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FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. : 190280/2015
SHIRLEY JO GODFREY, Individually and as
Executrix of the Estate of ROBERT C. GODFREY, Motion Seq. # 04
deceased,
Plaintiffs,
AFFIRMATION IN
OPPOSITION TO DEFENDANT
v.
BIRD INCORPORATED’S
MOTION TO DISMISS FOR
A.O. SMITH WATER PRODUCTS, et al.
LACK OF PERSONAL
JURISDICTION
Defendants.
Seth A. Dymond, an attorney duly admitted to practice before the Courts of the State of
New York, affirms the following statements to be true under the penalties of perjury:
1. I am a partner of the law firm Belluck & Fox, LLP, attorneys for the above-
captioned plaintiff, and I am fully familiar with the facts and circumstances of this case.
2. My affirmation is submitted in opposition to the motion made by BIRD
INCORPORATED (hereinafter Defendant or Bird), pursuant to CPLR § 3211(a)(8), to dismiss
the complaint insofar as asserted against it on the basis of lack of personal jurisdiction.
3. The plaintiff-decedent Robert Godfrey developed mesothelioma as a result of
exposure to asbestos from, inter alia, his work installing Bird asbestos cement siding as a
grounds crew laborer at Bradford College between 1973 and 1978. He was deposed over the
course of three days on October 7, 2015, October 8, 2015, and November 19, 2015, and his
videotaped de bene esse deposition was given on November 19, 2015 (see Exhibit 4 annexed to
the Affirmation of Lisa Pascarella, Esq. on behalf of Defendant).1 There is no dispute that Mr.
1
To save paper and reduce the paper burden on this Court, Plaintiffs cite to and incorporate herein Mr.
Godfrey’s deposition transcripts as annexed to Defendant’s moving papers. The videotaped deposition transcript is
also included in Exhibit 4 to Defendant’s moving papers.
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Godfrey’s exposure to asbestos from Bird asbestos siding occurred in Massachusetts, although
he was born and raised in New York, resided in New York both before and after his
Massachusetts exposure, he developed and was diagnosed with mesothelioma here, and he was
treated here.
4. It is submitted that Plaintiff has established a prima facie case of specific
jurisdiction over Bird under CPLR 302(a)(1) because Mr. Godfrey’s exposure to asbestos from
Bird siding arose from Bird’s transaction with The Ruberoid Company in New York City to
purchase for resale asbestos siding manufactured by Ruberoid that was rebranded as a Bird
product. Furthermore, Bird has consented to jurisdiction in New York by voluntarily registering
to do business here and by electing an agent for the service of process in New York.2 Lastly, at a
minimum, considering Bird’s relevant connections to New York, Defendant should be required
to produce jurisdictional discovery before this motion is decided.
FACTUAL BACKGROUND
A. Mr. Godfrey’s Exposure To Asbestos From Bird Asbestos Siding
5. Mr. Godfrey was born in New York in 1955, and resided in this State until 1973
when he attended Bradford College in Massachusetts (Exh 4 to Pascarella Aff at 25-26). In
1978, he returned to New York after graduating from Bradford College, and remained in New
York for the rest of his life (Exh 4 to Pascarella Aff at 27-31).
6. While at Bradford College, Mr. Godfrey worked as a laborer on the grounds crew
five days a week, and sometimes on the weekend as well, which amounted to 20 hours a week
during the school year and 40 hours a week in the months before and after the school year (Exh 4
2
Plaintiff asserts this basis for the purposes of preservation, as she is aware this Court has previously
rejected this argument.
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to Pascarella Aff at 33-38). His duties included cleaning up after the maintenance and repairs
performed in all the buildings, inside and out (Exh 4 to Pascarella Aff at 34, 43).
7. He stated that his duties included removing and replacing siding on various
buildings at the College (Exh 4 to Pascarella Aff at 59, 63, 240, 242). He identified Bird as a
manufacturer of the asbestos cement shingle siding he was exposed to (Exh 4 to Pascarella Aff at
239-40; Video dep. at 27, 31). The siding was labeled as “asbestos” and during installation he
scored and snapped it, then drilled it (Exh 4 to Pascarella Aff at 240, 243; Video Dep. 31-32).
This work exposed him to the asbestos dust generated from the siding (Exh 4 to Pascarella Aff at
226; Video Dep. at 32).
B. Bird’s Contract With The Ruberoid Company In New York City To Purchase And
Resell – As A Rebranded Product – Asbestos Siding During Mr. Godfrey’s
Exposure Period
8. In its moving papers, Bird’s proffers the Affidavit of Michael Starczewski, Esq.,
who admits that for its northeastern U.S. customers, “Bird offered for sale cement siding shingles
that were manufactured by The Ruberoid Company in New Jersey” (Exh 5 to Pascarella Aff at ¶
13).
