Preview
FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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SHIRLEY JO GODFREY, Individually and as Executrix Hon. Lucy Billings, J.S.C.
for the Estate of ROBERT C. GODFREY,
Index No.: 190280-2015
Plaintiff,
-against- DEFENDANT AMERICAN
BILTRITE INC.'S
AMERICAN BILTRITE INC., et al., MEMORANDUM OF LAW IN
SUPPORT OF ITS MOTION TO
Defendant, DISMISS FOR LACK OF
PERSONAL JURISDICTION
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INTRODUCTION
The United States Supreme Court recently held in Daimler A.G. v. Bauman, 134 S. Ct.
746 (2014), that for purposes of general jurisdiction, a corporation may properly be considered
home"
"at in two locations: (1) a forum where it is incorporated or (2) where itmaintains its
principal place of business. Id. at 760.
Here, Defendant American Biltrite Inc. is incorporated in the State of Delaware, and
maintains itsprincipal place of business in the State of Massachusetts.
This Court lacks jurisdiction over American Biltrite Inc. because Plaintiff has sued
American Biltrite for injuries to Robert as a result of alleged exposure to asbestos-
Inc., Godfrey
containing Amtico floor tilewhich did not occur in the State of New York, but solely in the State
of Massachusetts.
Plaintiff"
Accordingly, Plaintiff's action against American Biltrite Inc. should be dismissed under
CPLR 3211(a)(8) for lack of both general and specific personal jurisdiction.
STATEMENT OF FACTS
4840-0547-2055v.1
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On or about September 1, 2015, Plaintiffs, Robert and Shirley Jo Godfrey, filed their
Complaint in New York, County, New York, against numerous defendants, including this
defendant, named in the Complaint as AMERICAN BILTRITE, INC., Individually and as
Successor to Amtico Floors. See Complaint, attached hereto as Exhibit A.
Plaintiff amended her Complaint, filing an Amended Complaint Wrongful Death claim
reflecting the appointment of Shirley Jo Godfrey as executrix of the estate of Robert C. Godfrey
on April 13, 2016. See Amended Complaint, attached hereto as Exhibit B.
Plaintiff's Complaints make no specified allegations regarding the basis for this Court to
exercise personal jurisdiction over American Biltrite Inc. See Exhibits A & B.
In Plaintiff's Responses to Interrogatories, the only allegations of Mr. Godfrey's asbestos
exposure are from approximately 1973 to 1978 when he was employed to do carpentry work at
Bradford College in Haverhill, Massachusetts. See Plaintiff Plaintiff's Responses to
Interrogatories at Chart A, attached hereto as Exhibit C. Plaintiff's Responses to Interrogatories
make no allegations regarding American Biltrite the basis for this Court to exercise personal
jurisdiction over American Biltrite Inc.
Robert Godfrey offered three volumes of discovery deposition testimony and a
videotaped deposition. See Discovery Deposition Transcript of Plaintiff, Robert Godfrey,
Volume 1, October 7, 2015, attached hereto as Exhibit D; Volume 2, October 8, 2015, attached
hereto as Exhibit E; Volume 3, November 19, 2015, attached hereto as Exhibit F; and
Videotaped Deposition Transcript, November 19, 2015, attached hereto as Exhibit G.
According to Mr. Godfrey's own testimony, the vast majority of his alleged asbestos
exposure and ALL of his alleged exposure to Amtico tile came from working at Bradford
College in Haverhill, Massachusetts. See Exhibits D-G.
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The only site that Mr. Godfrey alleged that he was exposed to asbestos outside of
Haverhill, Massachusetts was in New York at Bohack's Square in Queens in 1979 or 1980.
Exhibit D at 94:16-98:7; Exhibit G at 37:25-40:5. However, he could not testify that Amtico tile
was a brand that he saw at Bohack's Square in Queens. Exhibit G at 86:2-12.
American Biltrite Inc. has been incorporated in the State of Delaware since 1954 and
maintains its principal place of business in the State of Massachusetts. See September 2017
Affidavit of Skip Feist, ¶ 3, attached hereto as Exhibit H.
Further, in 2016 only 2.5% of American Biltrite's sales were generated in the State of
New York. Id. at ¶ 4. In 2015, only 2.3% of American Biltrite's sales were generated in the State
of New York. Id.
American Biltrite employs seven out of 662 personnel - or 1.05% of its
only (7)
workforce - in the State of New York. Id. at 5.
¶
American Biltrite Inc. maintains one - a showroom/office - in
only (1) facility jewelry
the State of New York out of its37 total facilities. Id. at ¶ 6.
LEGAL ARGUMENT
The facts in this case clearly establish that personal jurisdiction over this defendant in the
State of New York is improper. See Exhibits A-F; Daimler A.G. v. Bauman, 134 S. Ct. 746
(2014).
A party may move for judgment dismissing the cause of action on the ground that the
court does not have jurisdiction on the person of the defendant. See CPLR 3211(a)(8).
"Although a plaintiff is not required to plead and prove personal jurisdiction in the
plaintiff."
complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff.
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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 plaintiff may establish personal jurisdiction by showing either general jurisdiction,
where the defendant's affiliations with the forum state are so continuous and systematic as to
home"
render them essentially "at in the state or specific jurisdiction, where the defendant has
sufficient contacts relating to the underlying controversy with the forum state. Goodyear Dunlop
Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011).
L This Court lacks general jurisdiction over American Biltrite Inc.
where neither its state of incorporation nor its principal place of
business is in New York, and where its New York presence is even
more miniscule than those reviewed by the Supreme Court in Daimler
and controlling New York authority.
This Court cannot assert general jurisdiction over American Biltrite Inc. under CPLR 301
because it isnot incorporated in New York and New York is not its principal place of business.
