Order to Show Cause: Stacey Lynn Brown as Administratrix of the Estate of STEVEN L. HALL, deceased v. A.O. Smith Water Products, Air & Liquid Systems Corporation, as Successor by Merger to Buffalo Pumps, Inc., Alfa Laval, Inc., Allegheny Teledyne Incorporated, Individually and as Successor to Allegheny Technologies Incorporated and Farris Valves and/or Sprague Pumps, Amec Construction Management, Inc., Amtrol, Inc., Individually and as Successor to Thrush Products, Inc., Armstrong International, Inc., Auburn Technology, Inc. f/k/a Alco Power, Inc., Atwood & Morrill Co., Inc. d/b/a Weir Valves & Controls USA Inc., Aurora Pump Company, Bechtel Corporation, Blackmer Pump, Borgwarner Morse Tec Llc, Bw/Ip International Co., formerly known as Borg Warner Industrial Products Inc., a former subsidiary of and successor to Borg Warner Corp. and Byron Jackson Pumps, Carrier Corporation, Cbs Corporation, a Delaware Corporation, f/k/a Viacom Inc, Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation, Certain-Teed Corporation, Clark-Reliance Corporation, Individually and as Successor to Jerguson, Cleaver-Brooks Company f/k/a Aqua-Chem, Inc., Courter & Company, Inc., Crane Co., Individually and as Successor to Cochrane, Croll-Reynolds Engineering Company, Inc., Crosby Valve And Gage Company, Crosby Valve, Inc., Cytec Engineered Materials, Inc. f/k/a Fiberite Corporation and a/k/a ICI Composites, Inc., Cytec Industries Inc., Individually and as successor to American Cyanamid Company, Dean Pump Division, Dezurik, Inc., Durez Corporation, E.I. Team, Inc. f/k/a J.L. Murphy, Inc., Electrolux Home Products, Inc., Individually and as Successor to Tappan and Copes-Vulcan, Elliott Turbomachinery Co., Inc., Fairbanks Company (The), Individually and as Successor to Fairbanks Valves, Flowserve Us, Inc., solely as Successor to Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. and Edward Vogt Valve Company, Fmc Corporation, Individually and as Successor to Northern Pump Company, Coffin and Peerless Pump Company, Foster Wheeler, Llc, Gardner Denver, Inc., General Electric Company, Genuine Partscompany, George A. Fuller Company, Georgia-Pacific Corporation, Individually and as successor to Bestwall Gypsum Company, Gg Of Florida, Inc., f/k/a Higbee, Inc., Goodall Rubber Co., Goulds Pumps, Inc., Greene, Tweed & Co., Llp, Individually and as Successor to Palmetto Packings, Grinnell Corporation, Henry Technologies, Inc., Honeywell International, Inc., Individually and f/k/a AlliedSignal, Inc., and as Successor-in-interest to the Bendix Corp., Howden Buffalo, Inc., Individually and as Successor-In-Interest to FB Sturtevant, The Howden Buffalo Group and Buffalo Fan, I.T.T. Industries, Inc., Individually and as successor to Bell & Gossett, Imo Industries, Inc. f/k/a Delaval, Inc., Individually and as Successor to Turbine Equipment Company, Jenkins Bros., John Crane, Inc., Koppers Company, Inc., Koppers Industries, Inc., Maremont Corporation, Individually and as Successor to Grizzly, Metropolitan Life Insurance Co., Morse Diesel, Inc., Morse Diesel International, Inc., Napa Auto Parts a/k/a National Automotive Parts Association, Nash Engineering Company (The), Northrop Grumman Corporation, Individually and as Successor to George A. Fuller Company, Occidental Chemical Corporation, Individually and as Successor to Durez Corporation, Owens-Illinois, Inc., Patterson Pump Company, a Subsidiary of the Gorman-Rupp Company and Individually and as successor to C.H. Wheeler Manufacturing and Griscom Russell, Plastics Engineering Company, Individually and as Successor to Plenco, Pneumo Abex Corporation, Pneumo-Abex Llc, Individually and as Successor to Abex Corporation, a Delaware Corporation, Research-Cottrell, Inc. n/k/a AWT Air Company, Inc., Riley Power, Inc. f/k/a Babcock Borsig Power, Inc. and f/k/a Riley Stoker Corporation d/b/a DB Riley, Inc., Rogers Corporation, Spence Engineering Company, Inc., Spirax Sarco, Inc., Spx Cooling Technologies, Inc., Individually as successor to Marley Cooling Technologies and Marley Cooling Towers, Superior Lidgerwood Mundy Corp., a/k/a Lidgerwood Manufacturing Co., Individually and as Successor to M.T. Davidson Co., Thomas O'Connor & Company, Inc., Currently known as O'Connor Constructors, Inc., Treadwell Corporation, Thrush Co., Inc., Turner Construction Company, Tuthill Corporation, Individually and as Successor to Kinney Vacuum Pump Company, Kinney Pump Company and Murray Turbine, Tyco Flow Control, Inc., Individually and as Successor to Keystone and Grinnell Corporation, Tyco International (Us) Inc., Individually and as Successor to Hancock Valves, Keystone, Lonergan Valves, Union Carbide Corporation, United Conveyor Corporation, Velan Valve Corp., Warren Pumps, Llc, Individually and as Successor to The Quimby Pump Company, Wolff & Munier, Inc., William Powell Company (The), York International Corporation, Individually and as Successor to Frick Company, Yuba Heat Transfer, a division of Connell Limited Partnership n/k/a SPX Heat Transfer LLC, Zurn Industries, Inc. a/k/a and Successor-in-Interest to Erie City Iron Works, R.T Vanderbilt Company, Inc., Individually And As Successor To International Tale Co., International Pulp Co., And Governeur Tale Co., Inc., Ace Hardware, Ace Hardware Corporation, Duro Dyne Corporation, Hexion Specialty Chemicals, Inc. F/K/A Borden Chemical, Inc., I.T.T. Industries, Inc., Individually And As Successor To Hoffman Specialty, Bell & Gossett, And Foster Engineering, Lighttolier Incorporated, Progress Lighting, Inc., Sid Harvey Industries, Inc., Sid Harvey Supply, Inc., Union Pumps, As A Textron Company, American Biltrite, Inc., Individually And Successor To Amtico Floors, Dap, Inc. K/N/A La Mirada Products Co., Inc., Kaiser Gypsum Company, Inc.

