On September 01, 2015 a
Motion-Secondary
was filed
involving a dispute between
Shirley Godfrey,
Shirley Jo Godfrey As Executrix Of The Estate Of Robert C. Godfrey,
and
Algoma Hardwoods, Inc.,
American Biltrite, Inc., Individually And As Successor To Amtico Floors,
A.O. Smith Water Products,
Basic, Inc.,
Bird Incorporated F K A Bird & Son, Inc.,
Borg Warner Corporation, By Its Successor In Interest, Borg Warner Morse Tec Inc.,
Burnham Corporation,
Carrier Corporation,
Cbs Corporation, A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Cleaver Brooks Company F K A Aqua Chem, Inc.,
Conwed Corporation F K A Wood Conversion Company,
Crane Co.,
Crown Boiler Co.,
Dap, Inc., K N A La Mirada Products Co., Inc.,
Domco Products Texas, Inc., D B A Tarkett Inc., Individually And As Successor To Azrock Industries, Inc.,
Ecr International, Inc., Individually And As Successor To Dunkirk, Dunkirk Boilers, And Utica Boilers,
General Electric Company,
Georgia-Pacific Corporation, Individually And As Successor To Bestwall Gypsum Company,
Homasote Company, Inc.,
Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor In Interest To The Bendix Corp.,
International Paper Company, F K A Hammermill Paper Co. And Individually And As Successor To Us Plywood,
Kaiser Gypsum Company, Inc.,
Lehrer Mcgovern Lehrer Llc,
Mannington Mills, Inc.,
Metropolitan Life Insurance Company,
New Yorker Boiler Company, Inc.,
Peerless Industries, Inc.,
Pfizer, Inc.,
Rheem Manufacturing Corp.,
Strober Organization, Inc.,
Turner Construction Company,
Union Carbide Corporation,
Weil Mclain, A Division Of Marley Wylain Company,
Weyerhauser Corporation,
Whiting Turner,
York International Corporation, Individually And As Successor To Frick Company,
for Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 05/14/2019 01:07 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 437 RECEIVED NYSCEF: 05/14/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------X NYCAL
SHIRLEY JO GODFREY, Individually and as Executrix I.A.S. Part 13
for the Estate of ROBERT C. GODFREY, (Mendez, M.)
Plaintiff, Index No.: 190280/2015
-against- April 2016 In-Extremis
Belluck & Fox, LLP
A.O. SMITH WATER PRODUCTS, et al.,
REPLY AFFIRMATION IN
Defendants. FURTHER SUPPORT OF DAP,
INC.’S MOTION TO DISMISS
AND MOTION FOR SUMMARY
------------------------------------------------------------------X JUDGMENT
ALYSA B. KOLOMS., an attorney duly admitted to practice law before the courts of the
State of New York, affirms the following on penalty of perjury:
1. I am a Partner with McGivney, Kluger & Cook P.C., attorneys for Defendant
DAP, INC. K/N/A LA MIRADA PRODUCT CO., INC. (hereinafter “DAP”) in the above-
captioned matter and, as such, I have personal knowledge of all the facts contained in this
affirmation.
2. This reply affirmation is submitted in further support of DAP’s motion for an
order, dismissing all claims as DAP is not subject to personal jurisdiction in this matter.
3. Plaintiffs’ opposition to the instant motion is rife with procedural red herrings and
misrepresentations, none of which can serve to defeat DAP’s application. Indeed, plaintiffs
concede that to the extent the Court is not convinced by plaintiffs’ creative, albeit entirely
misplaced arguments, they “will not contest that branch of DAP’s motion to dismiss for lack of
personal jurisdiction.” Plaintiffs’ Opposition at ¶ 6. This case presents the classic template for a
dismissal based on personal jurisdiction—exposure outside of the State of New York, and a
company with its principal place of business and incorporation in Maryland and Ohio,
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respectively. Absolutely nothing raised in plaintiffs’ opposition can serve to defeat the simple
fact that DAP is not amenable to either general or specific personal jurisdiction in this matter.
ARGUMENT
4. Plaintiffs’ brief opposition rests upon two simple, incorrect, arguments: (1)
because DAP’s filed its motion to dismiss for lack of personal jurisdiction post-answer, it is
deemed a summary judgment motion, not a motion to dismiss; and because (2) summary
judgment motions must be filed within forty-five days after the filing of the Note of Issue,
DAP’s motion is untimely. Both prongs of plaintiffs’ only argument in their opposition are clear
misreadings of the applicable law and court rules in this matter. As these contentions are easily
dispelled of, and plaintiffs readily concede that they do not contest the remainder of DAP’s
motion, the instant application must be granted.
