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MANUEL J. MENDEZ
Present: J.S.C., J.S.C.,
At the IAS Part 13 of the Supreme
Court of the State of New York, held
in and for the County of New York,
at the Courthouse located at
60 Centre Street,New York, New
MANUEL J. MEN York on the of f/Fuh ,,
SUPREME COURT OF THE STATE OF NEW YORK
ÔOUNTY OF NEW YORK
IN RE: NEW YORK CITY
ASBESTOS LITlGATION
X NYCAL
his Document Relates to: I.A.S. Part 13
(Mendez, J.)
MUNIR SEEN,
Index Nos.: 190225/2018
Plaintiff,
- against - ORDER TO SHOW CAUSE
84 LUMBER COMPANY, et al.,
Defendants.
--- ------- -------------------X
IPA SYSTEMS, INC. (PENN CRETE JOINT
COMPOUND)
Third-Party Plaintiff,
- against -
KAISER GYPSUM COMPANY, INC.,
Third-Party Defendant.
X
Upon the reading and filing of the affirmation of Mark L. Wasef, Esq., an associate of
the law firm of Lewis Brisbois Bisgaard & Smith LLP, attorneys for Defendant Kaiser Gypsum
Company, Inc., dated May 29, 2019, and the exhibits attached thereto, and upon all prior
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pleadings and proceedings herein,
Dr Sew comeÂ
LET, the Third-Party Plaintiff, or any party, appear and show cause to Honorable
Manuel Mendez, J.S.C., IAS Part 13, Courtroom 442, New York County Supreme Court,
ocated at 60 Centre Street, New York County, on the2 of TA , 2019 at (Jfq
o'clock of that day, or as soon thereafter as coüüsel can be heard,
(a) WHY, an Order should not be made and entered herein, pursuant to C.P.L.R.
§1010, to sever IPA Systems, Inc.'s (Penn Crete Joint Compound) Third-Party
Complaint against Defendant Kaiser Gypsum Company, Inc., from the underlying
action; and
.
(b) For such other and further reliefas this Court deems just and proper.
PLEASE TAKE FURTHER NOTICE, that oral argument is respectfully requested if
the motion is opposed.
ORDERED, that opposition to the instant motion, ifany, is to be served via NYSCEF on
r before 2 day of fwN-€.- , 2019. Reply papers, ifany, are to be served via NYSCEF
n or before the ay of fJNf..- , 2019.
yhs 0gppgso¾t
Sufficient case being alleged¿4et service of a copy of this Order and the papers upon
which it was granted upon Third-Party Plaintiff's counsel, McGivney, Kluger and Cook, P.C.,
ia NYSCEF and upon defense counsel via NYSCEF on or before 30 day of /h ,
2019 be deeined good and sufficient service thereof.
E N T E R:
Honorlible Manüel'Mendez, J.S.C.
MANUELJ.MENDEZ
J.S.C.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------- X
IN RE: NEW YORK CITY :
ASBESTOS LITIGATION :
-------------------------------------------------------------------- X
:
MUNIR SEEN, : INDEX NOS.: 190225/2018
:
:
Plaintiff, :
- against - : AFFIRMATION OF MARK L.
: WASEF
84 LUMBER COMPANY, et al., : IN SUPPORT OF DEFENDANT
: KAISER GYPSUM COMPANY, INC.
: MOTION TO SEVER THIRD-
Defendants. : PARTY COMPLAINT
:
:
:
-------------------------------------------------------------------- X
IPA SYSTEMS, INC. (PENN CRETE JOINT :
COMPOUND) :
:
:
Third-Party Plaintiff, :
- against - :
:
KAISER GYPSUM COMPANY, INC., :
:
:
Third-Party Defendant. :
-------------------------------------------------------------------- X
MARK L. WASEF, an attorney duly admitted to practice law in the State of
New York, hereby affirms under penalty of perjury as follows:
1. I am an associate with the law firm of Lewis Brisbois Bisgaard & Smith LLP,
attorneys for Third-Party Defendant Kaiser Gypsum Company, Inc., ("Kaiser Gypsum") in the
above-captioned third-party action, and I am familiar with the pleadings and proceedings in this
matter.