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Preview
                                FILED:         NEW     YORK       COUNTY        CLERK        09/20/2019             03:34        PM                 INDEX    NO.   190012/2017
   NYSCEF     DOC.   NO.   599                                                                                RECEIVED      NYSCEF:     09/20/2019




                  SUPREME COURT OF THE STATE OF NEW YORK
                  COUNTY OF NEW YORK
                  --------------------------------------------------------------X
                  STACEY LYNN BROWN, as Administratrix                         :
                  of the Estate of STEVEN L. HALL, Deceased,                   :    Index No.: 190012-17
                                                                               :
                                             Plaintiff,                        :
                                                                               :
                  -against-                                                    :
                                                                               :
                  A.O. SMITH WATER PRODUCTS CO., et al.,                       :
                                                                               :
                                             Defendants.                       :
                  --------------------------------------------------------------X




                    MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT PNEUMO ABEX LLC’S
                              MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION




                                                     HAWKINS PARNELL & YOUNG, LLP
                                                              Attorneys for Defendant
                                       Pneumo Abex LLC, successor in interest to Abex Corporation
                                                         600 Lexington Avenue, 8th Floor
                                                            New York, New York 10022
                                                                   (646) 589-8708




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                                                        PRELIMINARY STATEMENT

                           Plaintiff  Stacey    Lynn    Brown    (hereinafter    “Plaintiff”)   alleges   that  Steven   Leroy    Hall

                  (hereinafter “Mr. Hall” or “Decedent”) was exposed to asbestos from brake shoes manufactured,

                  sold or distributed by Defendant Pneumo Abex, LLC (hereinafter “Abex”), and that such exposure

                  caused him to develop mesothelioma.             While Abex vigorously disputes these allegations, before

                  this Court   can  reach   the  merits  of  Plaintiff’s  claims,  it must   first establish  personal   jurisdiction

                  over  Abex.     Because    Abex   is not  “at  home”    in New    York,   and  Mr.   Hall’s  alleged   exposure    to

                  asbestos from Abex brakes occurred entirely within the State of Kansas, this Court lacks personal

                  jurisdiction over Abex.

                           As relevant to this motion, Mr. Hall testified that he was exposed to asbestos from installing

                  NAPA      Rayloc    brakes1    while    working     as  a  mechanic      at  various    service   stations   in  the

                  Winfield/Oxford, Kansas area from 1962 to 1970, and while performing brake work in the garage

                  of his home in Winfield, Kansas from 1965-1980.              Mr. Hall testified that he purchased the NAPA

                  Rayloc brakes he installed from Jarvis Auto Supply in Winfield, Kansas.                   Thus, the only state in

                  which Mr. Hall alleged exposure to an Abex product over the course of his lifetime was Kansas.

                           At the time the instant action was commenced (and continuing to the present), Abex was a

                  Delaware limited liability company with its principal place of business in Spring, Texas.                  As such,

                  Abex is not “at home” in New York and this Court does not have general jurisdiction over Abex.

                  Moreover, because all of Decedent’s alleged exposure to NAPA Rayloc brakes took place entirely

                  within the State of Kansas, any tortious act allegedly committed by Abex did not occur in New




                  1
                   Pneumo Abex LLC is the legal successor-in-interest to the entity that manufactured brake linings incorporated into
                  NAPA Rayloc brakes.

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                  York or cause injury to Decedent in New York.             Thus, there is no nexus between Plaintiff’s claims

                  against Abex and New York.

                           Based   on  the  foregoing,   this  Court   has  neither  general   nor  specific  personal   jurisdiction

                  over Abex.     Accordingly, Plaintiff’s claims against Abex must be dismissed for lack of personal

                  jurisdiction.

