On January 05, 2023 a
Exhibit,Appendix
was filed
involving a dispute between
Dan Albasry
As Trustee Of The Estate Of Newal Al Saad,
Firas Mohammad,
and
Barretts Minerals Inc.,
Beacon Cmp Corp.,
Brenntag Specialties Llc,
Charles B. Chrystal Company Inc.;,
Colgate Palmolive Co.;,
Conopco Inc.,
Glaxosmithkline Consumer Healthcare Holdings,
Glaxosmithkline Llc,
Gsk Consumer Health Inc.,
Lornamead Inc.,
Pfizer Inc.,
Port Jervis Laboratories Inc.,
The Procter & Gamble Co.,
Whittaker, Clark & Daniels Inc.,
Yardley Of London Inc.,
Yardley Of London Ltd.,,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 07/10/2023
EXHIBIT 57
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX
INDEX
NO.
NO.
EF003724-2021
190002/2023
NYSCEF DOC. NO. 142
19 RECEIVED NYSCEF: 07/10/2023
06/30/2021
SUPREME COURT-STATE OF NEW YORK
IAS PART-ORANGE COUNTY
Present: HON. CATHERINE M. BARTLETT, A.J.S.C.
SUPREME COURT OF THE ST A TE OF NEW YORK
COUNTY OF ORANGE
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In re Matter of
KOLMAR LABO RA TORIES, INC.,
To commence the statutory time
Plaintiff, period for appeals as of right
(CPLR 5513 [a]), you are
-against- advised to serve a copy of this
order, with notice of entry,
G. JYLES EAVES, Individually and as Administrator upon all parties.
of the Estate of FRANCES KAY EAVES, Deceased,
TABOR DRUGS, et al., Index No. EF003724-202l
Defendants. Motion Date: June 25, 2021
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The following papers numbered 1 to 2 were read on Kolmar Laboratories, Inc. 's motion
to change venue to Orange County:
Order to Show Cause - Affirmation/ Exhibits - Memorandum' ........................ 1-3
Upon the foregoing papers, it is ORDERED that the motion is disposed of as follows:
G. Jyles Eaves commenced an action entitled Eaves v. Ko/mar Laboralories, Inc. and
Tabor Drugs, et al., New York County Index No. 190112-2021, in Supreme Court, New York
County. Kolmar Laboratories moves for a transfer of venue to Orange County on the grounds
that none of the original parties to that action resided in New York County, and hence the laying
of venue in New York County was improper.
'The purported affidavit of Kolma.r' s principal Robert Edmonds is unsworn and hence not
in admissible form. Accordingly, the Court has not considered it on this application.
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CPLR §503(a) provides in pertinent part that "the place of trial shall be in the county in
which one of the parties resided when it was commenced." CPLR §510 provides that "[t]he
court, upon motion, may change the place of trial of an action where (I) the county designated
for that purpose is not a proper county ... "
In 0.K. v. YM and YW.H.A. of Williamsburg, Inc., 175 AD3d 540 (2d Dept. 2019), the
Second Department wrote:
At the time of the commencement of this action, CPLR 503 provided, in relevant part,
theat "[e]xcept as otherwise prescribed by law, the place of trial shall be in the county
in which one of the parties resided when it was commenced" (CPLR 503[a] ... [cit.om.])
"[T]he sole residence of a domestic corporation for venue purposes is the county
designated in its certificate of incorporation, despite its maintenance of an office or
facility in another county" [cit.om.].
"To effect a change of venue pursuant to CPLR 510( I), a defendant must show that the
plaintiff's choice of venue is improper and that its choice of venue is proper" [cit.om.].
To succeed on their motion here, the defendants were obligated to demonstrate that, on
the date this action was commenced, neither of the parties resided in Kings County
[cit.om.]. Only if the defendants made such a showing were the plaintiffs required to
establish, in opposition, via documentary evidence, that the venue they selected was
proper [cit.om.].
Here, the defendants failed to submit their certificate of incorporation. Contrary to the
defendants' contention, the computer printout they submitted in support of their motion
from the website of the New York State Department of State, Division of Corporations
was inadmissible, since it was not certified or authenticated, and it was not supported
by a factual foundation sufficient to demonstrate its admissibility as a business record
[cit.om.]. Therefore, the defendants failed to meet their initial burden of demonstrating
that their principal office was located in Nassau County and that the plaintiff's choice of
venue in Kings County was improper [cit.om.].
Id., 175 AD3d at 540-541.
Here, Kolmar did not submit its own certificate of incorporation (or that of Tabor Drugs).
The proffered printouts from the NYS Department of State, Division of Corporations website are
neither certified nor authenticated, and Kol mar has not laid a foundation for their admission as
2
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business records. Therefore, these printouts are inadmissible (see, 0. K. v. Y.M and Y. WHA.
of Williamsburg, Inc., supra), as is the unsworn affidavit of Kolmar's principal. Consequently,
Kolmar failed to meet its initial burden of demonstrating that its principal office is located in
Orange County, and that Eaves' choice of venue in New York County was improper. See, id.
CPLR §510(3) further provides that the Court may change the place of trial of an action
where "the convenience of material witnesses and the ends of justice will be promoted by the
change." However, Kolmar did not even attempt to carry its burden of establishing a factual
basis for the conclusion that the convenience of material witnesses warrants a change of venue.
See, Gorodetsky v. Bridgewater Wholesalers, Inc., 161 AD3d 722 (2d Dept. 20 I 8). That New
York County dockets may be more congested than Orange County dockets does not by itself
warrant a transfer of venue pursuant to CPLR §5 I 0(3).
