FILED: NEW YORK COUNTY CLERK 01/11/ :40 PM INDEX NO /2016 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/11/2017

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1 FILED: NEW YORK COUNTY CLERK 01/11/ :40 PM INDEX NO /2016 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/11/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In Re: NEW YORK CITY ASBESTOS LITIGATION FRANCISCO DELSIGNORE AND DELORES DELSIGNORE, Index No /16 -against- A-1 BOILER & LAUNDRY, et al Plaintiffs, Defendants PLAINTIFFS OPPOSITION TO DEFENDANT ALLIED BOILER REPAIR CORP. S MOTION TO DISMISS FOR LACK OF PERSONAL JURISIDICTION INTRODUCTION & BACKGROUND 1. Plaintiffs, Francisco Delsignore (now deceased) and Delores Delsignore ( Plaintiffs ), submit this memorandum of law in opposition to Defendant Allied Boiler Repair Corp s ( Allied ) Motion to Dismiss plaintiffs complaint pursuant to CPLR 3211(a)(8) for lack of jurisdiction over the person. STATEMENT OF FACTS 2. This case involves a claim that plaintiff, now decedent, Francisco Delsignore, suffered from mesothelioma resulting from occupational and bystander exposure to asbestos while using and handling asbestos containing gasket materials at his brother-in-law s company, K Industries a/k/a BRG Gaskets in Flushing, New York. K Industries was contracted by various boiler manufacturers and service and repair companies to make custom gaskets pursuant to the customers specifications. Mr. Delsignore visited the company on a regular basis and helped with the work. As a result, Mr. Delsignore was exposed to asbestos dust from the asbestos gaskets. 3. As stated in Plaintiff s complaint, the claims are supported by the Restatement of 1 1 of 28

2 the Law, Second, Torts, including, but not limited to, sections 343, 410, 411, 412, 413, 414, 414A, 416, 422, 424 and 427. Namely that Defendants, their subsidiaries, agents and/or servants breached their duty imposed on employers by employing an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others by failing to a.) provide in the contract that the contractor shall take such precautions and/or b) exercise reasonable care to provide in some other manner for the taking of such precautions. Defendants acts and/or omissions constitute willful misconduct and conscious disregard of the health of the public, including the Plaintiff. 4. Proof of Plaintiff s exposure from Defendant s contract with K Industries and of Defendant s transacting business in the State of New York is evidenced in several ways. First, the personal phone book used by Bruce Kasworm, plaintiff s nephew who maintained K Industries with and his father did, shows that Defendant was in fact a customer of K Industries. See Exhibit A at 1. This phone book, kept in the usual course of business by Mr. Kasworm when he worked for K Industries with and after his father clearly indicated Defendant. Mr. Kasworm will further corroborate Defendant s contracting K Industries when he testifies as a co-worker during the course of discovery for this case. In addition, Mrs. Delsignore will also provide evidence of her husband s exposure at K Industries when she appears for her soon to be scheduled deposition. 5. Furthermore, no discovery has been conducted, including fact witnesses, corporate representatives, or interrogatories. ARGUMENT 6. The argument defendants rely upon is not in denial of the allegations in plaintiffs complaint but in the alleged lack of jurisdiction pursuant to CPLR 3211 (a) (8) in which defendants claim they do not have sufficient contacts with New York to be subject to personal jurisdiction by New York courts. 2 2 of 28

3 7. To establish jurisdiction, plaintiffs only burden is to prove that defendants performed an act in New York or directed toward New York that gives rise to a claim of liability through agency, contract, tort, etc. See Evans v. Planned Parenthood of Broome County, Inc., 1974, 43 A.D.2d 996, 997 (3d Dep t); Lamarr v. Klein, 1970, 35 A.D.2d 248, 251 (1st Dep t), affirmed, 1972, 30 N.Y.2d 757, 333 N.Y.S.2d 421, 284 N.E.2d Due to the fact that the issue here is the basic one of jurisdiction, it is submitted that courts should give added weight to the requirement that a complaint be liberally construed in plaintiffs favor. See, e.g., Hoag v. Chancellor, Inc., 1998, 246 A.D.2d 224 (1st Dep t). See generally Brandt v. Toraby, 2000, 273 A.D.2d 429, 430 (when deciding issue of personal jurisdiction, courts must construe pleadings in light most favorable to plaintiffs and resolve all doubts in their favor). Moreover, for jurisdictional purposes, it should suffice that the complaint states a colorable cause of action. 9. CPLR 302, is a single-act statute, requiring only one business transaction, from which the cause of action arises, to be sufficient for jurisdictional purposes. See Kreutter v. McFadden Oil Corp., 1988, 71 N.Y.2d 460, 467. Subdivision (a)(1) sets no precise restrictions as to what constitutes a transaction of business. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 1965, 15 N.Y.2d 443, 456. No one particular act will, therefore, determine the existence of a transaction within the scope of the statute; the defendant s New York activities, and their nature and quality, are to be considered in their totality. Id. at 457 n.5. See, e.g., George Reiner and Co. v. Schwartz, 1977, 41 N.Y.2d 648, CPLR 302 (a) (3) (i) provides that a New York Court may exercise personal jurisdiction over any nondomiciliary who 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 this state. CPLR 302 (a) (3) (ii) provides that defendants need not even 3 3 of 28