                                                           STATEMENT OF FACTS

                           Plaintiff  commenced       this action   on  January   10,  2017   alleging   that  Mr.  Hall   developed

                  mesothelioma as a result of his exposure to asbestos-containing products manufactured, sold or

                  distributed   by,  inter   alia,  Abex.     On   November      1,  2018,   Plaintiff,  Stacey   Lynn    Brown,    as

                  Administratrix     of  the  Estate  Steven    L.  Hall,  filed  a Fifth  Amended      Complaint     amending     the

                  caption and    adding a wrongful death        claim. (See    Affirmation of     Alfred J. Sargente, Esq.,      dated

                  September 20, 2019 (“Sargente Aff.”) at Ex. A.)             On February 17, 2017, Abex filed its Answer to

                  Verified   Complaint,     Affirmative     Defenses,    and   Cross-Claims,     which    included   an   affirmative

                  defense based on lack of personal jurisdiction.          (See Sargente Aff. at Ex B.)

                           In Chart A annexed to Plaintiff’s Responses to Defendants’ Fourth Amended Standard Set

                  of Interrogatories and Request for Production of Documents, Mr. Hall alleged that he was exposed

                  to  asbestos   from,  inter  alia,  “brakes”    in the  course   of  his job  duties   as a  laborer/mechanic      at

                  Beaver’s Mobile Service Station in Winfield, KS from approximately 1966-1967.                        (See Sargente

                  Aff. at Ex C.)

                           During the course of his discovery deposition, Mr. Hall testified regarding all of the places

                  he  lived  and   worked    during   his  lifetime.  (See  Sargente    Aff.  at  Ex.  D.)  Specifically,   Mr.   Hall

                  testified that he lived at various locations in and around Winfield, KS from the time he was born

                  until moving to Arkansas City, Kansas in approximately 2013.                 (See Sargente Aff., Ex. D at 44:3-

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                  88:10).   He lived in Arkansas City, Kansas until approximately November 2016, when he moved

                  to  San  Antonio,    Texas,   where    he  resided   with  his  daughter    until  the time   of  this death.   (See

                  Sargente Aff., Ex. D at 16:25-18:8; 60:21-61:18).

                           Mr. Hall testified that he was exposed to asbestos from, inter alia, NAPA Rayloc brakes

                  while working at the following service stations in Kansas: Don’s Apco Service on South Sumner

                  Street,  Oxford,   KS   (1962-1965);     Sinclair  service   station  on  9th  Street  in Oxford    (1965);   Hollis

                  Redder    Texaco    service   station  on  Highway      160  in  Oxford,    KS   (1965-1967);     Beaver’s    Mobil

                  service station at 9th and Bliss, Winfield, KS (Sept/Oct 1967-1969); and Mitchell Ross 66 Station

                  on 9th and Andrews in Winfield, KS (Nov/Dec 1968-Nov/Dec 1970).                      (See Sargente Aff., Ex. D.)

                  Mr.   Hall  further   testified  that he   was   exposed    to asbestos    from   NAPA     Rayloc    brakes   while

                  performing shade tree brake work in the garage of his home in Winfield, Kansas from 1965-1980.

                  (See Sargente Aff., Ex. D.)        Mr. Hall testified that he purchased the NAPA Rayloc brakes from

                  Jarvis Auto Supply in Winfield, Kansas.           (See Sargente Aff., Ex. D at 115:14-116:13; 124:10-18;

                  127:14-19; 140:13-141:4; 153:3-14; 170:21-171:8; 178:11-21).                 Mr. Hall did not testify to having

                  been exposed to asbestos from an Abex product at any other time in his life.

                           Thus, assuming for purposes of the instant motion that Mr. Hall’s deposition testimony is

                  true and accurate, the only state in which he claims to have been exposed to asbestos from working

                  with or around an Abex product is Kansas.

                           Pneumo Abex LLC is not organized in the State of New York nor does it have its principal

                  place  of  business   in  New   York.    (See   Affidavit   of Albert   D.  Indelicato   dated  August    27,  2019

                  (“Indelicato    Aff.”).)    Pneumo     Abex    LLC    is a  Delaware     limited   liability  company     that  was

                  organized in the State of Delaware in 2004.          (See Indelicato Aff. at ¶ 15.)      Pneumo Abex LLC has

                  maintained its principal place of business in the State of Texas since 2012.               (See Indelicato Aff. at

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                  ¶ 16.)   Abex does not operate any facilities and has no employees.                (See Indelicato Aff. at ¶¶ 18

                  and 20.)   It has only one officer, Albert D. Indelicato.         (See Indelicato Aff. at ¶ 12.)

                           Because Pneumo Abex LLC is not organized in New York and does not have its principal

                  place of business in New York, Abex is not at home in New York.                  Thus, this Court does not have

                  general personal jurisdiction over Abex.           Furthermore, because there is no nexus between New

                  York and Plaintiff’s claims against Abex in this case - all of which arise out of Plaintiff’s alleged

                  exposure    to  NAPA      Rayloc    brakes   in  Kansas    –  this  Court   does   not   have   specific   personal

                  jurisdiction over Abex.       Accordingly, all of Plaintiff’s claims against Abex in this case must be

                  dismissed.

                                                                    ARGUMENT

                           A party may move for summary judgment dismissing a cause of action asserted against it

                  on the ground that the court does not have jurisdiction over the person of the defendant.                See CPLR

                  3211(a)(8).    “Although a plaintiff is not required         to plead and prove personal jurisdiction in the

                  complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff.”