See CPLR 301; D&R Global Selections Solo v. Bodega Olegario Falcon Pineiro, 18 A.D.3d 486
(1"
Dept. 2015). The facts of this case clearly show that New York cannot assert general
jurisdiction over American Biltrite Inc. under Daimler or New York cases decided after the Daimler
decision.
Initially, general jurisdiction was loosely defined as being established when "the
[defendant's] affiliations with the [forum s]tate are so continuous and systematic as to render them
state."
essentially at home in the forum Goodyear Dunlop Tires Operations, S.A., 131 S. Ct. at
2851. However, this definition has since been refined.
The United States Supreme Court recently circumscribed the relationships required to
subject a corporation to general jurisdiction in Daimler A.G. See Daimler A.G., ,134
134 S. Ct. .74.6.
746. In
Daimler, the Court reiterated that general jurisdiction will exist over a corporation where the
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home."
corporation is fairly regarded as "at Id. at 760 (quoting Lea Brilmayer et al.,A General
Look at General 66 TEX. L. REV. 728 (1988)). It stated that the "paradigm all-
Jurisdiction, 721,
forums" - home"
purpose where a corporate defendant could be regarded "at for general
- business."
jurisdiction "are a corporation's place of incorporation and principal place of Id. at
749. Citing Daimler A.G., the Appellate Division, First Department has held that where a
defendant "neither is incorporated nor has its principal place of business here, New York courts
301."
may not exercise jurisdiction over it under CPLR D&R Global Selections, 128 AD3d at
487. See also Magdalena v. Lins, 123 A.D.3d 601 (1st Dept. 2014) (similarly finding no basis
for general jurisdiction pursuant to CPLR 301 citing Daimler).
Additionally, the Daimler A.G. Court stated that approving general jurisdiction in every
State in which a corporation engages in a substantial, continuous, and systematic course of
grasping."
business would be "unacceptably Id. at 761. However, the Court did review the
defendant's contacts with the forum.
The Daimler plaintiffs were 22 Argentinian residents, filing suit in a California Federal
District for acts occurring in Argentina. Id. at 748, 751-52. Defendant Daimler's subsidiary,
Mercedes-Benz USA, had its principal place of business in New Jersey, and was incorporated in
Delaware with headquarters in Germany. Id. at 748, 752. Plaintiffs alleged that defendant's
contacts with California were that it maintained Mercedes-Benz facilities,a regional office and
other vehicle centers in the state. Id. at 752. Additionally, the plaintiffs alleged that Mercedes-Benz
was the largest supplier of luxury vehicles in the California market, in particular generating 10% of
allU.S. new vehicle sales in California, and generating 2.4% of Daimler worldwide sales there. Id.
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In determining that California did not have general jurisdiction over Daimler, the Supreme
Court noted that neither Daimler nor Mercedes was incorporated or had its principal place of
business in California. Id. at 761.
defendants'
Moreover, the Court also reasoned that had the defendants California activities sufficed,
"the same global reach would presumably be available in every other state in which [Mercedes']
sizeable."
sales are Id.
"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
suit.'"
conduct will and will not render them liable to Id. at 761-62 (citation omitted).
The United States Supreme Court very recently reaffirmed and strengthened its
adherence to Daimler A.G. in BNSF Ry. Co. v Tyrrell, 137 S Ct 1549, 198 L Ed 2d 36 [2017]. In
BNSF Ry. Co., two different employee plaintiffs sued the railroad company defendant under the
Employers'
Federal Liability Act. Id. at 1551. While the "injuries allegedly sustained
Montana,"
[occurred] outside of the plaintiffs brought suit in a Montana state court. Id. After
the defendant sought to dismiss both actions for want of personal jurisdiction, the Montana state
courts, going all the way up to the Montana Supreme Court, held that "Montana courts could
business'
exercise general personal jurisdiction over [the defendant] because [it] both 'did business . . .
within' State."
and was 'found the Id.
The United States Supreme Court, however, held that this was against the Fourteenth
Amendment's Due Process Clause, explaining that Daimler A.G. applied to claims arising from
Employers'
the Federal Employers Liability Act. Id. at 1558. It noted that the defendant is not incorporated
nor is itsprincipal place of business in Montana, thus general personal jurisdiction over the same
business"
is improper. Id. at 1559. It dismissed the arguments that "doing or being "found
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within"
Montana were enough to establish general personal jurisdiction, noting that these notions
were contrary to Daimler A.G. See id. Despite the fact that BNSF had over 2,000 miles of
railroad track and more than 2,000 employees in Montana, the Court found that BNSF was not
home' State."
"so heavily engaged in activity in Montana 'as to render [it] essentially at in that
Id. citing Daimler, 134 S.Ct., at 761.
American Biltrite Inc. has provided the affidavit of Vice President -
Here, Skip Feist,
Finance and Chief Financial Officer for American Biltrite, Inc. See Exhibit H. In it, Mr. Feist
declares that American Biltrite Inc. has been incorporated in the State of Delaware since 1954
and maintains itsprincipal place of business in the State of Massachusetts. Id. at¶ 3.
In addition, for the past two business years, only 2.3% to 2.5% of American Biltrite's
sales were generated in the State of New York. Id. at ¶ 4. And American Biltrite only employs
seven out of 662 personnel - or 1.05% of itsworkforce - in the State of New York. Id. at 5.
(7) ¶
American Biltrite Inc. maintains one - a
Finally, only (1) facility jewelry
showroom/office - in the State of New York out of its 37 total facilities. Id at 6.