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2. This affirmation is submitted in support of Kaiser Gypsum's motion for an order,
pursuant to CPLR §1010, severing the third-party action brought by Third-Party Plaintiff, IPA
Systems, Inc. ("IPA"), and for other relief as set forth in the accompanying Memorandum of Law.
Statement of Facts
A. Procedural History
3. Plaintiff Munir Seen ("Plaintiff") brought this suit, having filed a Summons and
Complaint on August 10, 2018, along with the First Amended Complaint on August 30, 2018, and a
Second Amended Complaint on September 11, 2019 against twenty-eight (28) parties, including
IPA. True and accurate copies of Plaintiff Munir Seen's initialand amended Complaints are attached
as Exhibit A.
4. Kaiser Gypsum isnot a party to Plaintiff's direct claim. Id. This matter is included in
the NYCAL April 2019 In Extremis Trial Cluster. Per the Trial Cluster's Scheduling Order
("Scheduling Order"), all Third-Party Complaints were to be filed by January 10, 2019. A true and
accurate copy of the April 2019 In Extremis Trial Cluster Scheduling Order is attached as Exhibit B.
5. According to a letter from IPA's counsel, at his deposition on September 5, 2018
Plaintiff testified that he worked with a Kaiser Gypsum product. True and accurate copies of
Correspondences of Counsel for IPA, McGivney, Kluger, & Cook, P.C., Special Master Shelley
Olsen, and Counsel for Kaiser Gypsum, Lewis, Brisbois, Bisgaard, and Smith, LLP, dated January
30, 2019 through February 9, 2019 are attached as Exhibit C.
6. Because Kaiser Gypsum is not a party to Plaintiff's suit, Kaiser Gypsum was not
present at his deposition. Id. On January 30, 2019, IPA applied to the Special Master to file an
untimely Third-Party Complaint against Kaiser Gypsum on the basis that ithad justbecome aware of
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Kaiser's potential to be sued in NYCAL. Id. However, IPA's application was made about four
months after Plaintiff's deposition as noted above.
7. On the Special Master granted IPA's application to filea Third-
February 13, 2019,
Party Complaint against Kaiser Gypsum. A true and accurate copy of the Written Order Granting
IPA's Application to File a Third Party Complaint is attached as Exhibit D.
8. Shortly thereafter, Kaiser Gypsum filed an appeal with this Court to vacate the
Special Master's Order, which was ultimately denied on April 16, 2019. A true and accurate copy of
the Order Denying Kaiser Gypsum Company, Inc.'s Motion to Appeal the Special Master's
February 13, 2019 Order Granting IPA System Inc.'s Application to file an untimely Third-Party
Complaint is attached as Exhibit E.
9. During oral argument of the Appeal, which was held on April 3, 2019, counsel for
IPA represented to the Court that they would work with Kaiser Gypsum by sharing necessary
discovery, such as expert disclosure and paper discovery, etc., on the ground that itsproduct, Penn
Crete asbestos-containing joint compound, involved defenses similar to those available to Kaiser
Gypsum.
10. IPA served its Third-Party Complaint suing Kaiser Gypsum on April 23, 2019.
Because of such, IPA is now & adverse party to Kaiser Gypsum because it isthe third-party
plaintiffin itsaction against Kaiser Gypsum. Therefore, Kaiser Gypsum has no common interest in
sharing expert or other discovery outside of what is required by the CPLR. Kaiser Gypsum is
defending itself against IPA's claim and third party action, rather than any direct claims from any
other parties to the suit.
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11. Indeed, IPA must prove to a jury that Kaiser Gypsum's joint compound was a
substantial contributing factor in the development of Mr. Seen's disease. Kaiser Gypsum will
proffer various experts at trial, including an industrial hygienist, toxicologist, epidemiologist,
pathologist and/or pulmonologist, in support of its contention that itsjoint compound did not
proximately cause Plaintiff's claimed damages. IPA must show, though its expert testimony, that
Kaiser was a cause and therefore, Kaiser isnot aligned in interest to IPA but rather directly adverse.