                  Pichardo v. Zayas, 122 A.D.3d 699, 700-01 (2d Dept. 2014); see also Ring Sales Co. v. Wakefield

                  Engineering, Inc., 90 A.D.2d 496, 497 (2d Dept. 1982).

                           A state court’s    exercise   of personal jurisdiction     over a particular defendant exposes that

                  defendant to the state’s coercive power and, as such, must comply with the Due Process Clause of

                  the  United   States  Constitution’s    Fourteenth     Amendment.       Goodyear     Dunlop     Tires  Operations,

                  S.A. v. Brown, 564 U.S. 915, 918, 131 S. Ct. 2846, 2850, 180 L. Ed. 2d 796 (2011).                  A state court’s

                  exercise   of  jurisdiction   may   be  premised     upon   a  defendant’s    overall   relationship   to  the  state

                  (general jurisdiction) or some nexus between the state, defendant’s conduct and the claims at issue



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                  (specific   jurisdiction).     See   Bristol-Myers     Squibb   Co.   v.  Superior   Court    of  California,   San

                  Francisco County, __U.S. __, 137 S. Ct. 1773, 198 L. Ed, 2d 395 (2017).

                           In  order  for  a court’s   exercise   of general   jurisdiction   to  pass  constitutional   muster,   the

                  defendant’s affiliations with the forum state must be “so constant and pervasive as to render [it]

                  essentially at home” in that state.       Daimler AG v. Bauman, 571 U.S. __, 134 S. Ct. 746, 751, 187

                  L.Ed. 2d 624 (2014) (quoting Goodyear, 654 U.S. at ___, 131 S. Ct. 2846, 2851, 180 L. Ed. 2d

                  796. The exercise of specific jurisdiction satisfies constitutional due process when the suit arises

                  out of or relates to the defendant’s contacts with the forum.          Helicopteros Nacionales De Columbia

                  v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984).

                           Here,   Plaintiffs  cannot   establish  that  Abex    is subject  to  this Court’s   general   or  specific

                  jurisdiction because: (1) Abex’s contacts with New York are insufficient to render it “at home” in

                  New York; and (2) there is no nexus between New York and Plaintiffs’ claims against Abex.

                      I.       ABEX      IS  NOT     SUBJECT       TO    THIS     COURT’S       GENERAL          JURISDICTION
                               BECAUSE IT CANNOT BE CONSIDERED “AT HOME” IN NEW YORK

                           Until relatively recently, when determining whether a corporation was subject to general

                  personal jurisdiction, New York Courts would consider whether the corporation “engaged in such

                  a continuous and      systematic course of      doing business here that       a finding of its presence     in this

                  jurisdiction   is warranted.”     Landoil   Resources    Corp.   v.  Alexander    & Alexander      Servs.,  Inc., 77

                  N.Y.2d 28, 33-34 (1990).         However, in its 2014 decision in Daimler, the United States Supreme

                  Court clarified the constitutional due process requirements for general personal jurisdiction.                     In

                  Daimler, twenty-two Argentinian residents sued              Daimler in a California      Federal District Court,

                  alleging that Daimler had collaborated with Argentinian state security forces to detain, torture, and

                  kill certain   Argentinian    citizens  employed     by   one  of  Daimler’s    Argentinian     subsidiaries.    See


                                                                            5




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                  Daimler,     571 U.S. __, 134 S. Ct. 746, 748, 751-52, 187 L.Ed. 2d 624.                Plaintiffs’ argument for

                  the exercise of general jurisdiction over Daimler in California was premised upon its subsidiary,

                  Mercedes-Benz USA (“MBUSA”), which had its principal place of business in New Jersey, was

                  incorporated in Delaware, and had its headquarters in Germany.                  Id. at 748, 752.     The plaintiffs

                  alleged that MBUSA had numerous facilities in California and that it was the largest supplier of

                  luxury   vehicles   in  the  California    market    - generating    10%    of  all U.S.   new   vehicle   sales   in

                  California, and 2.4% of Daimler’s worldwide sales there.                Id. at 752.   The plaintiffs argued that

                  Daimler’s     contacts   with   California,   through    its  agent,  MBUSA,       amounted      to  a substantial,

                  continuous    and   systematic    course   of business    sufficient  to  subject  it to  general   jurisdiction   in

                  California.

                           The   Court   held  that  the  pertinent   inquiry  in  determining     whether   a  court’s  exercise   of

                  general personal jurisdiction satisfies constitutional due process requirements “…is not whether a

                  foreign   corporation’s     in-forum    contacts    can  be   said  to  be   in  some    sense   ‘continuous     and

                  systematic,’    it is whether    that corporation’s     ‘affiliations  with  the  State  are  so  continuous     and

                  systematic as to render [it] essentially at home in the forum State.’”            Id. at 761.   (emphasis added)

                           As   it had   previously    done   in  Goodyear,      the  Court   identified   a  company’s      place  of

                  incorporation and principal place of business as the paradigm               locations where it may be “fairly

                  regarded at home.”      Id. at 760.   While the Court acknowledged that these two locations are not the

                  only forums in which a corporation may be subject to general jurisdiction, it expressly rejected the

                  notion   that  a corporation    may   be  subject   to general   jurisdiction   in  every   state in  which   it has

                  engaged in a “substantial, continuous, and systematic course of business.”              Id. at 760-61.   To permit

                  general jurisdiction to extend so far, the Court held, would be “unacceptably grasping.”                 Id. at 761.

