SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK COUNTY NYCAL ASBESTOS LITIGATION LA.S. Part 13 This Document Relates To: (Hon. Manuel J. Mendez) KELLY CONNOR, Personal Representative of, Index No.: 190147/2015 the Estate of RAYMOND FLOOD, deceased, Plaintiff, NOTICE OF ENTRY OF DECISION -against- AND ORDER ON MOTION ANTHONY & SYLVAN CORP., et al. Defendants. PLEASE TAKE NOTICE that annexed is a true and correct copy of the January 17, 2018 Decision and Order entered with respect to the above-captioned action and filed in the office of the New York County Clerk of the State of New York on January 18, 2018. Dated: Newark, New Jersey January JR, 2018 ECKERT SEAMANS CHERIN & MELLOTT, LLC By: Michael A. Pos etz, Esq. Attorneys fo Jefendant Pentair Water Pool and Spa, Inc., /k/a Pentair Pool Products, Inc. Four Gateway Center Suite 401 100 Mulberry Street Newark, New Jersey 07102 (973) 855-4705 TO: Sinunons Hanley Conroy 112 Madison Avenue New York, NY 10016 ALL DEFENSE COUNSEL OF RECORD (via NYSCEF) (50066706.1)
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: MANUELJ.MENDEZ PART13 Justice IN RE: NEW YORK CITY ASBESTOS LITIGATION INDEX No. 190147/15 MARY MURPHY-CLAGETT as Temporary Adminstrator for the Estate of PIETRO MACALUSO, MOTION DATE 01-10-2018 JOSEPH FLEIGNER, MOTION SEQ. NO. 008 RUTH STORY, Individually and as legal representative MOTION CAL. NO. of the Estate of EUGENE STORY, KELLY CONNOR, Personal Representative of the Estate of RAYMOND FLOOD, Deceased, - against - Plaintiffs, A.0 SMITH WATER PRODUCTS, et al., Defendants. The following papers, numbered 1 to 6_ were read on this motion to renew and reargue by Defendant.. PENTAIR WATER POOL and SPA INC.: ø PAPERS NUMBERED O Notice of Motion/ Order to Show Cause - Affidavits - Exhibits... 1-3 tu to ~ Answering Affidavits - Exhibits 4 O tu I-- g Replying Affidavits 5-6 V) ~ Cross-Motion: U Yes X No O O Upon a reading of the foregoing cited papers it is ordered that defendant Pentair tu ~ Water Pool and Spa Inc.'s motion in the case of Kelly Connor, Personal Representative M P of the Estate of Raymond Flood, Deceased, seeking to renew and reargue the May 17, 2017 Decision and Order of this Court filed under Motion Sequence 003, is denied. u. I Plaintiff under Motion Sequence 003 sought to consolidate this action for trial with three other Asbestos related actions identified in the caption. This Court's May 17, ~ u. 2017 Decision and Order filed under Motion Sequence 003 granted the motion to the extent of consolidating this action with that of Mary Murphy-Clagett as Temporary u. Administrator for the Estate of Pietro Macaluso v. A.O. Smith Corporation, et al., filed under index # 190311i2015 (hereinafter referred to as "the Macaluso case"). The iol remainder of the relief sought was denied. u.i Pentair Water Pool and Spa Inc.'s (hereinafter referred to as "Pentair") motion pursuant to CPLR 2221 [d]and fe] seeks to renew and reargue the May 17, 2017 Decision and Order of this Court filed under Motion Sequence 003. Pentair previously sought to renew and reargue the May 17, 2017 Decision and o Order of this Court by Order to Show Cause filed under Motion Sequence 007, the Court z declined to sign the Order to Show Cause. Pentair seeks renewal arguing that as a O result of settlements subsequent to the May 17, 2017 Decision and Order, this action and the Macaluso action no longer have common defendants and the two cases are not X sufficiently otherwise related warranting denial of consolidation. Renewal applies to the submission of new evidence not available at the time the original motion was submitted (Laura Vazquez v. JRG Realty Corp., 81 A.D. 3d 555, 917 1 of 3
N.Y.S. 2d 562 [1** Dept. 2011]). A motion that is described as one for leave to renew and reargue may be treated exclusively as a motion to reargue, where it is not based upon new facts unavailable at the time of the prior motion and does not offer a reasonable justification for failure to present the new facts at the time of the original motion (Navarette [2nd v. Alexiades, 50 A.D. 3d 873, 855 N.Y.S. 2d 649 Dept.,2008] and Onglingswan v. Chase Home Finance, LLC, 104 A.D. 3d 543, 104 N.Y.S. 2d 149 Dept., 2013]). Renewal is not chance" available to parties that seek a "second because of failure to exercise due diligence (Galisia v. Espinal 149 A.D. 3d 544, 50 N.Y.S. 2d 266 Dept. 2017]). Pentair has not stated a reason for renewal, there has been no showing of new evidence that could not have been provided at the time the motion to consolidate filed under Motion Sequence 003 was