothelioma, which is alleged to have resulted from his exposure to asbestos. It is alleged that Plaintiff's decedent was exposed to asbestos when he came in contact with defendant Mack Trucks, Inc., and Kenworth Trucks, Inc.'s ( hereinafter "Mack" and "Kenworth") asbestos containing brake pads, clutches and gaskets, when he worked as a driver for a trucking company called "Russell Transfer" in the State of Virginia from 1968 to 1985 . Plaintiff alleges that the injuries were caused when, on a few occasions, its decedent helped the company's mechanics and in his presence they removed and replaced brake pads, clutches and gaskets on Mack and Kenworth Trucks.

Mr. Gibson at all relevant times resided outside the state of New York and was exposed to asbestos outside the state of New York, except for a brief six month period when he was serving in the United States Navy between 1963 and 1968. Mack Trucks, Inc., is a Pennsylvania Corporation with its principal place of business in Greensboro North Carolina. Mack's Vehicle assembly plant is located in Macungie Pennsylvania and its engine assembly plaint is located in Hagerstown Maryland. The only alleged exposure Mr. Gibson had with a product made or sold by Mack occurred in the course of his duties as a driver with Russell Transfer, a company that operated in the State of Virginia. Mr. Gibson did not know, and could not tell where Russell Transfer's Mack Trucks, or the replacement parts they used were purchased.

Plaintiff commenced this action on June 16, 2015 against various defendants, including defendant Mack Trucks, Inc., to recover for the injuries Wayne Gibson sustained. Mack filed an acknowledgment of Plaintiff's complaint on July 10, 2015. Mack's acknowledgment cited its standard Answer denying all material allegations. Mack's Standard Answer did not contain an affirmative defense of lack of personal jurisdiction. On July 29, 2015 plaintiff served Amended Responses to defendants' Standard Liability interrogatories delineating the basic facts of this case.

Mack Trucks, Inc., does not own any land or lease any offices, own any dealerships, factory branches or service centers, or have any employees in the State of New York. It is a foreign corporation registered to do business in the State of New York and has appointed the New York State Secretary of State as its agent in New York for the service of process.

Defendant Mack Trucks, Inc., makes this motion to dismiss for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8). It argues that this court does not have personal jurisdiction over it because Wayne Gibson's exposures occurred outside of the State of New York, Mr. Gibson did not reside in the State of New York, Defendant Mack is not incorporated in New York and does not maintain its principal place of business here, therefore there is no general jurisdiction. Furthermore, Plaintiff's decedent's claims do not arise from any of defendant Mack Truck, Inc.'s New York transactions, and Mack Trucks Inc., 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, therefore there is no specific jurisdiction. ( see CPLR § 302(a)(1), (2) and (3)).

In support of its motion defendant Mack Trucks, Inc., cites to Daimler v. Bauman, ( 134 S. Ct. 746, [2014] where the supreme court Reversed the Ninth Circuit Court of Appeals and held that due process did not permit exercise of general personal jurisdiction over a German corporation in California based on the services performed in California by its United States Subsidiary, when neither the parent German corporation or the Subsidiary were incorporated in California or had their principal place of business there. General jurisdiction over a corporation can only be exercised where the corporation is at home. Absent "exceptional circumstances" a corporation is at home where it is incorporated or where it has its principal place of business.

Defendant Mack Trucks, Inc., also argues that there is no specific jurisdiction over it. In support of its motion defendant Mack Trucks, Inc., cites to the decision in Bristol-Myers Squibb Company v. Superior Court of California, San Francisco County, et al, (137 S.Ct. 1773 [June 19, 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.

In sum defendant Mack Trucks, Inc., argues that this court lacks personal general and specific jurisdiction over it and therefore the claims should be dismissed.

Plaintiff opposes the motion on the ground that defendant failed to assert the affirmative defense of lack of personal jurisdiction in its answer, therefore it waived the jurisdictional defense. Plaintiff also argues that there is personal jurisdiction over the defendant under the New York State's long-arm statute. Finally it argues that defendant has consented to jurisdiction when it, being a foreign corporation, registered to do business in the State of New York and appointed the Secretary of State as an agent for the service of Process.

General and Specific Jurisdiction:

" 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 ( 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 the forum 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 Co., Supra; Walden v. Fiore, 134 S. Ct. 1115 [2014])."

This court could not exercise General Personal jurisdiction over the defendant Mack Trucks, Inc., because it is not incorporated, nor does it have its principal place of business in the State of New York. Defendant Mack Trucks, Inc., is a Pennsylvania corporation, with its principal place of business in the State of North Carolina. This court could not 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 could not exercise personal specific jurisdiction under CPLR § 302(a)(2) because Defendant Mack Trucks, Inc., has not committed a tortious act within the State. All of the alleged exposures to defendant's product occurred in the State of Virginia. 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 who could not reasonably be expected to foresee that their acts outside of New York could have harmful consequences in New York ( Lebron v. Encarnacion, Supra).

More is required than just an injury in New York. The plaintiff must establish that the defendant either "(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, or (ii) expects or should reasonably expect the act to have...