¶
It is clear, then, under Daimler and BNSF and other New York cases following it, that
general jurisdiction over American Biltrite Inc. is improper. See Exhibit H. American Biltrite is
home"
not and cannot be considered "at in New York because it is neither incorporated in New
York, nor does ithave itsprincipal place of business in New York. Id.
Moreover, there is nothing to suggest that the facts of this case present some kind of
case"
"exceptional so as to warrant exercising general jurisdiction over this defendant. In fact,
American Biltrite's New York contacts are far less than the forum contacts of the Daimler and
BNSF defendants, where the United States Supreme Court refused to find general jurisdiction. See
Exhibit H; BNSF Ry. Co., 137 S Ct 1549; and Daimler, 134 S. Ct. at 751-52. Asserting general
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"grasping," "exorbitant"
jurisdiction over American Biltrite Inc. here would likewise be a exercise,
and has been specifically denounced by the United States Supreme Court. Daimler, 134 S. Ct. at at
761. This Court should therefore dismiss this case as to American Biltrite Inc. for lack of personal
jurisdiction.
H. This Court lacks specific jurisdiction over American Biltrite Inc.
under New York's Long-Arm Statute, CPLR 302
To establish specific jurisdiction, the suit must "arise out of or relate to the defendant's
forum."
contacts with the Daimler A.G., 134 S. Ct. at 748-49 (quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)).
Plaintiff does not cite to any particular provisions of New York's long-arm statute in their
Amended Complaint; nor do they assert any basis for this Court to exercise jurisdiction. See
Exhibits A & B. Additionally, a finding of a lack of Specific Jurisdiction here is consistent with
recent United States Supreme Court precedent. See Bristol-Myers Squibb Co. v Superior Ct. of
Cahfornia, San Francisco County, 137 S Ct 1773, 198 L Ed 2d 395 [2017]. Moreover, this Court
York'
recently found that American Biltrite Inc. is not subject to specific jurisdiction under New York's
long-arm statute. See Trumbull v. Adience, Inc.,,et et
al., Index No. 190084/2016 (Sup. Ct. N.Y.
County, March 6, 2017) (Moulton, J.),attached hereto as Exhibit I.
A. This Court Does Not Have Jurisdiction Under CPLR 302(a)(1)
In New York, CPLR 302(a)(1) authorizes a court to exercise jurisdiction over foreign
defendants for tort arising in the state arising from a defendant's transaction of business in this State.
Pichardo, 122 A.D.3d at 701.
"In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court
must determine (1) whether the defendant transacted business in New York and, ifso, (2) whether
transaction."
the cause of action asserted arose from that Id. The requirement of establishing a
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nexus between the he business a non-domiciliary transacts in New York and the cause action sued
suit..." ."
upon is "[e]ssential to the maintenance of a suit . . McGowan v. Smith, 52 N.Y.2d, 268, 272
[1981]. The McGowan Court continued that "it is this basic requirement that differentiates the
long-arm authority of New York courts under CPLR 302(subd [a],par 1) from the more traditional
301..." ."
authority of the New York courts under CPRL 301 . . Id.
The Court of Appeals interpreted the second prong of the inquiry to require that, "in light of
nexus,' relationship'
all the circumstances, there must be an 'articulable or 'substantial between a
defendant's in-state activity and the claim asserted. Id. at 272; Johnson v. Ward 4 N.Y.3d 516, 519
(2005); Kreutter v. McFadden Oil Corp.,,7171 .N.Y.2d
N.Y.2d 460, 467 (1988); and Licci v. Lebanese Can.
Bank, SAL, 20 N.Y.3d 327, 339 (Ct. App. 2012).
"[A]t a minimum [there must be] a relatedness between the transaction and the legal claim
former"
such that the latterisnot completely unmoored from the See Licci, 20 N.Y.3d at 339.
In McGowan, the infant plaintiff, a New York resident, was injured in Canada by an
defective fondue pot purchased in New York but shipped from Japan a Japanese third-
allegedly by
party defendant from Japan. McGowan, 52 N.Y.2d at 270. The record indicted that the
nondomiciliary Japanese third party defendant's representatives made several trips to New York to
perform market research and assessing what type of products might be saleable in New York. Id. at
272. While the Court recognized that the visits were purposeful, and that the Japanese third-party
business"
defendant "transacted in New York, the business was not sufficiently related to the cause
of action to support jurisdiction. Id. at 270 and 273.
In this case, the relationship between the cause of action asserted in the Complaint and
"insubstantial"
American Biltrite's activities in New York are too to warrant personal jurisdiction
over it. See Pichardo, 122 A.D.3d at 701.
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As stated above, Plaintiff's claims against American Biltrite Inc. for alleged injuries to
Robert Godfrey are based on their allegations that Mr. Godfrey worked around Amtico in Haverhill,
Massachusetts. See Exhibits A-G. According to Mr. Godfrey's own testimony, the vast majority of
his alleged asbestos exposure and ALL of his alleged exposure to Amtico tilecame from working at
Bradford College in Haverhill, Massachusetts. See Exhibits D-G.
Like in McGowan, this case involves a plaintiff injured outside of the state of New York.
Plaintiff's cause of action stems from American Biltrite's alleged breach of its duty of care in
including asbestos in tile, which allegedly caused injury to Robert Godfrey while at a Haverhill,
Massachusetts premises. See Exhibits A-G. As such, the alleged duty owed by American Biltrite
Inc. to Robert Godfrey, the alleged breach of that duty, and Mr. Godfrey's alleged injury all arose or
occurred out of this state. See Pichardo, 122 A.D.3d at 701; McGowan, 52 N.Y.2d at 273.
Plaintiffs have clearly failed to demonstrate a substantial relationship or an articulable nexus
between the American Biltrite's activities in New York and the causes of action asserted in the
Complaint. Accordingly, this Court is not authorized to exercise specific personal jurisdiction over
the American Biltritepursuant to CPLR 302(a)(1).
