Preview
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
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. # 03
deceased,
Plaintiffs,
AFFIRMATION IN
OPPOSITION TO DEFENDANT
v.
CERTAINTEED
CORPORATION’S MOTION TO
A.O. SMITH WATER PRODUCTS, et al.
DISMISS FOR 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
CERTAINTEED CORPORATION (hereinafter Defendant or Certainteed), 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 Certainteed 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 (see Exhibit 5
annexed to the Affirmation of Mark Freisz, Esq. on behalf of Defendant).1 There is no dispute
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. A de bene esse videotaped deposition
was also conducted, but is omitted as duplicative of the discovery deposition testimony for the purposes of this
motion.
1 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
that Mr. Godfrey’s exposure to asbestos from Certainteed 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 Certainteed under CPLR 302(a)(1) because Mr. Godfrey’s exposure to asbestos
from Certainteed siding arose from Certainteed’s transaction with National Gypsum Company,
in Buffalo, New York, to purchase for resale asbestos siding manufactured by National Gypsum
that was rebranded as a Certainteed product. Specific jurisdiction also exists under CPLR
302(a)(2) because Defendant conspired in New York with other asbestos companies to conceal
the hazards of asbestos cement products from the public, thereby committing “tortious conduct”
in New York related to the claims at issue. Furthermore, Certainteed 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 Certainteed’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 Certainteed Asbestos Cement 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 5 to Friesz 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 5 to Friesz Aff at 27-31).
2
Plaintiff asserts this basis for the purposes of preservation, as she is aware this Court has previously
rejected this argument.
2 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
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 5
to Friesz Aff at 33-38). His duties included cleaning up after the maintenance and repairs
performed in all the buildings, inside and out (Exh 5 to Friesz Aff at 34, 43).
7. He stated that his duties included removing and replacing siding on Academy Hall
(Exh 5 to Friesz Aff at 59, 63). The grounds crew “consistently used a product called
CertainTeed” siding, and it was labeled as “asbestos on the box” (Exh 5 to Friesz Aff at 65, 217-
19). He stated that he personally cut and nailed the CertainTeed asbestos siding to the building
(Exh 5 to Friesz Aff at 64-65, 218-19). He was also exposed to asbestos from CertainTeed siding
work on two dormitory buildings, and approximately eight to ten school-owned houses located
off campus (Exh 5 to Friesz Aff at 78-82, 87-88, 215-17). This work exposed him to the asbestos
dust generated from the siding (Exh 5 to Friesz Aff at 226).
B. Certainteed’s Contract With National Gypsum In Buffalo, New York To Purchase
And Resell – As A Rebranded Product – Asbestos Cement Siding During Mr.
Godfrey’s Exposure Period
8. Notably, there is no dispute as to the facts regarding Certainteed’s sale of asbestos
siding in the 1970s.
9. Certainteed admits that between the 1950s and the mid-1970s, it purchased
asbestos cement siding from National Gypsum and rebranded and resold this product as
Certainteed siding (see Exh 6 to Freisz Aff at ¶ 16). In fact, Defendant actually proffered in its
moving papers the contracts it entered into with National Gypsum (see Exh 6 to Freisz Aff at
Exhs D & E thereto). These contracts, dated 1969 and 1972, with National Gypsum were
3 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
negotiated and/or entered into in Buffalo, New York, which was National Gypsum’s “executive
offices” (Id.).
10. Indeed, Certainteed’s interrogatory responses confirm that it did, and does,
business in New York, and that National Gypsum was the only manufacturer of asbestos siding
to which Certainteed purchased for resale between the 1950s and the 1970s (see Exhibit A –
Interrogatory Responses, at 4 (Answer to Question 5), and 44 (Attachment I)). Its corporate
representative, Charles Blakinger, has testified that for all sales of asbestos cement siding on the
East Coast between the 1950s and 1970s – which would include Mr. Godfrey’s exposure in
Massachusetts – all of Certainteed’s asbestos cement siding was manufactured by National
Gypsum (Exhibit B at 89-90).
11. Prior interrogatory responses from National Gypsum similarly confirm that
National Gypsum was headquartered in Buffalo, New York until 1976, when it moved to Texas
(see Exhibit C – Interrogatory Responses, at Exhibit “1”).
C. Certainteed’s Participation In A Conspiracy In New York
12. In 1964, Certainteed attended a conference in New York City on the Biological
Effects of Asbestos (see Exhibit D – Nov. 10, 1964 memorandum). Certainteed had a discussion
at that New York conference with representatives of Turner Brothers Asbestos Company where
it was noted, inter alia, “that U.S. Industry, in general, does not want to accept the fact that
asbestos is hazardous and they will accept any doctor’s view if he intimates that it is not
hazardous” (Id. at 1). Extensive scientific and medical evidence was presented about the hazards
of asbestos exposure at that conference (Id. at 2). But in response, Certainteed’s industrial
hygienist only suggested that certain action be taken to protect workers in Certainteed’s own
4 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
plant (Id. at 3; Exh B at 110-12). Defendant’s corporate representative, Mr. Blakinger,
authenticated this memorandum (Exh B at 94), and he conceded that Certainteed took no action
in response to this meeting in New York to study whether its products, including asbestos siding,
were hazardous to consumers, or to warn them of such dangers (Exh B at 108-09).