12. Furthermore, on April 1, 2019, nearly seven (7) months after Plaintiff's September 9,
2018 deposition and following the exchange of discovery, the retention of experts, and the
conducting of investigations, counsel for Mr. Seen (who is living and suffering from mesothelioma)
deemed its case against IPA as being trialready, and requested trialassignment. See Exhibit F,
Plaintiff's Letter to the Special Master, dated April 1, 2019.
13. A true and accurate copy of IPA Systems, Inc. Third-Party Complaint Against Kaiser
Gypsum Company, Inc. is attached as Exhibit G.
CONCLUSION
14. For allthe foregoing reasons, Defendant Kaiser Gypsum Company, Inc.,respectfully
requests the third-party action against Kaiser Gypsum be severed from the main action pursuant to
CPLR §1010, together with such other and further relief as this Court deems just and proper.
//
//
//
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Dated: May 29, 2019
New York, New York
Respectfully submitted,
/s/Mark L. Wasef
Mark L. Wasef, Esq.
Nicholas P. Hurzeler, Esq.
LEWIS BRISBOIS BISGAARD & SMITH, LLP
Attorneys for Defendant, Kaiser Gypsum Company, Inc..
21"
77 Water Street, Floor
New York, New York 10005
Tel. (212) 232-1300
Fax (212) 232-1399
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------- X
IN RE: NEW YORK CITY :
ASBESTOS LITIGATION :
-------------------------------------------------------------------- X
:
MUNIR SEEN, : INDEX NO.: 190225/2018
:
:
Plaintiff, :
- against - :
:
84 LUMBER COMPANY, et al., :
:
:
Defendants. :
-------------------------------------------------------------------- X
IPA SYSTEMS, INC. (PENN CRETE JOINT :
COMPOUND) :
:
:
Third-Party Plaintiff, :
- against - :
:
KAISER GYPSUM COMPANY, INC., :
:
:
Third-Party Defendant. :
____________________________________________________________________
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT KAISER GYPSUM COMPANY, INC.'S
MOTION TO SEVER THE THIRD-PARTY COMPLAINT
LEWIS BRISBOIS BISGAARD & SMITH, LLP
77 Water Street, 21st Floor
New York, New York 10005
Attorneys for Defendant,
KAISER GYPSUM COMPANY, INC.
Tel. (212) 232-1300
Fax (212) 232-1399
Of Counsel & On the Brief
Mark Wasef, Esq.
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PRELIMINARY STATEMENT
Third-party defendant, Kaiser Gypsum Company, Inc. ("Kaiser Gypsum"), respectfully
submits this memorandum of law in support of itsmotion for an Order pursuant to CPLR 1010
severing the third-party action brought by the Third-Party plaintiff, IPA Systems, Inc. ("IPA"). A
trialof the third-party action with the main action will unduly prejudice Kaiser Gypsum and burden
the Plaintiff, Munir Seen, with unjustified, undue delays.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Plaintiff Munir Seen ("Plaintiff") brought this suit, having filed a Summons and Complaint
on August 10, 2018, along with the First Amended Complaint on August 30, 2018, and a Second
Amended Complaint on September 11, 2019 against twenty-eight (28) parties, including IPA. See
Exhibit A, Plaintiff's Initial and Amended Complaints.
Kaiser Gypsum is not a party to Plaintiff's direct claim. Id. This matter is included in the
NYCAL April 2019 In Extremis Trial Cluster. Per the TrialCluster's Scheduling Order ("Scheduling
Order"), allThird-Party Complaints were to be filed by January 10, 2019. See Exhibit B, April 2019
In Extremis Trial Cluster Scheduling Order.
According to a letter from IPA's counsel, at his deposition on September 5, 2018 Plaintiff
testified that he worked with a Kaiser Gypsum product. See Exhibit C, Correspondences of Counsel
for IPA, McGivney, Kluger, & Cook, P.C., Special Master Shelley Olsen, and Counsel for Kaiser
Gypsum, Lewis, Brisbois, Bisgaard, and Smith, LLP, dated January 30, 2019 through February 9,
2019.
Because Kaiser Gypsum is not a party to Plaintiff's suit,Kaiser Gypsum was not present at
his deposition. Id. On IPA applied to the Special Master to filean Third-
January 30, 2019, untimely
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Party Complaint against Kaiser Gypsum on the basis that it had just become aware of Kaiser's
potential to be sued in NYCAL. Id. However, IPA's application was made about four months after
Plaintiff's deposition as noted above.