9. Although this rebranded product may have been manufactured in New Jersey, the
contract to purchase this product from Ruberoid for resale as a Bird product was negotiated and
entered into in New York City. On April 5, 1957, Bird entered into a contract with “Mr. E.J.
O’Leary, Executive Vice President, The Ruberoid Company, 500 Fifth Avenue, New York 36,
N.Y.” for the purchase and resale of asbestos cement products, including siding (see Exhibit A).
This contract was clearly negotiated in New York, as Bird wrote to Ruberoid, stating that:
Pursuant to our various discussions and correspondence with regard to the
Ruberoid Company selling Bird Asbestos Cement Products, I believe that the
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following represents our view of the various understands that we should have on
this transaction:
Exh A at 1) (emphasis added).
10. The terms of the agreement included the sale of “Asbestos Siding,” and that upon
execution, “the arrangement will continue in force indefinitely unless terminated by a six
months’ notice in writing given by either party to the other prior to the desired termination date”
(Exh A at 3) (emphasis added).
11. This contract is bates-stamped, and it is authenticated by statements from Bird’s
lawyer during a prior deposition of a Bird corporate representative, indicating that Bird made a
full production of bates-stamped documents after reviewing and locating all the documents in its
archives that related to asbestos (Exhibit B at 49-53).
12. Notably, E.J. O’Leary would later become the President of Ruberoid, with its
offices still located in New York City (see Exhibit C – Oct. 26, 1962 letter).
13. Bird also has admitted that it currently does business in New York (see Exhibit D
– Interrogatory Responses Excerpt, at Answer to Q5).
ARGUMENT
14. To defeat a motion to dismiss for lack of personal jurisdiction, a Plaintiff need
only show that jurisdiction “may exist.” Hessel v. Goldman, Sachs, & Co., 281 A.D.2d 247, 248
(1st Dept. 2001) (“While defendants argue that the complaint should be dismissed in its entirety
against GSI because there is no basis for long-arm jurisdiction over it, inasmuch as plaintiff, in
responding to the motion to dismiss, has shown that jurisdiction ‘may exist,’ the motion was
properly denied.”) (quoting Fed. Ins. Co. v. Specialty Paper Box Co., 222 A.D.2d 254, 255 (1st
Dept., 1995)). It is also well-settled that in determining if jurisdiction is conferred, all facts from
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a plaintiff’s pleadings and affidavits are construed in the light most favorable to him. Citigroup
Inc. v. City Holding Co, 97 F. Supp.2d 549, 563-64 (S.D.N.Y. 2000).
15. Here, Plaintiff has established a prima facie case of specific jurisdiction based on
Defendant’s “transaction” of purchasing asbestos cement siding from Ruberoid in New York
City for the purposes of rebranding that siding as a Bird product between the 1950s and 1970s
for sale in the northeast U.S., which is the product that Mr. Godfrey was exposed to in
Massachusetts.
I. BIRD IS SUBJECT TO SPECIFIC JURISDICTION UNDER CPLR 302(A)(1)
SINCE MR. GODFREY’S CLAIMS ARISE FROM DEFENDANT’S
TRANSACTION OF BUSINESS IN NEW YORK CITY WITH THE RUBEROID
COMPANY
16. C.P.L.R. § 302(a)(1) subjects an entity to specific jurisdiction for “transact[ing]
any business within the state.…if the cause of action arose from that transaction.” This inquiry
“necessarily requires examination of the particular facts in each case.” Licci v. Lebanese
Canadian Bank, 20 N.Y.3d 327, 338 (2012). It is not a narrow inquiry, but should be undertaken
by “[l]ooking at the transaction as a whole.” Hi Fashion Wigs, Inc. v. Peter Hammond Advert.,
Inc., 32 N.Y.2d 583, 587 (1973). In fact, “causation is not required, and [] the inquiry under the
statute is relatively permissive.” Licci, supra at 339. To satisfy this standard, there need only be a
relatedness such that the legal claims are not “completely unmoored” from the transaction. Id.
Recently, New York’s highest court addressed this standard, reiterating that the “claim need only
be ‘in some way arguably connected to the transaction.’” Al Rushaid v. Pictet & Cie, 28 N.Y.3d
316, 329 (2016), reargument denied, 28 N.Y.3d 1161 (2017) (emphasis added); see also D & R
Glob. Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 297-300 (2017).