It is therefore
ORDERED, that the motion of Kol mar Laboratories, Inc. for a change of venue is denied.
The foregoing constitutes the decision and order of the Court.
Dated: June dli\,
2021 ENTER
Goshen, New York
HON. CATHERINE M. BARTLETT, A.J.S.C.
HON.C.M.BARTLETT
JUDGE
NYSTATE
COURT
OFCLAIMS
ACTING
SUPREME
COURT
JUSTICE
3
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Preview
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 07/10/2023 EXHIBIT 57 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX INDEX NO. NO. EF003724-2021 190002/2023 NYSCEF DOC. NO. 142 19 RECEIVED NYSCEF: 07/10/2023 06/30/2021 SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON. CATHERINE M. BARTLETT, A.J.S.C. SUPREME COURT OF THE ST A TE OF NEW YORK COUNTY OF ORANGE --------------------------------------------------------------------x In re Matter of KOLMAR LABO RA TORIES, INC., To commence the statutory time Plaintiff, period for appeals as of right (CPLR 5513 [a]), you are -against- advised to serve a copy of this order, with notice of entry, G. JYLES EAVES, Individually and as Administrator upon all parties. of the Estate of FRANCES KAY EAVES, Deceased, TABOR DRUGS, et al., Index No. EF003724-202l Defendants. Motion Date: June 25, 2021 ---------------------------------------------------------------------x The following papers numbered 1 to 2 were read on Kolmar Laboratories, Inc. 's motion to change venue to Orange County: Order to Show Cause - Affirmation/ Exhibits - Memorandum' ........................ 1-3 Upon the foregoing papers, it is ORDERED that the motion is disposed of as follows: G. Jyles Eaves commenced an action entitled Eaves v. Ko/mar Laboralories, Inc. and Tabor Drugs, et al., New York County Index No. 190112-2021, in Supreme Court, New York County. Kolmar Laboratories moves for a transfer of venue to Orange County on the grounds that none of the original parties to that action resided in New York County, and hence the laying of venue in New York County was improper. 'The purported affidavit of Kolma.r' s principal Robert Edmonds is unsworn and hence not in admissible form. Accordingly, the Court has not considered it on this application. 1 of 3 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX INDEX NO. NO. EF003724-2021 190002/2023 NYSCEF DOC. NO. 142 19 RECEIVED NYSCEF: 07/10/2023 06/30/2021 CPLR §503(a) provides in pertinent part that "the place of trial shall be in the county in which one of the parties resided when it was commenced." CPLR §510 provides that "[t]he court, upon motion, may change the place of trial of an action where (I) the county designated for that purpose is not a proper county ... " In 0.K. v. YM and YW.H.A. of Williamsburg, Inc., 175 AD3d 540 (2d Dept. 2019), the Second Department wrote: At the time of the commencement of this action, CPLR 503 provided, in relevant part, theat "[e]xcept as otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced" (CPLR 503[a] ... [cit.om.]) "[T]he sole residence of a domestic corporation for venue purposes is the county designated in its certificate of incorporation, despite its maintenance of an office or facility in another county" [cit.om.]. "To effect a change of venue pursuant to CPLR 510( I), a defendant must show that the plaintiff's choice of venue is improper and that its choice of venue is proper" [cit.om.]. To succeed on their motion here, the defendants were obligated to demonstrate that, on the date this action was commenced, neither of the parties resided in Kings County [cit.om.]. Only if the defendants made such a showing were the plaintiffs required to establish, in opposition, via documentary evidence, that the venue they selected was proper [cit.om.]. Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants' contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record [cit.om.]. Therefore, the defendants failed to meet their initial burden of demonstrating that their principal office was located in Nassau County and that the plaintiff's choice of venue in Kings County was improper [cit.om.]. Id., 175 AD3d at 540-541. Here, Kolmar did not submit its own certificate of incorporation (or that of Tabor Drugs). The proffered printouts from the NYS Department of State, Division of Corporations website are neither certified nor authenticated, and Kol mar has not laid a foundation for their admission as 2 2 of 3 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX INDEX NO. NO. EF003724-2021 190002/2023 NYSCEF DOC. NO. 142 19 RECEIVED NYSCEF: 07/10/2023 06/30/2021 business records. Therefore, these printouts are inadmissible (see, 0. K. v. Y.M and Y. WHA. of Williamsburg, Inc., supra), as is the unsworn affidavit of Kolmar's principal. Consequently, Kolmar failed to meet its initial burden of demonstrating that its principal office is located in Orange County, and that Eaves' choice of venue in New York County was improper. See, id. CPLR §510(3) further provides that the Court may change the place of trial of an action where "the convenience of material witnesses and the ends of justice will be promoted by the change." However, Kolmar did not even attempt to carry its burden of establishing a factual basis for the conclusion that the convenience of material witnesses warrants a change of venue. See, Gorodetsky v. Bridgewater Wholesalers, Inc., 161 AD3d 722 (2d Dept. 20 I 8). That New York County dockets may be more congested than Orange County dockets does not by itself warrant a transfer of venue pursuant to CPLR §5 I 0(3). It is therefore ORDERED, that the motion of Kol mar Laboratories, Inc. for a change of venue is denied. The foregoing constitutes the decision and order of the Court. Dated: June dli\, 2021 ENTER Goshen, New York HON. CATHERINE M. BARTLETT, A.J.S.C. HON.C.M.BARTLETT JUDGE NYSTATE COURT OFCLAIMS ACTING SUPREME COURT JUSTICE 3 3 of 3