B. American Biltrite Inc. is Not Subject to Personal Jurisdiction
Under CPLR § 302(a)(2). .
Under CPLR "a court exercise personal jurisdiction over non-
§ 302(a)(2), may any
...."
domiciliary . .. who in person or through an agent . .. commits a tortious act within the state ....
CPLR § 302(a)(2). CPLR § 302(a)(2) has been narrowly construed to apply only when the
defendant's wrongful conduct is performed in New York. (Longines-Wittnauer Watch Co. v Barnes
& Reinecke, Inc., 15 NY2d 443, 465 (1965)); see also Overseas Media, Inc. v Skvortsov, 407
F.Supp.2d 563, 572 (SDNY 2006) (observing that this provision requires allegations that "defendant
York"
or his agents committed a tortious act while physically present in New [alterations and
I
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internal quotations omitted]). In this case, as previously discussed, plaintiff's allegation is that he
was exposed to American Biltrite Inc.'s floor tile outside of the State. Thus, jurisdiction does not lie
under this section.
C. American Biltrite Inc. is Not Subject to Personal Jurisdiction
Under CPLR 302(a)(3).
Plaintiff cannot show that American Biltrite Inc. is subject to personal jurisdiction in this
Court based on Section 302(a)(3). This section provides for personal jurisdiction over anyone who
state,"
"commits a tortious act without the state causing injury to person or property within the if
one of two enumerated additional requirements are met. CPLR § 302(a)(3). However, personal
jurisdiction cannot be exercised over American Biltrite Inc. pursuant to this section of the long-arm
statute because plaintiff's alleged exposure to American Biltrite Inc.'s product occurred outside the
State of New York. "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
(1"
occurred in Massachusetts). See also Stern v. Four Points by Sheraton 133 A.D.3d 514, 514-15
Dept. 2015). As plaintiff's alleged exposure occurred in Massachusetts, CPLR 302(a)(3) does not
confer jurisdiction of this Court over American BiltriteInc.
D. A Finding of a Lack of Specific Jurisdiction is Consistent with
Recent United States Supreme Court Precedent
As shown above, specific jurisdiction over this defendant is improper. This conclusion is
supported by recent United States Supreme Court precedent.
11
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The United States Supreme Court addressed the issue of specific jurisdiction in Bristol-
Myers Squibb Co. v. Superior Ct. of Cahfornia, San Francisco County, 137 S Ct 1773, 198 L Ed 2d
395 [2017]. In Bristol-Meyers Squibb Co., a group of plaintiffs sued the pharmaceutical company
defendant for alleged damages from taking a drug. Id at 1775. Even though the plaintiffs were
not residents of California, they sued the defendant in California state court. Id. The defendant
sought to quash service of summons for want of personal jurisdiction, arguing that both specific
and general jurisdiction were improper. Id. The defendant argued that it "is incorporated in
Delaware[,] headquartered in New York,, and . .. maintains substantial operations in both New
Jersey,"
York and New while the plaintiffs contended that the defendant sold the drug at issue in
California. Id.
The State Court of Appeal concluded that California courts lacked general jurisdiction,
but found that specific jurisdiction was present. Id. The State Supreme Court affirmed this
approach'
decision applying "a 'sliding scale to specific jurisdiction, concluding that [the
ranging'
defendant's] 'wide contacts with [California] were enough to support a finding of
jurisdiction."
specific Id. at 1775-76.
However, the United States Supreme Court held that California's "sliding scale
approach" jurisdiction,"
to specific jurisdictions "resembles a loose and spurious form of general
precedents."
and was "difficult to square with this Court's Id. It stated that the finding of specific
plaintiffs'
jurisdiction lacked identification of "any adequate link between [California] and the
claims,"
and "[t]he mere fact that other plaintiffs were prescribed, obtained, and ingested [the
drug at issue] in California does not allow [it] to assert specific jurisdiction over the
nonresidents' claims."
Id.
I
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Hereto, there is no adequate link, or any link for that matter, between Mr. Godfrey's
claims against American Biltrite Inc. and the State of New York.
E. This Court has recently held that American Biltrite Inc. is not subject
to specific jurisdiction under New York's ion -arm statute.
Importantly, this Court has previously found in the Trumbull matter, that American
Biltrite Inc. is not subject to specific jurisdiction under New York's long-arm statute. See Exhibit I
at 9. In that case, the plaintiff had only come into contact with Amtico in the state of Missouri.
See id. Justice Moulton considered CPLR 302(a)(1), 302(a)(2), and 302(a)(3), to find that
specific jurisdiction was lacking over American Biltrite Inc. and granted American Biltrite Inc.'s
motion for summary judgment in that case. See id.
The facts of Trumbull are quite similar here, except instead of Missouri, all of Mr.
Godfrey's alleged work with or around Amtico tiles occurred in Massachusetts.
Plaintiffs'
Moreover, your Honor recently denied motion to reargue and renew in the
Plaintiffs'
Trumbull matter finding that contention that American Biltrite purchased the asbestos
for itstiles from Union Carbide Corporation, whose principal place of business was in New York
during the period of plaintiff's exposure to American Biltrite's tiles, without more, was not
grounds for the Court to exercise specific jurisdiction. See Trumbull v. audience, Inc., et al.,Index
No. 190084/2016 (Sup. Ct. N.Y. County, January 23, 2018) (Billings, J.), attached hereto as
Exhibit J.
CONCLUSION
WHEREFORE Defendant, AMERICAN BILTRITE INC., respectfully prays that the
Court enter an Order dismissing this action for lack of personal jurisdiction pursuant to CPLR
3211(a)(8), and for such other relief as deemed just and proper.