                  The Court further explained:

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                                    Here, neither Daimler nor MBUSA is incorporated in California, nor
                                    does either have its principal place of business there.           If Daimler’s
                                    California activities sufficed to allow adjudication of this Argentina-
                                    rooted case in California, the same global reach would presumably
                                    be  available   in  every   other   State  in  which    MBUSA’s       sales  are
                                    sizable.  Such exorbitant exercises of all-purpose jurisdiction would
                                    scarcely   permit   out-of-state   defendants    ‘to structure   their primary
                                    conduct with some minimum assurance as to where that conduct will
                                    and will not render them liable to suit.’”

                  Id. at 761-62 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L.

                  Ed. 2d 528 (1985)).

                           New York courts, including the First Department of the Appellate Division, have followed

                  Daimler and held that for a corporation to be subject to general jurisdiction in New York pursuant

                  to CPLR 301, it must essentially be at home in New York.                 See Magdalena v. Lins, 123 A.D.3d

                  600, 601 (1st Dept. 2014); Matter of B&M Kingstone, LLC v. Mega Intl. Commercial Bank Co.,

                  Ltd., 131 A.D.3d 259, 264 (1st Dept. 2015); Sustainable Pte Ltd. V. Peak Venture Partners LLC,

                  2017 N.Y. Misc. LEXIS at *12 (Sup. Ct., New York County, Jan. 30, 2017).

                           Most recently, in BNSF Railway Co. v. Tyrell, 137 S. Ct. 1549, 198 L. Ed. 2d 36 (2017),

                  the United States Supreme Court confirmed the central holding in Daimler that the paradigm forum

                  for the exercise of general personal jurisdiction over a corporation is its state of incorporation or

                  its principal   place  of  business,   and   only  in  exceptional    cases  may   a  corporation    be  subject   to

                  general jurisdiction in a forum where it is neither incorporated nor maintains its principal place of

                  business.    Id.  at 1558.    The   Court   held  that  the  defendant,    BNSF,    was   not  subject   to general

                  jurisdiction   in  Montana     despite   having    2,000   miles   of  railroad   track   and   more    than  2,000

                  employees in Montana.        Id.  Because BNSF was not incorporated in Montana and did not maintain

                  its principal place    of business there,    and because     its contacts with the state were insufficient to



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                  render   itessentially at   home    there,  the exercise   of  general   jurisdiction  was   not  justified.   Id. at

                  1558-59.

                           Pursuant to Daimler and BNSF, and their progeny, Abex cannot be considered at home in

                  New    York   and,  thus,  is not  subject  to  the general   jurisdiction   of this  Court   As   set forth  in the

                  Affidavit of Abex’s president, Albert D. Indelicato, Abex was organized in the State of Delaware

                  in 2004 and has maintained its principal place of business in the State of Texas since 2012.                    (See

                  Indelicato Aff. at ¶¶ 15 and 16.)

                           Additionally,    Abex     is not  registered    to  do  business    in  New    York,    has  no   business

                  operations in New York, and does not generate any sales or derive any revenue in the State of New

                  York.    (See Indelicato Aff. at ¶¶ 18-22)        Further, Abex maintains no offices or facilities in New

                  York, and has no current employees in New York.               (See Indelicato Aff. at ¶¶ 18 and 20.)         In fact,

                  Mr.   Indelicato   is the  only   officer  of  Abex   and   resides   outside  the  State   of New    York.     (See

                  generally Indelicato Aff. at ¶ 12.)

                           Because Abex cannot be considered “at home” in New York, there is no basis for this Court

                  to exercise general jurisdiction over Abex.          See Magdalena 123 A.D.3d at 601 (finding no basis

                  for  general   jurisdiction   where    the  defendant    was   not  incorporated    in  New    York   and   did  not

                  maintain    its principal  place   of  business   in New    York,   and   where   the  defendant’s    founder    and

                  president   was   not  domiciled    in  New   York);    see  also  Matter   of New    York   City  Asbestos    Litig.

                  (Trumbull), 2017 N.Y. Misc. LEXIS 839 (Sup. Ct., New York County, Mar. 6, 2017).

                       II.      ABEX      IS  NOT     SUBJECT        TO    THIS    COURT’S        SPECIFIC        JURISDICTION
                                BECAUSE         THERE        IS   NO     NEXUS       BETWEEN          PLAINTIFF’S          CLAIMS
                                AGAINST ABEX AND NEW YORK

                           Where    general    jurisdiction   focuses   on  a  party’s   overall  relationship    to a  forum    state,

                  specific  jurisdiction   rests  on  the  nexus,   if any,  between    a  defendant’s    in-state  activity  and  the

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                  specific   claims   asserted   against  it.  McGowan       v. Smith,   52  N.Y.2d    268   (1981).    As   the  U.S.