On February 13, 2019, the Special Master granted IPA's application to file a Third-Party
Complaint against Kaiser Gypsum. See Exhibit D, Written Order Granting IPA's Application to File
a Third Party Complaint. Shortly thereafter, Kaiser Gypsum filed an appeal with this Court to vacate
the Special Master's Order, which was ultimately denied on April 16, 2019. See Exhibit E, Order
Denying Kaiser Gypsum Company, Inc.'s Motion to Appeal the Special Master's February 13, 2019
Order Granting IPA System Inc.'s Application to file an untimely Third-Party Complaint.
During oral argument of the Appeal, which was held on April 3, 2019, counsel for IPA
represented to the Court that they would work with Kaiser Gypsum by sharing necessary discovery,
such as expert disclosure and paper discovery, etc., on the ground that itsproduct, Penn Crete
asbestos-containing joint compound, involved defenses similar to those available to Kaiser Gypsum.
IPA served its Third-Party Complaint suing Kaiser Gypsum on April 23, 2019. Because of
such, IPA is now & adverse party to Kaiser Gypsum because itis the third-party plaintiff in its
action against Kaiser Gypsum. Therefore, Kaiser Gypsum has no common interest in sharing expert
or other discovery outside of what is required by the CPLR. Kaiser Gypsum is defending itself
against IPA's claim and third party action, rather than any direct claims from any other parties to the
suit.
Indeed, IPA must prove to a jury that Kaiser Gypsum's joint compound was a substantial
contributing factor in the development of Mr. Seen's disease. Kaiser Gypsum will proffer various
experts at trial,including an industrial hygienist, toxicologist, epidemiologist, pathologist and/or
pulmonologist, in support of its contention that its joint compound did not proximately cause
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Plaintiff's claimed damages. IPA must show, though its expert testimony, that Kaiser was a cause
and therefore, Kaiser is not aligned in interest to IPA but rather directly adverse.
Furthermore, on April 1, 2019, nearly seven (7) months after Plaintiff's September 9, 2018
deposition and following the exchange of discovery, the retention of experts, and the conducting of
investigations, counsel for Mr. Seen (who is living and suffering from mesothelioma) deemed its
case against IPA as being trial ready, and requested trialassignment. See Exhibit F, Plaintiff's Letter
to the Special Master, dated April 1, 2019.
Therefore, because of the posture of the parties and the undue delay caused by IPA Systems,
as well as the reasons outlined above, this matter should be severed, pursuant to CPLR 1010.
L ARGUMENT
CPLR 1010 states:
The court may dismiss a third-party complaint without prejudice, order a separate
trial of the third-party claim or of any separate issue thereof, or make such other
order as may be just. In exercising itsdiscretion, the court shall consider whether the
controversy between third-party plaintiff and the third-party defendant will unduly
delay the determination of the main action or prejudice the substantial rights of any
party.