I
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Dated: February 5, 2018 Respectfully submitted,
New York, New York KUROWSKI SHULTZ LLC
By: /s/ Justin A. Reinhardt
David J. Fisher, Esq.
Justin A. Reinhardt, Esq.
Syed K. Rizvi, Esq.
180 Maiden Lane, Suite 901
New York, New York 10038
P: (9
Preview
FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ------------------------------------------------------------------X SHIRLEY JO GODFREY, Individually and as Executrix Hon. Lucy Billings, J.S.C. for the Estate of ROBERT C. GODFREY, Index No.: 190280-2015 Plaintiff, -against- DEFENDANT AMERICAN BILTRITE INC.'S AMERICAN BILTRITE INC., et al., MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO Defendant, DISMISS FOR LACK OF PERSONAL JURISDICTION X ------------------------------------------------------------------X INTRODUCTION The United States Supreme Court recently held in Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014), that for purposes of general jurisdiction, a corporation may properly be considered home" "at in two locations: (1) a forum where it is incorporated or (2) where itmaintains its principal place of business. Id. at 760. Here, Defendant American Biltrite Inc. is incorporated in the State of Delaware, and maintains itsprincipal place of business in the State of Massachusetts. This Court lacks jurisdiction over American Biltrite Inc. because Plaintiff has sued American Biltrite for injuries to Robert as a result of alleged exposure to asbestos- Inc., Godfrey containing Amtico floor tilewhich did not occur in the State of New York, but solely in the State of Massachusetts. Plaintiff" Accordingly, Plaintiff's action against American Biltrite Inc. should be dismissed under CPLR 3211(a)(8) for lack of both general and specific personal jurisdiction. STATEMENT OF FACTS 4840-0547-2055v.1 1 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 On or about September 1, 2015, Plaintiffs, Robert and Shirley Jo Godfrey, filed their Complaint in New York, County, New York, against numerous defendants, including this defendant, named in the Complaint as AMERICAN BILTRITE, INC., Individually and as Successor to Amtico Floors. See Complaint, attached hereto as Exhibit A. Plaintiff amended her Complaint, filing an Amended Complaint Wrongful Death claim reflecting the appointment of Shirley Jo Godfrey as executrix of the estate of Robert C. Godfrey on April 13, 2016. See Amended Complaint, attached hereto as Exhibit B. Plaintiff's Complaints make no specified allegations regarding the basis for this Court to exercise personal jurisdiction over American Biltrite Inc. See Exhibits A & B. In Plaintiff's Responses to Interrogatories, the only allegations of Mr. Godfrey's asbestos exposure are from approximately 1973 to 1978 when he was employed to do carpentry work at Bradford College in Haverhill, Massachusetts. See Plaintiff Plaintiff's Responses to Interrogatories at Chart A, attached hereto as Exhibit C. Plaintiff's Responses to Interrogatories make no allegations regarding American Biltrite the basis for this Court to exercise personal jurisdiction over American Biltrite Inc. Robert Godfrey offered three volumes of discovery deposition testimony and a videotaped deposition. See Discovery Deposition Transcript of Plaintiff, Robert Godfrey, Volume 1, October 7, 2015, attached hereto as Exhibit D; Volume 2, October 8, 2015, attached hereto as Exhibit E; Volume 3, November 19, 2015, attached hereto as Exhibit F; and Videotaped Deposition Transcript, November 19, 2015, attached hereto as Exhibit G. According to Mr. Godfrey's own testimony, the vast majority of his alleged asbestos exposure and ALL of his alleged exposure to Amtico tile came from working at Bradford College in Haverhill, Massachusetts. See Exhibits D-G. 2 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 The only site that Mr. Godfrey alleged that he was exposed to asbestos outside of Haverhill, Massachusetts was in New York at Bohack's Square in Queens in 1979 or 1980. Exhibit D at 94:16-98:7; Exhibit G at 37:25-40:5. However, he could not testify that Amtico tile was a brand that he saw at Bohack's Square in Queens. Exhibit G at 86:2-12. American Biltrite Inc. has been incorporated in the State of Delaware since 1954 and maintains its principal place of business in the State of Massachusetts. See September 2017 Affidavit of Skip Feist, ¶ 3, attached hereto as Exhibit H. Further, in 2016 only 2.5% of American Biltrite's sales were generated in the State of New York. Id. at ¶ 4. In 2015, only 2.3% of American Biltrite's sales were generated in the State of New York. Id. American Biltrite employs seven out of 662 personnel - or 1.05% of its only (7) workforce - in the State of New York. Id. at 5. ¶ American Biltrite Inc. maintains one - a showroom/office - in only (1) facility jewelry the State of New York out of its37 total facilities. Id. at ¶ 6. LEGAL ARGUMENT The facts in this case clearly establish that personal jurisdiction over this defendant in the State of New York is improper. See Exhibits A-F; Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014). A party may move for judgment dismissing the cause of action on the ground that the court does not have jurisdiction on the person of the defendant. See CPLR 3211(a)(8). "Although a plaintiff is not required to plead and prove personal jurisdiction in the plaintiff." complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff. 3 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 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 plaintiff may establish personal jurisdiction by showing either general jurisdiction, where the defendant's affiliations with the forum state are so continuous and systematic as to home" render them essentially "at in the state or specific jurisdiction, where the defendant has sufficient contacts relating to the underlying controversy with the forum state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). L This Court lacks general jurisdiction over American Biltrite Inc. where neither its state of incorporation nor its principal place of business is in New York, and where its New York presence is even more miniscule than those reviewed by the Supreme Court in Daimler and controlling New York authority. This Court cannot