                  Supreme Court recently held in Bristol-Myers Squibb, “[i]n order for a court to exercise specific

                  jurisdiction   over  a  claim,   there  must   be  an  ‘affiliation  between    the  forum    and  the  underlying

                  controversy,    principally,   [an]  activity   or an  occurrence     that  takes  place   in the  forum    State.’”

                  Bristol-Myers Squibb, __U.S. __, 137 S.Ct. 1773, 1780 [2017]                  (quoting Goodyear, 564        U.S. at

                  919).

                           In that regard, New York’s long-arm statute provides three separate bases for exercising

                  specific jurisdiction over a non-domiciliary in a particular case.            See CPLR 302(a)(1)-(3).         Under

                  CPLR 302, New York courts are narrowly authorized to exercise specific jurisdiction over an out-

                  of-state  defendant    where:   (1)  the  tort arises  in  the state  and   from   a defendant’s    transaction   of

                  business   in  the  state;  (2) a  tortious  act  is committed     within   the  state;  or (3)  a  tortious  act  is

                  committed outside of the state causing injury in the state.           See CPLR 302 (a)(1)-(3).

                           Here, Plaintiff cannot establish any basis for the exercise of specific jurisdiction over Abex

                  because: (1) Plaintiff’s claims against Abex did not arise in New York and are not the result of

                  Abex    transacting business in New        York;   (2) Abex    did not commit any tortious act within New

                  York; and (3) Abex did not commit any tortious act outside of New York causing injury to the

                  Decedent in New York.         All of Mr. Hall’s alleged exposure to asbestos from NAPA Rayloc brake

                  linings occurred outside of New York (i.e., in Kansas) and, because Mr. Hall lived in Kansas for

                  almost   his  entire  life (except   for  a  short  time   in Texas),   Plaintiff  cannot    show   that  any  such

                  exposure    caused   injury  to  Mr.  Hall   in New    York.    As   such,  Plaintiff  cannot   establish   specific

                  jurisdiction over Abex under New York’s long-arm statute.

                           A.   Abex is Not Subject to Personal Jurisdiction Under CPLR 302(a)(1)



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                           Under CPLR 302(a)(1), a court may exercise personal jurisdiction over a foreign defendant

                  for torts arising from a defendant’s transaction of business in this State.           Kreutter v. McFadden Oil

                  Corp.,   71  N.Y.2d    460,  467  (1988).    “In  order  to  determine    whether   personal    jurisdiction  exists

                  under CPLR      302(a)(l), a court must determine (1) whether the defendant transacted business in

                  New    York   and,   if so,  (2)  whether    the  cause   of action   asserted   arose   from   that  transaction.”

                  Pichardo    v.  Zayas,   122  A.D.3d    699,   701  (2d  Dept.   2014).    Establishing    an  “articulable   nexus

                  between     the  business    transacted   and   the  cause    of  action   sued   upon”    is “[e]ssential   to  the

                  maintenance of a suit against a nondomiciliary under CPLR 302 (subd [a], par 1)[.] ”                    McGowan,

                  52 N.Y.2d at 272.      See also Johnson v. Ward, 4 N.Y.3d 516, 519 (2005); Licci v. Lebanese Can.

                  Bank, SAL, 20 N.Y.3d 327, 339 (2012); Kreutter, 71 N.Y.2d at 467.

                           In  McGowan,      the  infant  plaintiff,  a  New    York   resident,  was   injured   in  Canada    by  an

                  allegedly defective fondue pot purchased in New York but shipped from Japan by a Japanese third-

                  party  defendant.     McGowan,       52  N.Y.2d    at 270.  The   record   indicated   that  the  non-domiciliary

                  Japanese    third-party   defendant’s     representatives    made    several   trips to  New    York    to perform

                  market research     and assess what types of products might be saleable              in New York.       Id.  at 272.

                  While   the  Court   recognized    that  their  visits were   purposeful,    and  that  the Japanese    third-party

                  defendant “transacted business” in New York, the business was not sufficiently related to the cause

                  of action to support jurisdiction.      Id. at 273.

                           Similarly, in the case at     bar,  Plaintiff’s claims against Abex       are clearly unrelated to any

                  business Abex may have transacted in New York.                Mr. Hall unequivocally testified that the only

                  state in which he encountered an Abex brake product was Kansas.                  Moreover, he testified that the

                  NAPA Rayloc brakes he worked with were all purchased from Jarvis Auto Supply in Winfield,

                  Kansas.    Mr. Hall did not claim to have ever worked with, let alone been exposed to asbestos from,

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                  an Abex    product in New York.         (See generally Ex. D.)        While Abex has transacted business in

                  New    York   at various   times   in the  past,  there  is no  evidence    establishing   an  “articulable   nexus

                  between the business transacted and the cause of action sued upon” or a nexus between any such

                  transactions and Mr. Hall’s alleged exposure to NAPA Rayloc brakes in Kansas.

                           Because    Mr.   Hall’s  alleged   exposure    to  asbestos   from   NAPA      Rayloc   brakes   occurred

                  entirely  outside   of  New    York,   Plaintiff’s   claims   against   Abex    clearly  do  not   arise from    any

                  business Abex may have transacted in New York.                 As such, CPLR 302(a)(1) does not provide a

                  basis for specific jurisdiction over Abex.