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17. Indeed, the recent string of decisions from the U.S. Supreme Court actually
supports this interpretation. In Daimler AG v Bauman (134 S. Ct. 746, 757-58 (2014), the
Supreme Court avowed that since its prior decisions had been “increasingly trained” on specific
jurisdiction, “general jurisdiction has come to occupy a less dominant place in the contemporary
scheme.” (emphasis added). The Court’s predicate, therefore, for narrowing the instances where
general jurisdiction could be conferred was largely because specific jurisdiction had become a
more dominant basis for in personam jurisdiction. As a result, bases to confer specific
jurisdiction should be broadly construed to meet that contemporary scheme.
18. Here, Bird created contacts with this State by negotiating and entering into an
agreement with Ruberoid in New York City to purchase and resell – as rebranded Bird products –
the asbestos cement siding to which Mr. Godfrey was exposed in the early to mid-1970s (see
Exh A). See Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014) (“the relationship must arise out of
contacts that the ‘defendant himself’ creates with the forum State”) (emphasis in original)
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Bird even referred to this
agreement as a “transaction” entered into after “various discussions” with Ruberoid in New York
City (Exh A at 1). See CPLR 302(a)(1). Indeed, in Walden, the U.S. Supreme Court averred that
it is proper to uphold the assertion of jurisdiction over a defendant who has “purposefully
‘reach[ed] out beyond’ [its] State and into another by, for example, entering a contractual
relationship that ‘envisioned continuing and wide-reaching contacts’ in the forum State” Id.
(emphasis added) (quoting Burger King, supra, at 479–480).
19. In this regard, a recent specific jurisdiction decision from Illinois is highly
instructive, particularly so since the U.S. Supreme Court denied certiorari in October 2017. See
Meyers v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. Ct., 2016), appeal denied sub
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nom. Meyers v. GlaxoSmithKline LLC, 65 N.E.3d 842 (Ill. 2016), and cert. denied, No. 16-
1171, 2017 WL 1153625 (U.S. Oct. 2, 2017). There, non-resident plaintiffs of Illinois asserted
products liability claims against a non-resident pharmaceutical defendant based on injuries
sustained from the defendant’s product. The sole contact with Illinois was that the defendant had
contracted with physicians to conduct “a tiny sliver” of clinical trials for the product in Illinois,
compared to clinical trials being conducted in 43 other states as well as abroad. Id. at 1033.
Consistent with the aforementioned precept that specific jurisdiction should be broadly-construed
in light of the constriction on general jurisdiction, the Illinois Court noted that whether a claim
“arises out” the defendant’s in-state activities must be “lenient or flexible.” Id. at 1037.
20. It concluded that the transactions in the state and the “tiny sliver” of clinical trials
in the state met the “low threshold” of establishing a prima facie case of specific jurisdiction. Id.
at 1038-39. Importantly, the U.S. Supreme Court declined to disturb this determination, even
after having decided Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco
Cty. (137 S. Ct. 1773, 1777 (2017)). The evidence here goes beyond that which conferred
jurisdiction in the Meyers case.
21. To this end, the Affidavit of Mr. Starczewski, Esq., who is co-defendant
Certainteed’s Associate General Counsel, rather than Bird’s corporate representative, states in a
bald and conclusory manner that Bird discontinued its sale of cement siding in 1967, but retained
some inventory in Massachusetts until 1972 (Exh 5 to Pascarella Aff at ¶ 13). Mr. Starczewski
clearly has no personal knowledge of what Bird did in the 1960s and 1970s,3 and has neither
cited to nor appended any documentary evidence corroborating this bald statement. Cf. DiSalvo
v A.O. Smith Water Products, 124 AD3d 498, 499 (1st Dept., 2014) (conclusory affidavits made
3
Indeed, Mr. Starczewski merely states that he manages the asbestos lawsuits brought against Bird (Exh 5
to Pascarella Aff at ¶ 3).
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without a specific factual basis are insufficient to establish movant’s burden on summary
judgment); Cantolino v A.O. Smith Water Products [Fisher Scientific], et al., 2014 WL 574674
(Sup Ct. N.Y. Cty, 2014) (Heitler, J.) (“[a]s this Court has held many times, unsupported and
uncross-examined statements by a corporate representative are generally insufficient to form the
basis of a summary judgment motion” in an asbestos lawsuit); see also JMD Holding Corp. v.
Cong. Fin. Corp., 4 NY3d 373, 384-85 (2005).
22. By contrast, the contract Bird entered into with Ruberoid provided that it would
“continue in force indefinitely” until terminated “in writing” (Exh A at 3). No such written
evidence of termination has been proffered by Defendant to establish that this contract was not in
effect during the time of Mr. Godfrey’s exposure between 1973 and 1978.