assert general jurisdiction over American Biltrite Inc. under CPLR 301 because it isnot incorporated in New York and New York is not its principal place of business. See CPLR 301; D&R Global Selections Solo v. Bodega Olegario Falcon Pineiro, 18 A.D.3d 486 (1" Dept. 2015). The facts of this case clearly show that New York cannot assert general jurisdiction over American Biltrite Inc. under Daimler or New York cases decided after the Daimler decision. Initially, general jurisdiction was loosely defined as being established when "the [defendant's] affiliations with the [forum s]tate are so continuous and systematic as to render them state." essentially at home in the forum Goodyear Dunlop Tires Operations, S.A., 131 S. Ct. at 2851. However, this definition has since been refined. The United States Supreme Court recently circumscribed the relationships required to subject a corporation to general jurisdiction in Daimler A.G. See Daimler A.G., ,134 134 S. Ct. .74.6. 746. In Daimler, the Court reiterated that general jurisdiction will exist over a corporation where the 4 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 home." corporation is fairly regarded as "at Id. at 760 (quoting Lea Brilmayer et al.,A General Look at General 66 TEX. L. REV. 728 (1988)). It stated that the "paradigm all- Jurisdiction, 721, forums" - home" purpose where a corporate defendant could be regarded "at for general - business." jurisdiction "are a corporation's place of incorporation and principal place of Id. at 749. Citing Daimler A.G., the Appellate Division, First Department has held that where a defendant "neither is incorporated nor has its principal place of business here, New York courts 301." may not exercise jurisdiction over it under CPLR D&R Global Selections, 128 AD3d at 487. See also Magdalena v. Lins, 123 A.D.3d 601 (1st Dept. 2014) (similarly finding no basis for general jurisdiction pursuant to CPLR 301 citing Daimler). Additionally, the Daimler A.G. Court stated that approving general jurisdiction in every State in which a corporation engages in a substantial, continuous, and systematic course of grasping." business would be "unacceptably Id. at 761. However, the Court did review the defendant's contacts with the forum. The Daimler plaintiffs were 22 Argentinian residents, filing suit in a California Federal District for acts occurring in Argentina. Id. at 748, 751-52. Defendant Daimler's subsidiary, Mercedes-Benz USA, had its principal place of business in New Jersey, and was incorporated in Delaware with headquarters in Germany. Id. at 748, 752. Plaintiffs alleged that defendant's contacts with California were that it maintained Mercedes-Benz facilities,a regional office and other vehicle centers in the state. Id. at 752. Additionally, the plaintiffs alleged that Mercedes-Benz was the largest supplier of luxury vehicles in the California market, in particular generating 10% of allU.S. new vehicle sales in California, and generating 2.4% of Daimler worldwide sales there. Id. 5 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 In determining that California did not have general jurisdiction over Daimler, the Supreme Court noted that neither Daimler nor Mercedes was incorporated or had its principal place of business in California. Id. at 761. defendants' Moreover, the Court also reasoned that had the defendants California activities sufficed, "the same global reach would presumably be available in every other state in which [Mercedes'] sizeable." sales are Id. "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 suit.'" conduct will and will not render them liable to Id. at 761-62 (citation omitted). The United States Supreme Court very recently reaffirmed and strengthened its adherence to Daimler A.G. in BNSF Ry. Co. v Tyrrell, 137 S Ct 1549, 198 L Ed 2d 36 [2017]. In BNSF Ry. Co., two different employee plaintiffs sued the railroad company defendant under the Employers' Federal Liability Act. Id. at 1551. While the "injuries allegedly sustained Montana," [occurred] outside of the plaintiffs brought suit in a Montana state court. Id. After the defendant sought to dismiss both actions for want of personal jurisdiction, the Montana state courts, going all the way up to the Montana Supreme Court, held that "Montana courts could business' exercise general personal jurisdiction over [the defendant] because [it] both 'did business . . . within' State." and was 'found the Id. The United States Supreme Court, however, held that this was against the Fourteenth Amendment's Due Process Clause, explaining that Daimler A.G. applied to claims arising from Employers' the Federal Employers Liability Act. Id. at 1558. It noted that the defendant is not incorporated nor is itsprincipal place of business in Montana, thus general personal jurisdiction over the same business" is improper. Id. at 1559. It dismissed the arguments that "doing or being "found 6 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 within" Montana were enough to establish general personal jurisdiction, noting that these notions were contrary to Daimler A.G. See id. Despite the fact that BNSF had over 2,000 miles of railroad track and more than 2,000 employees in Montana, the Court found that BNSF was not home' State." "so heavily engaged in activity in Montana 'as to render [it] essentially at in that Id. citing Daimler, 134 S.Ct., at 761. American Biltrite Inc. has provided the affidavit of Vice President - Here, Skip Feist, Finance and Chief Financial Officer for American Biltrite, Inc. See Exhibit H. In it, Mr. Feist declares that American Biltrite Inc. has been incorporated in the State of Delaware since 1954 and maintains itsprincipal place of business in the State of Massachusetts. Id. at¶ 3. In addition, for the past two business years, only 2.3% to 2.5% of American Biltrite's sales were generated in the State of New York. Id. at ¶ 4. And American Biltrite only employs seven out of 662 personnel - or 1.05% of itsworkforce - in the State of New York. Id. at 5. (7) ¶ American Biltrite Inc. maintains one - a Finally, only (1) facility jewelry showroom/office - in the State of New York out of its 37 total facilities. Id at 6. ¶ It is clear, then, under Daimler and BNSF and other New York cases following it, that general