In considering severance, the Court, in exercising its discretion, should consider the following
factors: (1) whether the commencement of the third-party action was done after discovery was
completed; (2) the undue delay from the commencement of the original action; (3) the absence of
any reasonable justification for the delay; (4) the awareness of the third-party claim well before
commencement of such action; and (5) the resulting prejudice to the plaintiff and the third-party
defendant. Admiral Indemnity Co. v.Popular Plumbing Heating Corp., 127 A.D.3d 419, 7 N.Y.S.3d
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FILED: FILED : NEW NEW YORK YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF N F DOC. DOC. NO. NO. 332 183 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 MANUEL J. MENDEZ Present: J.S.C., J.S.C., At the IAS Part 13 of the Supreme Court of the State of New York, held in and for the County of New York, at the Courthouse located at 60 Centre Street,New York, New MANUEL J. MEN York on the of f/Fuh ,, SUPREME COURT OF THE STATE OF NEW YORK ÔOUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITlGATION X NYCAL his Document Relates to: I.A.S. Part 13 (Mendez, J.) MUNIR SEEN, Index Nos.: 190225/2018 Plaintiff, - against - ORDER TO SHOW CAUSE 84 LUMBER COMPANY, et al., Defendants. --- ------- -------------------X IPA SYSTEMS, INC. (PENN CRETE JOINT COMPOUND) Third-Party Plaintiff, - against - KAISER GYPSUM COMPANY, INC., Third-Party Defendant. X Upon the reading and filing of the affirmation of Mark L. Wasef, Esq., an associate of the law firm of Lewis Brisbois Bisgaard & Smith LLP, attorneys for Defendant Kaiser Gypsum Company, Inc., dated May 29, 2019, and the exhibits attached thereto, and upon all prior 11odif129 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 /30/20 03:20 PM PMI INDEX 1NDEX NO. ÏÏU. 190225/2018 I U22bj2U18 NYSCEF NYSCEF DOC. DOC. NO. NO. 332 183 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 pleadings and proceedings herein, Dr Sew come LET, the Third-Party Plaintiff, or any party, appear and show cause to Honorable Manuel Mendez, J.S.C., IAS Part 13, Courtroom 442, New York County Supreme Court, ocated at 60 Centre Street, New York County, on the2 of TA , 2019 at (Jfq o'clock of that day, or as soon thereafter as coüüsel can be heard, (a) WHY, an Order should not be made and entered herein, pursuant to C.P.L.R. §1010, to sever IPA Systems, Inc.'s (Penn Crete Joint Compound) Third-Party Complaint against Defendant Kaiser Gypsum Company, Inc., from the underlying action; and . (b) For such other and further reliefas this Court deems just and proper. PLEASE TAKE FURTHER NOTICE, that oral argument is respectfully requested if the motion is opposed. ORDERED, that opposition to the instant motion, ifany, is to be served via NYSCEF on r before 2 day of fwN-€.- , 2019. Reply papers, ifany, are to be served via NYSCEF n or before the ay of fJNf..- , 2019. yhs 0gppgso¾t Sufficient case being alleged¿4et service of a copy of this Order and the papers upon which it was granted upon Third-Party Plaintiff's counsel, McGivney, Kluger and Cook, P.C., ia NYSCEF and upon defense counsel via NYSCEF on or before 30 day of /h , 2019 be deeined good and sufficient service thereof. E N T E R: Honorlible Manüel'Mendez, J.S.C. MANUELJ.MENDEZ J.S.C. 4828-0334-0184.1 2 22odif129 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05/30/2019 03:20 12 : 37 PM PM INDEX INDEX NO. NO. 190225/2018 190225/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- X IN RE: NEW YORK CITY : ASBESTOS LITIGATION : -------------------------------------------------------------------- X : MUNIR SEEN, : INDEX NOS.: 190225/2018 : : Plaintiff, : - against - : AFFIRMATION OF MARK L. : WASEF 84 LUMBER COMPANY, et al., : IN SUPPORT OF DEFENDANT : KAISER GYPSUM COMPANY, INC. : MOTION TO SEVER THIRD- Defendants. : PARTY COMPLAINT : : : -------------------------------------------------------------------- X IPA SYSTEMS, INC. (PENN CRETE JOINT : COMPOUND) : : : Third-Party Plaintiff, : - against - : : KAISER GYPSUM COMPANY, INC., : : : Third-Party Defendant. : -------------------------------------------------------------------- X MARK L. WASEF, an attorney duly admitted to practice law in the State of New York, hereby affirms under penalty of perjury as follows: 1. I am an associate with the law firm of Lewis Brisbois Bisgaard & Smith LLP, attorneys for Third-Party Defendant Kaiser Gypsum Company, Inc., ("Kaiser Gypsum") in the above-captioned third-party action, and I am familiar with the pleadings and proceedings in this matter. 