23. Moreover, even assuming arguendo that the contract was terminated at some point
in the late 1960s or early 1970s, Defendant still cannot account for the residual market of its
siding. See Taylor v A.C. & S., Inc., 304 AD2d 403 (1st Dept 2003) (affirming the denial of
summary judgment where defendant AO Smith “failed to proffer any evidence that its asbestos
products were not being used residually in the marketplace by various companies in the 1980s
and 1990s, after it ceased manufacturing and selling such products. Further, in light of AO's
admission that it was the only manufacturer of asbestos products bearing the “AO” mark, there
was no possibility that the products allegedly used by Taylor bearing its trademark were
produced by another company.”) (emphasis added); Skelly v Georgia-Pacific, LLC, 2011 WL
2428708 (Sup. Ct., NY Cty., June 7, 2011); Lane v. A.W. Chesterton Co., 2009 WL 4233881
(Sup. Ct., NY Cty., Nov. 13, 2009) (“even if defendant ceased distributing Sote board in 1966, it
is not determinative of whether or not Mr. Lane used this product. It is well established that
products may be warehoused and not used for years.”).
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24. Here, Defendant has conceded that it warehoused asbestos siding purchased from
Ruberoid until at least 1972 (see Exh 5 to Pascarella Aff at ¶ 13). Just as in Taylor (supra),
Defendant has “failed to proffer any evidence that its asbestos siding was not being used
residually in the marketplace” after 1972, namely in Massachusetts – precisely where the siding
was warehoused – between 1973 and 1978. Indeed, the only asbestos cement siding Bird sold
during the 1960s and 1970s was purchased from Ruberoid. Mr. Godfrey, therefore, worked with
Bird asbestos siding that derived from Bird’s contract with Ruberoid in New York.
25. Inasmuch as Plaintiff has established a prima facie case that the cause of action
here “arose from” Bird’s “transaction” in New York City to purchase and resell asbestos siding
from Ruberoid, specific jurisdiction is conferred in this case under CPLR 302(a)(1).
II. BIRD HAS VOLUNTARILY CONSENTED TO PERSONAL JURISDICTION IN
THIS FORUM
26. Although Plaintiff is aware that this Court has previously rejected this argument,
it is presented for the purposes of preservation. Plaintiff asserts that Bird has consented to
jurisdiction by registering to do business here (see Exhibit E – Dept. of State Entity Information).
III. IN THE ALTERNATIVE TO DENIAL, THIS MOTION TO DISMISS SHOULD
BE DENIED WITHOUT PREJUDICE PENDING JURISDICTIONAL
DISCOVERY
27. CPLR 3211(d) provides that if “facts essential to justify opposition may exist but
cannot then be stated, the court may deny the motion, allowing the moving party to assert the
objection in his responsive pleading, if any, or may order a continuance to permit further
affidavits to be obtained or disclosure to be had and may make such other order as may be just.”
This is why under a motion to dismiss a plaintiff need only make a “sufficient start” as to
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jurisdiction to permit further discovery on the issue, and defendant can then move again at a later
date once discovery is complete. Peterson v. Spartan Indus., Inc., 33 N.Y.2d 463, 467 (1974);
Venegas v. Capric Clinic, 147 A.D.3d 457 (1st Dept., 2017); HBK Master Fund L.P. v. Troika
Dialog USA, Inc., 85 A.D.3d 665, 666 (1st Dept., 2011).
28. Here, trial has not been scheduled, and in light of the evidence of Bird’s
connections to New York, at a minimum, jurisdictional discovery is warranted, and this motion
should be denied without prejudice or held in abeyance pending discovery.
WHEREFORE, it is respectfully submitted that Bird Incorporated’s motion to dismiss on the
basis of lack of personal jurisdiction should be denied.
Dated: New York, New York
November 7, 2017 Respectfully submitted,
/s/ Seth A. Dymond
Seth A. Dymond
Belluck & Fox, LLP
546 Fifth Avenue, 4th Floor
New York, New York 10036
(212) 681-1575
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. : 190280/2015
SHIRLEY JO GODFREY, Individually and as
Executrix of the Estate of ROBERT C. GODFREY, Motion Seq. # 04
deceased,
Plaintiffs,
CERTIFICATION OF SERVICE
v.
A.O. SMITH WATER PRODUCTS, et al.
Defendants.
SETH A. DYMOND, affirms the following statements to be true pursuant to CPLR 2106:
I electronically filed and served the Plaintiffs’ Affirmation in Opposition to Bird Incorporated’s
Motion to Dismiss by using the NYSCEF system on November 7, 2017 to:
Lisa M. Pascarella, Esq.