5. The first prong of plaintiff’s argument, that DAP’s motion to dismiss is untimely,
and therefore converts into a summary judgment motion, is a clear misinterpretation of the law.
CPLR § 3211(e) does allow parties to file pre-answer motions to dismiss: “at any time before
service of the responsive pleading is required, a party may move” to dismiss for lack of personal
jurisdiction. With the operative use of the word “may” instead of “must,” which is used in
abundance throughout the CPLR, the legislative intent is clear: pre-answer motions to dismiss
are permissive, not compulsory. This, of course, makes sense—if on the face of the complaint,
personal jurisdiction is lacking, a party may move to dismiss the case prior to the receipt of any
discovery. However, under most circumstances, and nearly universally in NYCAL, the facts
giving rise to jurisdiction are not apparent until months, perhaps years, after the filing of the
initial complaint.
6. Motions to dismiss for lack of personal jurisdiction are consistently made post-
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answer in NYCAL—as plaintiffs cite Fourth Department and Suffolk County case law, none of
which are binding upon this Court, it is clear that plaintiffs have little authority for their
argument. In fact, plaintiffs’ argument is contrary to the multitude of NYCAL case law where
this Court has granted several post-answer motions to dismiss for lack of personal jurisdiction—
some of which involved the Belluck & Fox law firm. See e.g., Johnson v. A.O. Smith Water
Products, (Sup. Ct. N.Y. Cty. Index No. 190454/2012); Aston v. Algoma Hardwoods, Inc, (Sup.
Ct. N.Y. Cty. Index No. 160588/2015); Trumbull v. Adience, Inc. (Sup. Ct. N.Y. Cty. Index No.
190084-2016). A true and accurate copy of this Court’s grant of post-answer personal
jurisdiction motions is annexed hereto as Exhibit A.
7. Given CPLR § 3211(e)’s use of the word “may” and not “must,” as itconcerns
pre-answer motions to dismiss, and the fact that DAP appropriately preserved its personal
jurisdiction argument by asserting same in its answer as required by statute, DAP’s motion to
dismiss, as the dozens that have come before it in NYCAL, is entirely proper.
8. The second prong of plaintiffs’ argument relies upon the validation of the first
prong—that DAP’s motion, which translated into a motion for summary judgment, is time barred
per the Court’s rules. Plaintiffs’ theory that the motion to dismiss morphed into a summary
judgment is bereft of any on-point authority, and actually runs afoul of this Court’s well-
established precedent, per the above. Nonetheless, even if the Court were to consider the instant
application a motion for summary judgment, the current Court rules do not apply, rendering
DAP’s application completely timely within the language of the CMO.
9. While this Court’s rules do mandate that summary judgment motions are to be
filed within forty-five days of the filing of the Note of Issue, the rules, more importantly, indicate
that same took effect “June 25, 2018.” A true and accurate copy of this Court’s part rules is
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annexed hereto as Exhibit B. Here, however, plaintiffs’ Note of Issue was filed over two years
prior to the institution of these rules, on March 26, 2016. A true and accurate copy of plaintiffs’
Note of Issue is annexed hereto as Exhibit C. This Court’s rules cannot have any retroactive
application, as same would curtail hundreds of defendants’ ability to move for summary
judgment in thousands of cases, where Notes of Issue were filed years before this Court’s
mandate—an effect this Court surely did not contemplate with the promulgation of its rules, and
a gross misreading by plaintiffs. Instead, as the filing of the Note of Issue in this case pre-dated
this Court’s local rules by over two years, to the extent this Court considers DAP’s application a
summary judgment motion, it is the CMO’s timeline for summary judgment motions that
governs. That is, CMO § XXI mandates that all summary judgment motions must be made at
least thirty days prior to the case’s trial date. Here, DAP filed its motion on April 22, 2019—
more than thirty days ahead of the May 28, 2019 trial date, and compliant with the applicable
CMO provision. Accordingly, regardless of this Court’s characterization of the motion, same
was certainly timely—dispelling all of plaintiffs’ arguments on opposition.
10. Although plaintiffs implored the Court to not consider the second branch of
DAP’s motion, regarding causation, they notably failed to mount any sort of opposition to
same—waiving the opportunity to do so. Accordingly, the Court should grant DAP’s motion on
causation grounds to the extent it disagrees with DAP’s personal jurisdiction arguments.