jurisdiction over American Biltrite Inc. is improper. See Exhibit H. American Biltrite is home" not and cannot be considered "at in New York because it is neither incorporated in New York, nor does ithave itsprincipal place of business in New York. Id. Moreover, there is nothing to suggest that the facts of this case present some kind of case" "exceptional so as to warrant exercising general jurisdiction over this defendant. In fact, American Biltrite's New York contacts are far less than the forum contacts of the Daimler and BNSF defendants, where the United States Supreme Court refused to find general jurisdiction. See Exhibit H; BNSF Ry. Co., 137 S Ct 1549; and Daimler, 134 S. Ct. at 751-52. Asserting general 7 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 "grasping," "exorbitant" jurisdiction over American Biltrite Inc. here would likewise be a exercise, and has been specifically denounced by the United States Supreme Court. Daimler, 134 S. Ct. at at 761. This Court should therefore dismiss this case as to American Biltrite Inc. for lack of personal jurisdiction. H. This Court lacks specific jurisdiction over American Biltrite Inc. under New York's Long-Arm Statute, CPLR 302 To establish specific jurisdiction, the suit must "arise out of or relate to the defendant's forum." contacts with the Daimler A.G., 134 S. Ct. at 748-49 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)). Plaintiff does not cite to any particular provisions of New York's long-arm statute in their Amended Complaint; nor do they assert any basis for this Court to exercise jurisdiction. See Exhibits A & B. Additionally, a finding of a lack of Specific Jurisdiction here is consistent with recent United States Supreme Court precedent. See Bristol-Myers Squibb Co. v Superior Ct. of Cahfornia, San Francisco County, 137 S Ct 1773, 198 L Ed 2d 395 [2017]. Moreover, this Court York' recently found that American Biltrite Inc. is not subject to specific jurisdiction under New York's long-arm statute. See Trumbull v. Adience, Inc.,,et et al., Index No. 190084/2016 (Sup. Ct. N.Y. County, March 6, 2017) (Moulton, J.),attached hereto as Exhibit I. A. This Court Does Not Have Jurisdiction Under CPLR 302(a)(1) In New York, CPLR 302(a)(1) authorizes a court to exercise jurisdiction over foreign defendants for tort arising in the state arising from a defendant's transaction of business in this State. Pichardo, 122 A.D.3d at 701. "In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court must determine (1) whether the defendant transacted business in New York and, ifso, (2) whether transaction." the cause of action asserted arose from that Id. The requirement of establishing a 8 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 nexus between the he business a non-domiciliary transacts in New York and the cause action sued suit..." ." upon is "[e]ssential to the maintenance of a suit . . McGowan v. Smith, 52 N.Y.2d, 268, 272 [1981]. The McGowan Court continued that "it is this basic requirement that differentiates the long-arm authority of New York courts under CPLR 302(subd [a],par 1) from the more traditional 301..." ." authority of the New York courts under CPRL 301 . . Id. The Court of Appeals interpreted the second prong of the inquiry to require that, "in light of nexus,' relationship' all the circumstances, there must be an 'articulable or 'substantial between a defendant's in-state activity and the claim asserted. Id. at 272; Johnson v. Ward 4 N.Y.3d 516, 519 (2005); Kreutter v. McFadden Oil Corp.,,7171 .N.Y.2d N.Y.2d 460, 467 (1988); and Licci v. Lebanese Can. Bank, SAL, 20 N.Y.3d 327, 339 (Ct. App. 2012). "[A]t a minimum [there must be] a relatedness between the transaction and the legal claim former" such that the latterisnot completely unmoored from the See Licci, 20 N.Y.3d at 339. In McGowan, the infant plaintiff, a New York resident, was injured in Canada by an defective fondue pot purchased in New York but shipped from Japan a Japanese third- allegedly by party defendant from Japan. McGowan, 52 N.Y.2d at 270. The record indicted that the nondomiciliary Japanese third party defendant's representatives made several trips to New York to perform market research and assessing what type of products might be saleable in New York. Id. at 272. While the Court recognized that the visits were purposeful, and that the Japanese third-party business" defendant "transacted in New York, the business was not sufficiently related to the cause of action to support jurisdiction. Id. at 270 and 273. In this case, the relationship between the cause of action asserted in the Complaint and "insubstantial" American Biltrite's activities in New York are too to warrant personal jurisdiction over it. See Pichardo, 122 A.D.3d at 701. 9 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 As stated above, Plaintiff's claims against American Biltrite Inc. for alleged injuries to Robert Godfrey are based on their allegations that Mr. Godfrey worked around Amtico in Haverhill, Massachusetts. See Exhibits A-G. According to Mr. Godfrey's own testimony, the vast majority of his alleged asbestos exposure and ALL of his alleged exposure to Amtico tilecame from working at Bradford College in Haverhill, Massachusetts. See Exhibits D-G. Like in McGowan, this case involves a plaintiff injured outside of the state of New York. Plaintiff's cause of action stems from American Biltrite's alleged breach of its duty of care in including asbestos in tile, which allegedly caused injury to Robert Godfrey while at a Haverhill, Massachusetts premises. See Exhibits A-G. As such, the alleged duty owed by American Biltrite Inc. to Robert Godfrey, the alleged breach of that duty, and Mr. Godfrey's alleged injury all arose or occurred out of this state. See Pichardo, 122 A.D.3d at 701; McGowan, 52 N.Y.2d at 273. Plaintiffs have clearly failed to demonstrate a substantial relationship or an articulable nexus between the American Biltrite's activities in New York and the causes of action asserted in the Complaint. Accordingly, this Court is not authorized to exercise specific personal jurisdiction over the American Biltritepursuant to CPLR 302(a)(1). B. American Biltrite Inc. is Not Subject to Personal Jurisdiction Under CPLR § 302(a)(2). . Under CPLR "a