4840-2388-2904.1 3 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05 /30 /2019 03:20 12 : 37 PM INDEX INDEX NO. NO. 190225/2018 190225/2018 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 2. This affirmation is submitted in support of Kaiser Gypsum's motion for an order, pursuant to CPLR §1010, severing the third-party action brought by Third-Party Plaintiff, IPA Systems, Inc. ("IPA"), and for other relief as set forth in the accompanying Memorandum of Law. Statement of Facts A. Procedural History 3. Plaintiff Munir Seen ("Plaintiff") brought this suit, having filed a Summons and Complaint on August 10, 2018, along with the First Amended Complaint on August 30, 2018, and a Second Amended Complaint on September 11, 2019 against twenty-eight (28) parties, including IPA. True and accurate copies of Plaintiff Munir Seen's initialand amended Complaints are attached as Exhibit A. 4. Kaiser Gypsum isnot a party to Plaintiff's direct claim. Id. This matter is included in the NYCAL April 2019 In Extremis Trial Cluster. Per the Trial Cluster's Scheduling Order ("Scheduling Order"), all Third-Party Complaints were to be filed by January 10, 2019. A true and accurate copy of the April 2019 In Extremis Trial Cluster Scheduling Order is attached as Exhibit B. 5. According to a letter from IPA's counsel, at his deposition on September 5, 2018 Plaintiff testified that he worked with a Kaiser Gypsum product. True and accurate copies of Correspondences of Counsel for IPA, McGivney, Kluger, & Cook, P.C., Special Master Shelley Olsen, and Counsel for Kaiser Gypsum, Lewis, Brisbois, Bisgaard, and Smith, LLP, dated January 30, 2019 through February 9, 2019 are attached as Exhibit C. 6. Because Kaiser Gypsum is not a party to Plaintiff's suit, Kaiser Gypsum was not present at his deposition. Id. On January 30, 2019, IPA applied to the Special Master to file an untimely Third-Party Complaint against Kaiser Gypsum on the basis that ithad justbecome aware of 4840-2388-2904.1 2 4 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05/30/2019 03:20 12 : 37 PM INDEX INDEX NO. NO. 190225/2018 190225/2018 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 Kaiser's potential to be sued in NYCAL. Id. However, IPA's application was made about four months after Plaintiff's deposition as noted above. 7. On the Special Master granted IPA's application to filea Third- February 13, 2019, Party Complaint against Kaiser Gypsum. A true and accurate copy of the Written Order Granting IPA's Application to File a Third Party Complaint is attached as Exhibit D. 8. Shortly thereafter, Kaiser Gypsum filed an appeal with this Court to vacate the Special Master's Order, which was ultimately denied on April 16, 2019. A true and accurate copy of the Order Denying Kaiser Gypsum Company, Inc.'s Motion to Appeal the Special Master's February 13, 2019 Order Granting IPA System Inc.'s Application to file an untimely Third-Party Complaint is attached as Exhibit E. 9. During oral argument of the Appeal, which was held on April 3, 2019, counsel for IPA represented to the Court that they would work with Kaiser Gypsum by sharing necessary discovery, such as expert disclosure and paper discovery, etc., on the ground that itsproduct, Penn Crete asbestos-containing joint compound, involved defenses similar to those available to Kaiser Gypsum. 10. IPA served its Third-Party Complaint suing Kaiser Gypsum on April 23, 2019. Because of such, IPA is now & adverse party to Kaiser Gypsum because it isthe third-party plaintiffin itsaction against Kaiser Gypsum. Therefore, Kaiser Gypsum has no common interest in sharing expert or other discovery outside of what is required by the CPLR. Kaiser Gypsum is defending itself against IPA's claim and third party action, rather than any direct claims from any other parties to the suit. 4840-2388-2904.1 3 5 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05/30 /2019 03:20 12 : 37 PM INDEX INDEX NO. NO. 190225/2018 190225/2018 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 11. Indeed, IPA must prove to a jury that Kaiser Gypsum's joint compound was a substantial contributing factor in the development of Mr. Seen's disease. Kaiser Gypsum will proffer various experts at trial, including an industrial hygienist, toxicologist, epidemiologist, pathologist and/or pulmonologist, in support of its contention that itsjoint compound did not proximately cause Plaintiff's claimed damages. IPA must show, though its expert testimony, that Kaiser was a cause and therefore, Kaiser isnot aligned in interest to IPA but rather directly adverse. 