CONCLUSION
11. Plaintiffs’ arguments concerning the timeliness of DAP’s motion are unavailing—
plaintiffs’ have already willingly conceded that to the extent these arguments fail, which they
most certainly should, plaintiffs do not contest a dismissal based on lack of personal jurisdiction.
12. As such, it is respectfully submitted that this Court grant the within motion in full,
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dis-
ssMg all claims and cross-claims, together with any other further relief
just and proper.
13. No prior applications for the relief requested on the grounds
been submitted.
Yours etc.,
McGIVNEY, KLUGER & COOK,
Attorneys for Defendant
DAP, INC.
By:
Alysa B. Koloms, Esq.
23"l
80 Broad Street, Floor
New York, New York 10004
(212) 509-3456
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Preview
FILED: NEW YORK COUNTY CLERK 05/14/2019 01:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 437 RECEIVED NYSCEF: 05/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X NYCAL SHIRLEY JO GODFREY, Individually and as Executrix I.A.S. Part 13 for the Estate of ROBERT C. GODFREY, (Mendez, M.) Plaintiff, Index No.: 190280/2015 -against- April 2016 In-Extremis Belluck & Fox, LLP A.O. SMITH WATER PRODUCTS, et al., REPLY AFFIRMATION IN Defendants. FURTHER SUPPORT OF DAP, INC.’S MOTION TO DISMISS AND MOTION FOR SUMMARY ------------------------------------------------------------------X JUDGMENT ALYSA B. KOLOMS., an attorney duly admitted to practice law before the courts of the State of New York, affirms the following on penalty of perjury: 1. I am a Partner with McGivney, Kluger & Cook P.C., attorneys for Defendant DAP, INC. K/N/A LA MIRADA PRODUCT CO., INC. (hereinafter “DAP”) in the above- captioned matter and, as such, I have personal knowledge of all the facts contained in this affirmation. 2. This reply affirmation is submitted in further support of DAP’s motion for an order, dismissing all claims as DAP is not subject to personal jurisdiction in this matter. 3. Plaintiffs’ opposition to the instant motion is rife with procedural red herrings and misrepresentations, none of which can serve to defeat DAP’s application. Indeed, plaintiffs concede that to the extent the Court is not convinced by plaintiffs’ creative, albeit entirely misplaced arguments, they “will not contest that branch of DAP’s motion to dismiss for lack of personal jurisdiction.” Plaintiffs’ Opposition at ¶ 6. This case presents the classic template for a dismissal based on personal jurisdiction—exposure outside of the State of New York, and a company with its principal place of business and incorporation in Maryland and Ohio, {N0863417-1}1 1 of 5 FILED: NEW YORK COUNTY CLERK 05/14/2019 01:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 437 RECEIVED NYSCEF: 05/14/2019 respectively. Absolutely nothing raised in plaintiffs’ opposition can serve to defeat the simple fact that DAP is not amenable to either general or specific personal jurisdiction in this matter. ARGUMENT 4. Plaintiffs’ brief opposition rests upon two simple, incorrect, arguments: (1) because DAP’s filed its motion to dismiss for lack of personal jurisdiction post-answer, it is deemed a summary judgment motion, not a motion to dismiss; and because (2) summary judgment motions must be filed within forty-five days after the filing of the Note of Issue, DAP’s motion is untimely. Both prongs of plaintiffs’ only argument in their opposition are clear misreadings of the applicable law and court rules in this matter. As these contentions are easily dispelled of, and plaintiffs readily concede that they do not contest the remainder of DAP’s motion, the instant application must be granted. 5. The first prong of plaintiff’s argument, that DAP’s motion to dismiss is untimely, and therefore converts into a summary judgment motion, is a clear misinterpretation of the law. CPLR § 3211(e) does allow parties to file pre-answer motions to dismiss: “at any time before service of the responsive pleading is required, a party may move” to dismiss for lack of personal jurisdiction. With the operative use of the word “may” instead of “must,” which is used in abundance throughout the CPLR, the legislative intent is clear: pre-answer motions to dismiss are permissive, not compulsory. This, of course, makes sense—if on the face of the complaint, personal jurisdiction is lacking, a party may move to dismiss the case prior to the receipt of any discovery. However, under most circumstances, and nearly universally in NYCAL, the facts giving rise to jurisdiction are not apparent until months, perhaps years, after the filing of the initial complaint. 