Pascarella DiVita, PLLC
2137 Route 35, Suite 290
Holmdel, NJ 07733
mchase@pdltlaw.com
/s/ Seth A. Dymond
Seth A. Dymond
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Preview
FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. : 190280/2015 SHIRLEY JO GODFREY, Individually and as Executrix of the Estate of ROBERT C. GODFREY, Motion Seq. # 04 deceased, Plaintiffs, AFFIRMATION IN OPPOSITION TO DEFENDANT v. BIRD INCORPORATED’S MOTION TO DISMISS FOR A.O. SMITH WATER PRODUCTS, et al. LACK OF PERSONAL JURISDICTION Defendants. Seth A. Dymond, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following statements to be true under the penalties of perjury: 1. I am a partner of the law firm Belluck & Fox, LLP, attorneys for the above- captioned plaintiff, and I am fully familiar with the facts and circumstances of this case. 2. My affirmation is submitted in opposition to the motion made by BIRD INCORPORATED (hereinafter Defendant or Bird), pursuant to CPLR § 3211(a)(8), to dismiss the complaint insofar as asserted against it on the basis of lack of personal jurisdiction. 3. The plaintiff-decedent Robert Godfrey developed mesothelioma as a result of exposure to asbestos from, inter alia, his work installing Bird asbestos cement siding as a grounds crew laborer at Bradford College between 1973 and 1978. He was deposed over the course of three days on October 7, 2015, October 8, 2015, and November 19, 2015, and his videotaped de bene esse deposition was given on November 19, 2015 (see Exhibit 4 annexed to the Affirmation of Lisa Pascarella, Esq. on behalf of Defendant).1 There is no dispute that Mr. 1 To save paper and reduce the paper burden on this Court, Plaintiffs cite to and incorporate herein Mr. Godfrey’s deposition transcripts as annexed to Defendant’s moving papers. The videotaped deposition transcript is also included in Exhibit 4 to Defendant’s moving papers. 1 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 Godfrey’s exposure to asbestos from Bird asbestos siding occurred in Massachusetts, although he was born and raised in New York, resided in New York both before and after his Massachusetts exposure, he developed and was diagnosed with mesothelioma here, and he was treated here. 4. It is submitted that Plaintiff has established a prima facie case of specific jurisdiction over Bird under CPLR 302(a)(1) because Mr. Godfrey’s exposure to asbestos from Bird siding arose from Bird’s transaction with The Ruberoid Company in New York City to purchase for resale asbestos siding manufactured by Ruberoid that was rebranded as a Bird product. Furthermore, Bird has consented to jurisdiction in New York by voluntarily registering to do business here and by electing an agent for the service of process in New York.2 Lastly, at a minimum, considering Bird’s relevant connections to New York, Defendant should be required to produce jurisdictional discovery before this motion is decided. FACTUAL BACKGROUND A. Mr. Godfrey’s Exposure To Asbestos From Bird Asbestos Siding 5. Mr. Godfrey was born in New York in 1955, and resided in this State until 1973 when he attended Bradford College in Massachusetts (Exh 4 to Pascarella Aff at 25-26). In 1978, he returned to New York after graduating from Bradford College, and remained in New York for the rest of his life (Exh 4 to Pascarella Aff at 27-31). 6. While at Bradford College, Mr. Godfrey worked as a laborer on the grounds crew five days a week, and sometimes on the weekend as well, which amounted to 20 hours a week during the school year and 40 hours a week in the months before and after the school year (Exh 4 2 Plaintiff asserts this basis for the purposes of preservation, as she is aware this Court has previously rejected this argument. 2 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 to Pascarella Aff at 33-38). His duties included cleaning up after the maintenance and repairs performed in all the buildings, inside and out (Exh 4 to Pascarella Aff at 34, 43). 7. He stated that his duties included removing and replacing siding on various buildings at the College (Exh 4 to Pascarella Aff at 59, 63, 240, 242). He identified Bird as a manufacturer of the asbestos cement shingle siding he was exposed to (Exh 4 to Pascarella Aff at 239-40; Video dep. at 27, 31). The siding was labeled as “asbestos” and during installation he scored and snapped it, then drilled it (Exh 4 to Pascarella Aff at 240, 243; Video Dep. 31-32). This work exposed him to the asbestos dust generated from the siding (Exh 4 to Pascarella Aff at 226; Video Dep. at 32). B. Bird’s Contract With The Ruberoid Company In New York City To Purchase And Resell – As A Rebranded Product – Asbestos Siding During Mr. Godfrey’s Exposure Period 8. In its moving papers, Bird’s proffers the Affidavit of Michael Starczewski, Esq., who admits that for its northeastern U.S. customers, “Bird offered for sale cement siding shingles that were manufactured by The Ruberoid Company in New Jersey” (Exh 5 to Pascarella Aff at ¶ 13). 