                           B.   Abex is Not Subject to Personal Jurisdiction Under CPLR 302(a)(2)

                           CPLR 302(a)(2) provides that “a court may exercise personal jurisdiction over any non-

                  domiciliary ... who in person or through an agent ... commits a tortious act within the state ... .”

                  CPLR 302(a)(2).       This provision has been narrowly construed to apply only to torts committed in

                  New York.      See Longines-Wittnauer         Watch Co. v. Barnes       & Reinecke, Inc., 15 NY2d 443, 465

                  (1965) (holding that CPLR 302(a)(2) “covers only a tortious act committed [by a nondomiciliary]

                  in  this State.”);  Overseas     Media,    Inc. v  Skvortsov,    407   F.Supp.2d    563,   572   (S.D.N.Y.    2006)

                  (observing    that  this  provision   requires   allegations    that “defendant     or  his  agents   committed     a

                  tortious act while physically present in New York”) (alterations and internal quotations omitted);

                  Trumbull, 2017 N.Y. Misc. LEXIS at *14 (“this provision has long been construed to apply where

                  the defendant’s wrongful conduct is performed in New York.”) (internal citations omitted).

                           As discussed supra, Mr. Hall testified at his deposition that his only exposure to NAPA

                  Rayloc brakes occurred in the State of          Kansas.    Therefore, there is no allegation in this case that

                  Abex committed a tortious act in New York.               Accordingly, CPLR 302(a)(2) does not provide a

                  basis for specific jurisdiction over Abex.

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                           C.   Abex is Not Subject to Personal Jurisdiction Under CPLR 302(a)(3)

                           CPLR     302(a)(3)   allows   a  court  to  exercise   personal   jurisdiction   over  a  defendant    who

                  “commits a tortious act without the state causing injury to person or property within the state,”

                  provided    one  of  two   additional   requirements     is met.    See  CPLR     302(a)(3).    In  analyzing    this

                  provision of    New York’s long-arm statute, courts have consistently found the location of the injury

                  to be the state where the injury initially occurred.          “The situs of the injury is the location of the

                  original   event   which    caused    the  injury,   not  the   location   where    the  resultant   damages     are

                  subsequently felt by the plaintiff.”      Varchonas v. Tonyes, 61 A.D.3d 850 (2d Dept. 2009); Black v

                  Oberle Rentals, Inc., 55 Misc.2d 398 (Sup. Ct. Onondaga County 1967) (stating that the court was

                  without   jurisdiction   in  an  action   brought   against   an  Indiana   manufacturer     where    the  accident

                  involving New York domiciliaries occurred in Massachusetts). See also Stern v. Four Points by

                  Sheraton, 133 A.D.3d 514,514-15 (1st Dept. 2015).

                           Here, the situs of the injury is Kansas.        Thus, this Court cannot exercise personal specific

                  jurisdiction under CPLR        §302(a)(3) because the injury did not occur in the State of New York.

                  Mr. Hall was allegedly exposed to NAPA Rayloc brakes in Kansas, meaning that Kansas is the

                  situs  of the  injury.   Since  the  exposure    and  the  injury –   that is, the  original  event   – took   place

                  outside of the State of New York, and Mr. Hall is not and had never been a resident of the State of

                  New York, the New York courts cannot exercise jurisdiction over Abex in this action.                  (See Bristol-

                  Myers Squibb Co. V. Superior Court of California, San Francisco, 136 S.Ct. 1773 (2017); LeBron

                  v. Encarnacion, 523 F.Supp3d 513 (EDNY 2017)).

                           Plaintiff’s only claims against Abex are based on Mr. Hall’s undisputed testimony that he

                  worked with, and was allegedly exposed to asbestos from, NAPA Rayloc brakes while working at

                  various service stations and performing personal auto repair work in and around Winfield, Kansas.

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                  Thus, applying the “situs-of-injury” test, the location of Mr. Hall’s injury is Kansas.               As such, any

                  allegedly tortious conduct Abex may have engaged in in Kansas (or anywhere else outside of New

                  York) cannot be said to have caused injury to Mr. Hall in New York.                 Thus, CPLR 302(a)(3) does

                  not confer specific jurisdiction over Abex.

                           Even assuming, arguendo, that Mr. Hall suffered injury in New York as a result of Abex’s

                  allegedly tortious    conduct    in Kansas,    Plaintiff  cannot   establish  specific   jurisdiction  pursuant    to

                  CPLR 302(a)(3), as the sub-requirements of this section have not been met.                     To do so, Plaintiff

                  would have to prove that at the time Mr. Hall filed his lawsuit, Abex:

                                    (i)      Regularly [did] or solicit[ed] business, or engage[d] in any
                                             other  persistent   course   of conduct,    or derive[d]   substantial
                                             revenue from goods used or consumed or services rendered,
                                             in the state, or

                                    (ii)     Expect[ed] or should reasonably [have expected] the act to
                                             have   consequences      in  the  state  and   derive[d]   substantial
                                             revenue from interstate or international commerce[.]