6. Motions to dismiss for lack of personal jurisdiction are consistently made post- {N0863417-1}2 2 of 5 FILED: NEW YORK COUNTY CLERK 05/14/2019 01:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 437 RECEIVED NYSCEF: 05/14/2019 answer in NYCAL—as plaintiffs cite Fourth Department and Suffolk County case law, none of which are binding upon this Court, it is clear that plaintiffs have little authority for their argument. In fact, plaintiffs’ argument is contrary to the multitude of NYCAL case law where this Court has granted several post-answer motions to dismiss for lack of personal jurisdiction— some of which involved the Belluck & Fox law firm. See e.g., Johnson v. A.O. Smith Water Products, (Sup. Ct. N.Y. Cty. Index No. 190454/2012); Aston v. Algoma Hardwoods, Inc, (Sup. Ct. N.Y. Cty. Index No. 160588/2015); Trumbull v. Adience, Inc. (Sup. Ct. N.Y. Cty. Index No. 190084-2016). A true and accurate copy of this Court’s grant of post-answer personal jurisdiction motions is annexed hereto as Exhibit A. 7. Given CPLR § 3211(e)’s use of the word “may” and not “must,” as itconcerns pre-answer motions to dismiss, and the fact that DAP appropriately preserved its personal jurisdiction argument by asserting same in its answer as required by statute, DAP’s motion to dismiss, as the dozens that have come before it in NYCAL, is entirely proper. 8. The second prong of plaintiffs’ argument relies upon the validation of the first prong—that DAP’s motion, which translated into a motion for summary judgment, is time barred per the Court’s rules. Plaintiffs’ theory that the motion to dismiss morphed into a summary judgment is bereft of any on-point authority, and actually runs afoul of this Court’s well- established precedent, per the above. Nonetheless, even if the Court were to consider the instant application a motion for summary judgment, the current Court rules do not apply, rendering DAP’s application completely timely within the language of the CMO. 9. While this Court’s rules do mandate that summary judgment motions are to be filed within forty-five days of the filing of the Note of Issue, the rules, more importantly, indicate that same took effect “June 25, 2018.” A true and accurate copy of this Court’s part rules is {N0863417-1}3 3 of 5 FILED: NEW YORK COUNTY CLERK 05/14/2019 01:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 437 RECEIVED NYSCEF: 05/14/2019 annexed hereto as Exhibit B. Here, however, plaintiffs’ Note of Issue was filed over two years prior to the institution of these rules, on March 26, 2016. A true and accurate copy of plaintiffs’ Note of Issue is annexed hereto as Exhibit C. This Court’s rules cannot have any retroactive application, as same would curtail hundreds of defendants’ ability to move for summary judgment in thousands of cases, where Notes of Issue were filed years before this Court’s mandate—an effect this Court surely did not contemplate with the promulgation of its rules, and a gross misreading by plaintiffs. Instead, as the filing of the Note of Issue in this case pre-dated this Court’s local rules by over two years, to the extent this Court considers DAP’s application a summary judgment motion, it is the CMO’s timeline for summary judgment motions that governs. That is, CMO § XXI mandates that all summary judgment motions must be made at least thirty days prior to the case’s trial date. Here, DAP filed its motion on April 22, 2019— more than thirty days ahead of the May 28, 2019 trial date, and compliant with the applicable CMO provision. Accordingly, regardless of this Court’s characterization of the motion, same was certainly timely—dispelling all of plaintiffs’ arguments on opposition. 10. Although plaintiffs implored the Court to not consider the second branch of DAP’s motion, regarding causation, they notably failed to mount any sort of opposition to same—waiving the opportunity to do so. Accordingly, the Court should grant DAP’s motion on causation grounds to the extent it disagrees with DAP’s personal jurisdiction arguments. CONCLUSION 11. Plaintiffs’ arguments concerning the timeliness of DAP’s motion are unavailing— plaintiffs’ have already willingly conceded that to the extent these arguments fail, which they most certainly should, plaintiffs do not contest a dismissal based on lack of personal jurisdiction. 12. As such, it is respectfully submitted that this Court grant the within motion in full, {N0863417-1}4 4 of 5 FILED: NEW YORK COUNTY CLERK 05/14/2019 01:07 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 437 RECEIVED NYSCEF: 05/14/2019 dis- ssMg all claims and cross-claims, together with any other further relief just and proper. 13. No prior applications for the relief requested on the grounds been submitted. Yours etc., McGIVNEY, KLUGER & COOK, Attorneys for Defendant DAP, INC. By: Alysa B. Koloms, Esq. 23"l 80 Broad Street, Floor New York, New York 10004 (212) 509-3456 5 of 5