9. Although this rebranded product may have been manufactured in New Jersey, the contract to purchase this product from Ruberoid for resale as a Bird product was negotiated and entered into in New York City. On April 5, 1957, Bird entered into a contract with “Mr. E.J. O’Leary, Executive Vice President, The Ruberoid Company, 500 Fifth Avenue, New York 36, N.Y.” for the purchase and resale of asbestos cement products, including siding (see Exhibit A). This contract was clearly negotiated in New York, as Bird wrote to Ruberoid, stating that: Pursuant to our various discussions and correspondence with regard to the Ruberoid Company selling Bird Asbestos Cement Products, I believe that the 3 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 following represents our view of the various understands that we should have on this transaction: Exh A at 1) (emphasis added). 10. The terms of the agreement included the sale of “Asbestos Siding,” and that upon execution, “the arrangement will continue in force indefinitely unless terminated by a six months’ notice in writing given by either party to the other prior to the desired termination date” (Exh A at 3) (emphasis added). 11. This contract is bates-stamped, and it is authenticated by statements from Bird’s lawyer during a prior deposition of a Bird corporate representative, indicating that Bird made a full production of bates-stamped documents after reviewing and locating all the documents in its archives that related to asbestos (Exhibit B at 49-53). 12. Notably, E.J. O’Leary would later become the President of Ruberoid, with its offices still located in New York City (see Exhibit C – Oct. 26, 1962 letter). 13. Bird also has admitted that it currently does business in New York (see Exhibit D – Interrogatory Responses Excerpt, at Answer to Q5). ARGUMENT 14. To defeat a motion to dismiss for lack of personal jurisdiction, a Plaintiff need only show that jurisdiction “may exist.” Hessel v. Goldman, Sachs, & Co., 281 A.D.2d 247, 248 (1st Dept. 2001) (“While defendants argue that the complaint should be dismissed in its entirety against GSI because there is no basis for long-arm jurisdiction over it, inasmuch as plaintiff, in responding to the motion to dismiss, has shown that jurisdiction ‘may exist,’ the motion was properly denied.”) (quoting Fed. Ins. Co. v. Specialty Paper Box Co., 222 A.D.2d 254, 255 (1st Dept., 1995)). It is also well-settled that in determining if jurisdiction is conferred, all facts from 4 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 a plaintiff’s pleadings and affidavits are construed in the light most favorable to him. Citigroup Inc. v. City Holding Co, 97 F. Supp.2d 549, 563-64 (S.D.N.Y. 2000). 15. Here, Plaintiff has established a prima facie case of specific jurisdiction based on Defendant’s “transaction” of purchasing asbestos cement siding from Ruberoid in New York City for the purposes of rebranding that siding as a Bird product between the 1950s and 1970s for sale in the northeast U.S., which is the product that Mr. Godfrey was exposed to in Massachusetts. I. BIRD IS SUBJECT TO SPECIFIC JURISDICTION UNDER CPLR 302(A)(1) SINCE MR. GODFREY’S CLAIMS ARISE FROM DEFENDANT’S TRANSACTION OF BUSINESS IN NEW YORK CITY WITH THE RUBEROID COMPANY 16. C.P.L.R. § 302(a)(1) subjects an entity to specific jurisdiction for “transact[ing] any business within the state.…if the cause of action arose from that transaction.” This inquiry “necessarily requires examination of the particular facts in each case.” Licci v. Lebanese Canadian Bank, 20 N.Y.3d 327, 338 (2012). It is not a narrow inquiry, but should be undertaken by “[l]ooking at the transaction as a whole.” Hi Fashion Wigs, Inc. v. Peter Hammond Advert., Inc., 32 N.Y.2d 583, 587 (1973). In fact, “causation is not required, and [] the inquiry under the statute is relatively permissive.” Licci, supra at 339. To satisfy this standard, there need only be a relatedness such that the legal claims are not “completely unmoored” from the transaction. Id. Recently, New York’s highest court addressed this standard, reiterating that the “claim need only be ‘in some way arguably connected to the transaction.’” Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 329 (2016), reargument denied, 28 N.Y.3d 1161 (2017) (emphasis added); see also D & R Glob. Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 297-300 (2017). 