12. Furthermore, on April 1, 2019, nearly seven (7) months after Plaintiff's September 9, 2018 deposition and following the exchange of discovery, the retention of experts, and the conducting of investigations, counsel for Mr. Seen (who is living and suffering from mesothelioma) deemed its case against IPA as being trialready, and requested trialassignment. See Exhibit F, Plaintiff's Letter to the Special Master, dated April 1, 2019. 13. A true and accurate copy of IPA Systems, Inc. Third-Party Complaint Against Kaiser Gypsum Company, Inc. is attached as Exhibit G. CONCLUSION 14. For allthe foregoing reasons, Defendant Kaiser Gypsum Company, Inc.,respectfully requests the third-party action against Kaiser Gypsum be severed from the main action pursuant to CPLR §1010, together with such other and further relief as this Court deems just and proper. // // // 4840-2388-2904.1 4 6 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05/30/2019 03:20 12 : 37 PM INDEX INDEX NO. NO. 190225/2018 190225/2018 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 Dated: May 29, 2019 New York, New York Respectfully submitted, /s/Mark L. Wasef Mark L. Wasef, Esq. Nicholas P. Hurzeler, Esq. LEWIS BRISBOIS BISGAARD & SMITH, LLP Attorneys for Defendant, Kaiser Gypsum Company, Inc.. 21" 77 Water Street, Floor New York, New York 10005 Tel. (212) 232-1300 Fax (212) 232-1399 4840-2388-2904.1 5 7 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05/30/2019 03:20 12 : 37 PM INDEX INDEX NO. NO. 190225/2018 190225/2018 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- X IN RE: NEW YORK CITY : ASBESTOS LITIGATION : -------------------------------------------------------------------- X : MUNIR SEEN, : INDEX NO.: 190225/2018 : : Plaintiff, : - against - : : 84 LUMBER COMPANY, et al., : : : Defendants. : -------------------------------------------------------------------- X IPA SYSTEMS, INC. (PENN CRETE JOINT : COMPOUND) : : : Third-Party Plaintiff, : - against - : : KAISER GYPSUM COMPANY, INC., : : : Third-Party Defendant. : ____________________________________________________________________ MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT KAISER GYPSUM COMPANY, INC.'S MOTION TO SEVER THE THIRD-PARTY COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH, LLP 77 Water Street, 21st Floor New York, New York 10005 Attorneys for Defendant, KAISER GYPSUM COMPANY, INC. Tel. (212) 232-1300 Fax (212) 232-1399 Of Counsel & On the Brief Mark Wasef, Esq. 4829-7743-8103.1 8 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05 /30 /2019 03:20 12 : 37 PM INDEX INDEX NO. NO. 190225/2018 190225/2018 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 PRELIMINARY STATEMENT Third-party defendant, Kaiser Gypsum Company, Inc. ("Kaiser Gypsum"), respectfully submits this memorandum of law in support of itsmotion for an Order pursuant to CPLR 1010 severing the third-party action brought by the Third-Party plaintiff, IPA Systems, Inc. ("IPA"). A trialof the third-party action with the main action will unduly prejudice Kaiser Gypsum and burden the Plaintiff, Munir Seen, with unjustified, undue delays. STATEMENT OF FACTS AND PROCEDURAL HISTORY Plaintiff Munir Seen ("Plaintiff") brought this suit, having filed a Summons and Complaint on August 10, 2018, along with the First Amended Complaint on August 30, 2018, and a Second Amended Complaint on September 11, 2019 against twenty-eight (28) parties, including IPA. See Exhibit A, Plaintiff's Initial and Amended Complaints. Kaiser Gypsum is not a party to Plaintiff's direct claim. Id. This matter is included in the NYCAL April 2019 In Extremis Trial Cluster. Per the TrialCluster's Scheduling Order ("Scheduling Order"), allThird-Party Complaints were to be filed by January 10, 2019. See Exhibit B, April 2019 In Extremis Trial Cluster Scheduling Order. According to a letter from IPA's counsel, at his deposition on September 5, 2018 Plaintiff testified that he worked with a Kaiser Gypsum product. See Exhibit C, Correspondences of Counsel for IPA, McGivney, Kluger, & Cook, P.C., Special Master Shelley Olsen, and Counsel for Kaiser Gypsum, Lewis, Brisbois, Bisgaard, and Smith, LLP, dated January 30, 2019 through February 9, 2019. Because Kaiser Gypsum is not a party to Plaintiff's suit,Kaiser Gypsum was not present at his deposition. Id. On IPA applied to