submitted. It is no secret that these NYCAL cases have a large number of defendants, most of which settle prior to or even during the trial. It takes weeks to select a jury and months to complete a trial of one of these cases. The fact that there are no longer common defendants almost eight months after this Court rendered its decision on a trial ready case, without a greater evidentiary showing is not enough to grant renewal. This motion will be treated as a motion to reargue. The Court has discretion to grant a motion to reargue upon a showing that it, "overlooked or misapprehended the relevant facts, or misapplied any controlling principle law" of (Foley v. Roche, 68 A.D. 2d 558, 418 N.Y.S. 2d 588 [1st Dept., 1979]). Pursuant to CPLR 2221[d][2], reargument is not intended to afford an unsuccessful party successive opportunities to argue issues previously decided, merely restate previously unsuccessful arguments, or to present arguments different from those originally asserted (DeSoignies v. Tenants' Cornasesk House Corp., 21 A.D. 3d 715, 800 N.Y.S. 2d 679 Dept., 2005) and [15' Mangine v. Keller, 182 A.D. 2d 476, 581 N.Y.S. 2d 793 Dept., 1992]). This Court's May 17, 2017 Decision and Order found multiple factors that the two plaintiffs in the consolidated action had in common. The factors included more than the same attorneys: (1) both were deceased and had Mesothelioma; (2) both had exposure to asbestos dust at least partially in a similar manner as people working in or around products containing asbestos during construction and from insulation materials; and (3) there was overlap in the period of exposure from 1972 through 1984. Pentair's arguments that there was no common defendant, that peritoneal mesothelioma is a distinct disease from pleural mesothelioma, and that there was different type of work exposure, were previously raised and deemed insufficient to deny consolidation. Pursuant to CPLR 602 consolidation lies within the sound discretion of the Court, but is generally favored where there are common questions of law or fact, unless the party opposing the motion demonstrates prejudice of a substantial right in a specific, non-conclusory manner. The burden is on the party opposing the motion to demonstrate prejudice (in Re New York City Asbestos Litigation Konstantin and Dummit, 121 A.D.3d 230, 990 N.Y.S.2d 174, 2014 N.Y. Slip Op 05054 ([15'. Dept. 2014]; Champagne v. Consolidated R.R. Corp., 94 A.D.2d 738, 462 N.Y.S.2d 491 [2nd. Dept. 1983]; Progressive Insurance Company v. Vasquez, 10 A.D.3d 518, 782 N.Y.S.2d 21 [15'. Dept. 2004] ;Amcan 15' Holdings, inc. v. Torys LLP, 32 A.D. 3d 337, 821 N.Y.S. 2d 162 (N.Y.A.D. Dept. 2006). Consideration in evaluating consolidation of asbestos cases should be given to the following factors: "(1) Common work site; (2) Similar occupation; (3) Similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs are represented by the same counsel; and (8) types of cancer alleged ( Malcolm v. National Gypsum Co., 995 F.2d 346, 25 Fed. R. Serv.3d 801 [2nd. Circuit 1993]). Not all of these factors need be present and consolidation is appropriate so long as individual issues do not predominate over the common questions of law and fact ( See CPLR 602(a); in re New York City Asbestos [1S' Litigation (Konstantin), 121 A.D.3d 230, 990 N.Y.S. 2d 174 Dept. 2014]). This Court's May 17, 2017 Decision and Order properly addressed the multiple factors to be given consideration in evaluating consolidation of asbestos cases. In re 2 of 3
New York City Asbestos Litigation (Konstantin), 27 N.Y. 3d 1172, 59 N.E. 2d 1197, 38 N!Y.S. 3d 85 [2016] the Court of Appeals affirmed the Appellate Division First Department, determining that defendants objections to consolidation of the remaining two cases after settlement were unpreserved. There was no finding that the initial consolidation of seven cases for trial was improper. Pentair has not shown that this Court overlooked or misapprehended the law or facts. Pentair has not stated a reason to grant reargument and is merely restating prior unsuccessful arguments., Accordingly, it is ORDERED that defendant Pentair Water Pool and Spa Inc.'s motion in the case of Kelly Connor, Personal Representative of the Estate of Raymond Flo'od, Deceased, seeking to renew and reargue the May 17, 2017 Decision and Order of this Court filed under Motion Sequence 003, is denied. ENTER: MANUEL J. MENDEZ Dated: January 17, 2018 J.S.c MA UELJ.M NDEZ J.S.C. c, Check one: O FINAL DISPOSITION X NON-FINAL DISPOSITION - Check if appropriate: O DO NOT POST O REFERENCE 3 of 3