4 derive substantial revenue from goods used or services rendered within the State. They merely must expect or reasonably expect that their actions will have consequences within the State. CPLR 302 (a) (3) (ii) further provides that a New York Court may exercise personal jurisdiction over any nondomiciliary who commits a tortious act without the State causing injury to a person within the state if he expects or should reasonably expect the act to have consequences in the State and derives substantial revenue from interstate or international commerce. 11. Moreover, the court is authorized to order discovery pursuant to CPLR 3211 (d) upon a showing that facts favoring jurisdiction may exist. If the Court has any doubt in view of the foregoing, it has the authority and should therefore, compel defendants to submit to discovery pursuant to CPLR 3211 (d). 12. The Court of Appeals held in Peterson v. Spartan Industries, Inc., 1974, 33 N.Y.2d 463, 467, that CPLR 3211(d) may be invoked when the plaintiffs in opposition to a motion to dismiss, has made a sufficient start, showing that its assertion of jurisdiction is not frivolous. See also Mandel v. Busch Entertainment Corp., 1995, 215 A.D.2d 455, (2d Dep t) (plaintiffs must come forward with some tangible evidence which would constitute a sufficient start in showing that jurisdiction could exist ). 13. It might seem atypical that the court can compel discovery from defendants who are contending that the court lacks jurisdiction over it. Any doubts about a court s constitutional authority in this regard were put to rest by the Supreme Court in Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 1982, 456 U.S. 694, where the imposition of discovery sanctions was upheld against a defendant who refused to participate in discovery aimed at resolving its motion to dismiss for lack of personal jurisdiction. Defendants who appear in an action for the limited purpose of objecting to jurisdiction are deemed to consent to the court s authority to determine the jurisdictional issue. 4 4 of 28

5 14. Plaintiffs claims allege, that among other things, that the manufacturing of asbestos gaskets at K Industries pursuant to Defendant s contract and specifications were such that there is a substantial likelihood that Mr. Delsignore was exposed to asbestos fibers. Moreover, the exposure to the same was the proximate cause of Mr. Delsignore s mesothelioma. Allied shows no lack of proof that it contracted with K Industries for asbestos gaskets for use in its boiler products to which Mr. Delsignore was exposed. 15. Even if this Court is inclined to grant Defendant s Motion to Dismiss, Plaintiffs urge this Court, in the interest of judicial economy, to first allow discovery pursuant to CPLR 3211 (d) in order to prove jurisdiction. Specifically, Plaintiffs will seek to discover Defendants business records, including, but not limited to billing records, sales receipts, and demands for payments to and from the State of New York. While this list is not meant to be exhaustive of Plaintiffs discovery intent to prove jurisdiction, Plaintiffs urge the Court to consider the same and to deny the instant motion in order to allow time for such discovery to take place. 16. Most importantly, Plaintiffs will be taking the deposition of Mrs. Delsignore and Mr. Kasworm who will provide the necessary evidence to show how Mr. Delsignore was exposed to asbestos from his work at K Industries and Allied s orders, specifications and/or products. / / / / / 5 5 of 28

6 CONCLUSION 17. For all the reasons stated above, defendants motion to dismiss plaintiffs complaint for lack of jurisdiction over the person pursuant to CPLR 3211 (a) (8) should be denied in its entirety, or in the alternative stayed for further discovery. Dated: New York, New York January 11, 2017 Kardon A. Stolzman, Esq. Napoli Shkolnik PLLC Attorneys for Plaintiffs 360 Lexington Avenue, 11 th Fl. New York, New York (212) of 28

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28 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X FRANCISCO DELSIGNORE and DELORES DELSIGNORE, Plaintiff, -against- Index No /16 A-1 BOILER & LAUNDRY, et al Defendants X ========================================================================= PLAINTIFFS OPPOSITION TO DEFENDANT S MOTION TO DISMISS ======================================================================== NAPOLI SHKOLNIK, PLLC Attorneys for : Plaintiff 360 Lexington Avenue, 11 th Fl. New York, New York (212) =========================================================================== The undersigned attorney hereby certifies, pursuant to 22 NYCRR a that he/she has read the within papers and that same are not frivolous as that term is defined in 22 NYCRR (c). Kardon A. Stolzman =========================================================================== Service of a copy of the within is hereby admitted. Dated, Attorney(s) for =========================================================================== PLEASE TAKE NOTICE: NOTICE OF ENTRY that the within is a (certified) true copy of an duly entered in the office of the clerk of the within named court on 200. NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named Court, at on 20 at O clock.m. Dated, Yours, etc. NAPOLI SHKOLNIK, PLLC 7 28 of 28