the Special Master to filean Third- January 30, 2019, untimely 4829-7743-8103.1 1 9 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05 /30 /2019 03:20 12 : 37 PM INDEX INDEX NO. NO. 190225/2018 190225/2018 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 Party Complaint against Kaiser Gypsum on the basis that it had just become aware of Kaiser's potential to be sued in NYCAL. Id. However, IPA's application was made about four months after Plaintiff's deposition as noted above. On February 13, 2019, the Special Master granted IPA's application to file a Third-Party Complaint against Kaiser Gypsum. See Exhibit D, Written Order Granting IPA's Application to File a Third Party Complaint. Shortly thereafter, Kaiser Gypsum filed an appeal with this Court to vacate the Special Master's Order, which was ultimately denied on April 16, 2019. See Exhibit E, Order Denying Kaiser Gypsum Company, Inc.'s Motion to Appeal the Special Master's February 13, 2019 Order Granting IPA System Inc.'s Application to file an untimely Third-Party Complaint. During oral argument of the Appeal, which was held on April 3, 2019, counsel for IPA represented to the Court that they would work with Kaiser Gypsum by sharing necessary discovery, such as expert disclosure and paper discovery, etc., on the ground that itsproduct, Penn Crete asbestos-containing joint compound, involved defenses similar to those available to Kaiser Gypsum. IPA served its Third-Party Complaint suing Kaiser Gypsum on April 23, 2019. Because of such, IPA is now & adverse party to Kaiser Gypsum because itis the third-party plaintiff in its action against Kaiser Gypsum. Therefore, Kaiser Gypsum has no common interest in sharing expert or other discovery outside of what is required by the CPLR. Kaiser Gypsum is defending itself against IPA's claim and third party action, rather than any direct claims from any other parties to the suit. Indeed, IPA must prove to a jury that Kaiser Gypsum's joint compound was a substantial contributing factor in the development of Mr. Seen's disease. Kaiser Gypsum will proffer various experts at trial,including an industrial hygienist, toxicologist, epidemiologist, pathologist and/or pulmonologist, in support of its contention that its joint compound did not proximately cause 4829-7743-8103.1 2 10 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05 /30 /2019 03:20 12 : 37 PM INDEX INDEX NO. NO. 190225/2018 190225/2018 PM) NYSCEF NYSCEF DOC. DOC. NO. NO. 184 332 RECEIVED RECEIVED NYSCEF: NYSCEF: 10/02/2019 05/30/2019 Plaintiff's claimed damages. IPA must show, though its expert testimony, that Kaiser was a cause and therefore, Kaiser is not aligned in interest to IPA but rather directly adverse. Furthermore, on April 1, 2019, nearly seven (7) months after Plaintiff's September 9, 2018 deposition and following the exchange of discovery, the retention of experts, and the conducting of investigations, counsel for Mr. Seen (who is living and suffering from mesothelioma) deemed its case against IPA as being trial ready, and requested trialassignment. See Exhibit F, Plaintiff's Letter to the Special Master, dated April 1, 2019. Therefore, because of the posture of the parties and the undue delay caused by IPA Systems, as well as the reasons outlined above, this matter should be severed, pursuant to CPLR 1010. L ARGUMENT CPLR 1010 states: The court may dismiss a third-party complaint without prejudice, order a separate trial of the third-party claim or of any separate issue thereof, or make such other order as may be just. In exercising itsdiscretion, the court shall consider whether the controversy between third-party plaintiff and the third-party defendant will unduly delay the determination of the main action or prejudice the substantial rights of any party. In considering severance, the Court, in exercising its discretion, should consider the following factors: (1) whether the commencement of the third-party action was done after discovery was completed; (2) the undue delay from the commencement of the original action; (3) the absence of any reasonable justification for the delay; (4) the awareness of the third-party claim well before commencement of such action; and (5) the resulting prejudice to the plaintiff and the third-party defendant. Admiral Indemnity Co. v.Popular Plumbing Heating Corp., 127 A.D.3d 419, 7 N.Y.S.3d 4829-7743-8103.1 3 11 of 119 FILED:: (FILED NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 10/02/2019 05/30 /2019 03:20 12 : 37 PM INDEX