court exercise personal jurisdiction over non- § 302(a)(2), may any ...." domiciliary . .. who in person or through an agent . .. commits a tortious act within the state .... CPLR § 302(a)(2). CPLR § 302(a)(2) has been narrowly construed to apply only when the defendant's wrongful conduct is performed in New York. (Longines-Wittnauer Watch Co. v Barnes & Reinecke, Inc., 15 NY2d 443, 465 (1965)); see also Overseas Media, Inc. v Skvortsov, 407 F.Supp.2d 563, 572 (SDNY 2006) (observing that this provision requires allegations that "defendant York" or his agents committed a tortious act while physically present in New [alterations and I 10 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 internal quotations omitted]). In this case, as previously discussed, plaintiff's allegation is that he was exposed to American Biltrite Inc.'s floor tile outside of the State. Thus, jurisdiction does not lie under this section. C. American Biltrite Inc. is Not Subject to Personal Jurisdiction Under CPLR 302(a)(3). Plaintiff cannot show that American Biltrite Inc. is subject to personal jurisdiction in this Court based on Section 302(a)(3). This section provides for personal jurisdiction over anyone who state," "commits a tortious act without the state causing injury to person or property within the if one of two enumerated additional requirements are met. CPLR § 302(a)(3). However, personal jurisdiction cannot be exercised over American Biltrite Inc. pursuant to this section of the long-arm statute because plaintiff's alleged exposure to American Biltrite Inc.'s product occurred outside the State of New York. "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 (1" occurred in Massachusetts). See also Stern v. Four Points by Sheraton 133 A.D.3d 514, 514-15 Dept. 2015). As plaintiff's alleged exposure occurred in Massachusetts, CPLR 302(a)(3) does not confer jurisdiction of this Court over American BiltriteInc. D. A Finding of a Lack of Specific Jurisdiction is Consistent with Recent United States Supreme Court Precedent As shown above, specific jurisdiction over this defendant is improper. This conclusion is supported by recent United States Supreme Court precedent. 11 11 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 The United States Supreme Court addressed the issue of specific jurisdiction in Bristol- Myers Squibb Co. v. Superior Ct. of Cahfornia, San Francisco County, 137 S Ct 1773, 198 L Ed 2d 395 [2017]. In Bristol-Meyers Squibb Co., a group of plaintiffs sued the pharmaceutical company defendant for alleged damages from taking a drug. Id at 1775. Even though the plaintiffs were not residents of California, they sued the defendant in California state court. Id. The defendant sought to quash service of summons for want of personal jurisdiction, arguing that both specific and general jurisdiction were improper. Id. The defendant argued that it "is incorporated in Delaware[,] headquartered in New York,, and . .. maintains substantial operations in both New Jersey," York and New while the plaintiffs contended that the defendant sold the drug at issue in California. Id. The State Court of Appeal concluded that California courts lacked general jurisdiction, but found that specific jurisdiction was present. Id. The State Supreme Court affirmed this approach' decision applying "a 'sliding scale to specific jurisdiction, concluding that [the ranging' defendant's] 'wide contacts with [California] were enough to support a finding of jurisdiction." specific Id. at 1775-76. However, the United States Supreme Court held that California's "sliding scale approach" jurisdiction," to specific jurisdictions "resembles a loose and spurious form of general precedents." and was "difficult to square with this Court's Id. It stated that the finding of specific plaintiffs' jurisdiction lacked identification of "any adequate link between [California] and the claims," and "[t]he mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug at issue] in California does not allow [it] to assert specific jurisdiction over the nonresidents' claims." Id. I 12 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 Hereto, there is no adequate link, or any link for that matter, between Mr. Godfrey's claims against American Biltrite Inc. and the State of New York. E. This Court has recently held that American Biltrite Inc. is not subject to specific jurisdiction under New York's ion -arm statute. Importantly, this Court has previously found in the Trumbull matter, that American Biltrite Inc. is not subject to specific jurisdiction under New York's long-arm statute. See Exhibit I at 9. In that case, the plaintiff had only come into contact with Amtico in the state of Missouri. See id. Justice Moulton considered CPLR 302(a)(1), 302(a)(2), and 302(a)(3), to find that specific jurisdiction was lacking over American Biltrite Inc. and granted American Biltrite Inc.'s motion for summary judgment in that case. See id. The facts of Trumbull are quite similar here, except instead of Missouri, all of Mr. Godfrey's alleged work with or around Amtico tiles occurred in Massachusetts. Plaintiffs' Moreover, your Honor recently denied motion to reargue and renew in the Plaintiffs' Trumbull matter finding that contention that American Biltrite purchased the asbestos for itstiles from Union Carbide Corporation, whose principal place of business was in New York during the period of plaintiff's exposure to American Biltrite's tiles, without more, was not grounds for the Court to exercise specific jurisdiction. See Trumbull v. audience, Inc., et al.,Index No. 190084/2016 (Sup. Ct. N.Y. County, January 23, 2018) (Billings, J.), attached hereto as Exhibit J. CONCLUSION WHEREFORE Defendant, AMERICAN BILTRITE INC., respectfully prays that the Court enter an Order dismissing this action for lack of personal jurisdiction pursuant to CPLR 3211(a)(8), and for such other relief as deemed just and proper. I 13 of 14 FILED: NEW YORK COUNTY CLERK 02/05/2018 02:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 02/05/2018 Dated: February 5, 2018 Respectfully submitted, New York, New York KUROWSKI SHULTZ LLC By: /s/ Justin A. Reinhardt David J. Fisher, Esq. Justin A. Reinhardt, Esq. Syed K. Rizvi, Esq. 180 Maiden Lane, Suite 901 New York, New York 10038 P: (9