                  CPLR 302(a)(3)(i-ii).       See also Edelman v. Taittinger, S.A., 8 A.D.3d 121 (1st Dept. 2004) (the

                  appropriate inquiry under CPLR 301 is “whether defendants were doing business in New York at

                  the time the action was brought.”) (internal citations omitted); Trumbull, 2017 N.Y. Misc. LEXIS

                  at *16 (extending Edelman’s holding to CPLR 302(a)(3), reasoning that “some existing rather than

                  past  presence   is  required,  since   itwould    be  unreasonable     to expect   a company     without   current

                  transactions within a state to respond to a lawsuit there.”).

                           In January 2017, when this lawsuit was filed, Abex: (a) was not registered to do business

                  in New York; (b) derived no revenue from goods used or consumed, or services rendered, in New

                  York; and (c) had no reason to believe that acts taken in New Jersey decades earlier would have

                  consequences in New York.           (See Indelicato Aff. at ¶¶ 18-22.)


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                           Ultimately, this Court need not perform an inquiry under subsections (i) and (ii) of CPLR

                  302(a)(3), because Plaintiff cannot establish that any purported tortious conduct by Abex outside

                  the State of New York caused injury to the Decedent within the State of New York.                    Accordingly,

                  CPLR     302(a)(3)    cannot   provide    a basis   for  specific  jurisdiction   in  this  case,  and   Plaintiff’s

                  Complaint must be dismissed.

                      III.     THE     UNITED       STATES       SUPREME         COURT’S        DECISIONS         IN   BNSF     AND
                               BRISTOL       MYERS       SQUIBB      REAFFIRM          DUE     PROCESS        LIMITS      ON    THE
                               EXERCISE          OF     PERSONAL            JURISDICTION            OVER        OUT-OF-STATE
                               CORPORATIONS LIKE ABEX

                           The United States Supreme Court’s recent decisions in BNSF Railway Co. v. Tyrrell, No.

                  16-405, 581 U.S. ___, 137 S. Ct. 1549 (2017), and Bristol-Myers Squibb Co., __U.S. __, 137 S.

                  Ct. 1773, 198     L. Ed, 2d   395 (2017).      (2017) further circumscribe       the court’s power      to exercise

                  general and specific jurisdiction over out-of-state corporations such as Abex.                  In BNSF Railway

                  Co., the United States Supreme Court confirmed the central holding in Daimler that the paradigm

                  forum    for  the   exercise   of   general   personal    jurisdiction   over   a  corporation     is  its state   of

                  incorporation or its principal place of business.         See BNSJ, 581 U.S. ___, 137 S. Ct. at 1558-1559.

                  In Bristol Myers Squibb Co., the Court emphasized the need for an “affiliation between the forum

                  and the underlying controversy, principally, [an] activity or an occurrence that takes place in the

                  forum State.”     Bristol-Myers Squibb Co., __U.S. __, 137 S. Ct. at 1781.

                           In BNSF Railway Co., two plaintiffs sued defendant BNSF Railway Co. in Montana state

                  court alleging that they developed a fatal cancer while working for BNSF.                   See BNSJ, 137 S. Ct.

                  at  1554.   Neither   plaintiff  resided   in  Montana     or  was   injured   there.   See   id. BNSF     was   not

                  incorporated and did not maintain its principal place of business in Montana; though it did engage

                  in substantial business in Montana.         See id.


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                           The   Montana    Supreme     Court   held  that  Montana     courts  could   exercise   general   personal

                  jurisdiction over BNSF under Section 56 of the Federal Employers’ Liability Act (FELA), because

                  BNSF “did business” in Montana and that Montana law provided for jurisdiction over companies

                  that are “found within” the state.       See id.   Thus, the Montana Supreme Court held that FELA and

                  Montana law allowed the Montana court to exercise general personal jurisdiction over BNSF.                       See

                  id. The Montana Supreme Court found Daimler inapplicable because Daimler did not involve a

                  FELA claim or a railroad defendant. See id.

                           In  reversing    the   Montana     Supreme      Court,   the   U.S.   Supreme     Court    held   that  the

                  jurisdiction-conferring language in FELA upon which plaintiffs relied did not relate to personal

                  jurisdiction.   See id., generally. Moreover, in finding that the Montana Supreme Court’s exercise

                  of  general    personal    jurisdiction    under    Montana     law    did  not   conform     to  the   Fourteenth

                  Amendment’s Due Process Clause, the U.S. Supreme Court found emphasized that under Daimler,

                  a  state court   may   exercise   general   jurisdiction   over   out-of-state   corporations    only   when   their

                  “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home

                  in the forum State.”     See id. at 1558-1559. Thus, the Court held that absent an “exceptional case,”

                  a court may exercise general personal jurisdiction against a corporate defendant only where the

                  corporation is incorporated or has its principal place of business.            See id. at 1558.

                             In Bristol-Meyers     Squibb    Co.,  a group   of  plaintiffs  which   included   592   non-California

                  residents   sued  Bristol-Meyers      Squibb   (“BMS”)     in  California   Superior    Court,  claiming    injuries

                  stemming from their use of a BMS drug called Plavix.               Bristol-Myers Squibb Co., __U.S. __, 137

                  S. Ct. at 1778.   The nonresident plaintiffs did not allege that they had obtained Plavix in California,

                  or through any California physician or other source.              See id.   The Superior Court denied BMS’

                  motion to quash service of the non-resident Plaintiff’s complaints for lack of personal jurisdiction,

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