5 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 17. Indeed, the recent string of decisions from the U.S. Supreme Court actually supports this interpretation. In Daimler AG v Bauman (134 S. Ct. 746, 757-58 (2014), the Supreme Court avowed that since its prior decisions had been “increasingly trained” on specific jurisdiction, “general jurisdiction has come to occupy a less dominant place in the contemporary scheme.” (emphasis added). The Court’s predicate, therefore, for narrowing the instances where general jurisdiction could be conferred was largely because specific jurisdiction had become a more dominant basis for in personam jurisdiction. As a result, bases to confer specific jurisdiction should be broadly construed to meet that contemporary scheme. 18. Here, Bird created contacts with this State by negotiating and entering into an agreement with Ruberoid in New York City to purchase and resell – as rebranded Bird products – the asbestos cement siding to which Mr. Godfrey was exposed in the early to mid-1970s (see Exh A). See Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014) (“the relationship must arise out of contacts that the ‘defendant himself’ creates with the forum State”) (emphasis in original) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Bird even referred to this agreement as a “transaction” entered into after “various discussions” with Ruberoid in New York City (Exh A at 1). See CPLR 302(a)(1). Indeed, in Walden, the U.S. Supreme Court averred that it is proper to uphold the assertion of jurisdiction over a defendant who has “purposefully ‘reach[ed] out beyond’ [its] State and into another by, for example, entering a contractual relationship that ‘envisioned continuing and wide-reaching contacts’ in the forum State” Id. (emphasis added) (quoting Burger King, supra, at 479–480). 19. In this regard, a recent specific jurisdiction decision from Illinois is highly instructive, particularly so since the U.S. Supreme Court denied certiorari in October 2017. See Meyers v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. Ct., 2016), appeal denied sub 6 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 nom. Meyers v. GlaxoSmithKline LLC, 65 N.E.3d 842 (Ill. 2016), and cert. denied, No. 16- 1171, 2017 WL 1153625 (U.S. Oct. 2, 2017). There, non-resident plaintiffs of Illinois asserted products liability claims against a non-resident pharmaceutical defendant based on injuries sustained from the defendant’s product. The sole contact with Illinois was that the defendant had contracted with physicians to conduct “a tiny sliver” of clinical trials for the product in Illinois, compared to clinical trials being conducted in 43 other states as well as abroad. Id. at 1033. Consistent with the aforementioned precept that specific jurisdiction should be broadly-construed in light of the constriction on general jurisdiction, the Illinois Court noted that whether a claim “arises out” the defendant’s in-state activities must be “lenient or flexible.” Id. at 1037. 20. It concluded that the transactions in the state and the “tiny sliver” of clinical trials in the state met the “low threshold” of establishing a prima facie case of specific jurisdiction. Id. at 1038-39. Importantly, the U.S. Supreme Court declined to disturb this determination, even after having decided Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty. (137 S. Ct. 1773, 1777 (2017)). The evidence here goes beyond that which conferred jurisdiction in the Meyers case. 21. To this end, the Affidavit of Mr. Starczewski, Esq., who is co-defendant Certainteed’s Associate General Counsel, rather than Bird’s corporate representative, states in a bald and conclusory manner that Bird discontinued its sale of cement siding in 1967, but retained some inventory in Massachusetts until 1972 (Exh 5 to Pascarella Aff at ¶ 13). Mr. Starczewski clearly has no personal knowledge of what Bird did in the 1960s and 1970s,3 and has neither cited to nor appended any documentary evidence corroborating this bald statement. Cf. DiSalvo v A.O. Smith Water Products, 124 AD3d 498, 499 (1st Dept., 2014) (conclusory affidavits made 3 Indeed, Mr. Starczewski merely states that he manages the asbestos lawsuits brought against Bird (Exh 5 to Pascarella Aff at ¶ 3). 7 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 without a specific factual basis are insufficient to establish movant’s burden on summary judgment); Cantolino v A.O. Smith Water Products [Fisher Scientific], et al., 2014 WL 574674 (Sup Ct. N.Y. Cty, 2014) (Heitler, J.) (“[a]s this Court has held many times, unsupported and uncross-examined statements by a corporate representative are generally insufficient to form the basis of a summary judgment motion” in an asbestos lawsuit); see also JMD Holding Corp. v. Cong. Fin. Corp., 4 NY3d 373, 384-85 (2005). 22. By contrast, the contract Bird entered into with Ruberoid provided that it would “continue in force indefinitely” until terminated “in writing” (Exh A at 3). No such written evidence of termination has been proffered by Defendant to establish that this contract was not in effect during the time of Mr. Godfrey’s exposure between 1973 and 1978. 23. Moreover, even assuming arguendo that the contract was terminated at some point in the late 1960s or early 1970s, Defendant still cannot account for the residual market of its siding. See Taylor v A.C. & S., Inc., 304 AD2d 403 (1st Dept 2003) (affirming the denial of summary judgment where defendant AO Smith “failed to proffer any evidence that its asbestos products were not being used residually in the marketplace by various companies in the 1980s and 1990s, after it ceased manufacturing and selling such products. Further, in light of AO's admission that it was the only manufacturer of asbestos products bearing the “AO” mark, there was no possibility that the products allegedly used by Taylor bearing its trademark were produced by another company.”) (emphasis added); Skelly v Georgia-Pacific, LLC, 2011 WL 2428708 (Sup. Ct., NY Cty., June 7, 2011); Lane v. A.W. Chesterton Co., 2009 WL 4233881 (Sup. Ct., NY Cty., Nov. 13, 2009) (“even if defendant ceased distributing Sote board in 1966, it is not determinative of whether or not Mr. Lane used this product. It is well established that products may be warehoused and not used for years.”). 8 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 24. Here, Defendant has conceded that it warehoused asbestos siding purchased from Ruberoid until at least 1972 (see Exh 5 to Pascarella Aff at ¶ 13). Just as in Taylor (supra), Defendant has “failed to proffer any evidence that its asbestos siding was not being used residually in the marketplace” after 1972, namely in Massachusetts – precisely where the siding was warehoused – between 1973 and 1978. Indeed, the only asbestos cement siding Bird sold during the 1960s and 1970s was purchased from Ruberoid. Mr. Godfrey, therefore, worked with Bird asbestos siding that derived from Bird’s contract with Ruberoid in New York. 25. Inasmuch as Plaintiff has established a prima facie case that the cause of action here “arose from” Bird’s “transaction” in New York City to purchase and resell asbestos siding from Ruberoid, specific jurisdiction is conferred in this case under CPLR 302(a)(1). II. BIRD HAS VOLUNTARILY CONSENTED TO PERSONAL JURISDICTION IN THIS FORUM 26. Although Plaintiff is aware that this Court has previously rejected this argument, it is presented for the purposes of preservation. Plaintiff asserts that Bird has consented to jurisdiction by registering to do business here (see Exhibit E – Dept. of State Entity Information). III. IN THE ALTERNATIVE TO DENIAL, THIS MOTION TO DISMISS SHOULD BE DENIED WITHOUT PREJUDICE PENDING JURISDICTIONAL DISCOVERY 27. CPLR 3211(d) provides that if “facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just.” This is why under a motion to dismiss a plaintiff need only make a “sufficient start” as to 9 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 jurisdiction to permit further discovery on the issue, and defendant can then move again at a later date once discovery is complete. Peterson v. Spartan Indus., Inc., 33 N.Y.2d 463, 467 (1974); Venegas v. Capric Clinic, 147 A.D.3d 457 (1st Dept., 2017); HBK Master Fund L.P. v. Troika Dialog USA, Inc., 85 A.D.3d 665, 666 (1st Dept., 2011). 28. Here, trial has not been scheduled, and in light of the evidence of Bird’s connections to New York, at a minimum, jurisdictional discovery is warranted, and this motion should be denied without prejudice or held in abeyance pending discovery. WHEREFORE, it is respectfully submitted that Bird Incorporated’s motion to dismiss on the basis of lack of personal jurisdiction should be denied. Dated: New York, New York November 7, 2017 Respectfully submitted, /s/ Seth A. Dymond Seth A. Dymond Belluck & Fox, LLP 546 Fifth Avenue, 4th Floor New York, New York 10036 (212) 681-1575 10 of 11 FILED: NEW YORK COUNTY CLERK 11/07/2017 03:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 11/07/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. : 190280/2015 SHIRLEY JO GODFREY, Individually and as Executrix of the Estate of ROBERT C. GODFREY, Motion Seq. # 04 deceased, Plaintiffs, CERTIFICATION OF SERVICE v. A.O. SMITH WATER PRODUCTS, et al. Defendants. SETH A. DYMOND, affirms the following statements to be true pursuant to CPLR 2106: I electronically filed and served the Plaintiffs’ Affirmation in Opposition to Bird Incorporated’s Motion to Dismiss by using the NYSCEF system on November 7, 2017 to: Lisa M. Pascarella, Esq. Pascarella DiVita, PLLC 2137 Route 35, Suite 290 Holmdel, NJ 07733 mchase@pdltlaw.com /s/ Seth A. Dymond Seth A. Dymond 11 of 11