13. The same month, another memorandum was written that evinced the conspiracy at
issue (see Exhibit E – Nov. 3, 1964 memorandum). Therein, it was asserted that:
It is quite apparent that the whole affair was motivated and executed in the
interest of the Asbestos Workers of America. The New York Academy of Science
and many of the speakers, I feel, did not realize how they were being used until
the session was underway. While it is an indictment of the dusty conditions of the
asbestos insulator, and perhaps justifiably so, it also indicts the entire asbestos
industry from the mine to the ultimate end product which contains asbestos.
(Id. at 3). The Certainteed author called on the “asbestos industry” to:
take some positive actions to clarify the truths and to correct any untruths that
may have been presented. A dispassionate appraisal of the contents of each paper
here presented must be made and an evaluation and a differentiation be made
between the fact and fiction. …
I…would imagine that some organized effort in this regard by that segment of the
industry will be forthcoming. Certain-teed must, of course, make every effort to
provide maximum safety and minimum dust count conditions in the
manufacturing operations; however, it seems to me that the effects of any adverse
publicity in this regard will be felt more potently in our sales effort….
To combat this sort of publicity, the overall industry will have to combine forces
and establish a case history record file that will disprove such claims. It seems to
me that it is beyond the financial and personnel capabilities of any one company
to tackle such a problem alone. We should rely on the work that has been
established and proven thus far and cooperate with allied industrial interests along
those lines that are legally, logically, and morally open to us.
(Id. at 3-4).
14. In February 1969, however, Certainteed was present at a meeting of the Health &
Safety Council of the Asbestos Cement Products Association in New York (see Exhibit F – Mar.
3, 1969 memorandum and annexed minutes). This document is authenticated by Certainteed’s
5 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
corporate representative, Mr. Blakinger (see Exhibit G at 164-76). At the meeting, the Council
discussed the safety procedures implemented in Great Britain to prevent asbestos exposure from
asbestos cement products (Id. at page 2 of minutes), and noted that the then-current respirators
were insufficient to protect workers from this danger (Id. at page 2-3 of minutes). Certainteed
employee “A.E. Apline” was appointed to a subcommittee to create a booklet on “recommended
health safety practices for handling and applying asbestos cement products” (Id. at page 3 of
minutes), as well as a “plant environmental control subcommittee” (Id. at page 4 of minutes).
The intent in issuing the booklet was to “limit[] the liability of the manufacturers,” and to
advance a “strong public relations effort” to “keep the insurance carriers advised of what the
industry is doing.” (Id. at page 3 of minutes). It was noted by a doctor who spoke at the meeting
that the biological effects of asbestos released from asbestos cement products should be studied
(Id. at page 4 of minutes).
15. Yet Certainteed’s corporate representative, Mr. Blakinger, has admitted that
Certainteed never issued the booklet, never provided any warnings, and never conducted any
studies as indicated by the doctor at the meeting (Exh G at 172-76).
16. Instead, shortly after the 1969 meeting, in December 1970, Certainteed and other
asbestos companies revised and issued a position paper that falsely portrayed the science and
medicine that it was aware has been discussed at the prior New York meetings, asserting that
although asbestos spray-on fireproofing could be banned as hazardous:
the industry is opposed to the complete banning of any useful material, including
asbestos-containing products, on the unproven supposition that its application or
use under the proper operating conditions may present a health hazard to the
general public. It has not been demonstrated that asbestos is a public health
hazard. There is no evidence, scientific or otherwise, that anyone in the general
public has ever contracted any disease from exposure to the minute amounts of
asbestos that may be released into the air at construction or demolition sites.
6 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
(Exhibit H).3
ARGUMENT
17. 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
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).
18. Here, Plaintiff has established a prima facie case of specific jurisdiction on two
separate bases: first, based on Defendant’s “transaction” of purchasing asbestos cement siding
from National Gypsum in Buffalo, New York for the purposes of rebranding that siding as a
Certainteed product in the 1960s and 1970s, which is the product that Mr. Godfrey was exposed
to; and second, based on Defendant’s meetings held in New York where it conspired with other
asbestos companies to conceal the dangers of asbestos from the public.
3
Certification for this document is not currently in Plaintiff’s possession due to the age of the document
and the age of this litigation, but it will be obtained from the Johns-Manville Trust Repository.
7 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
I. CERTAINTEED 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 WITH THE NATIONAL
GYPSUM COMPANY
19. 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 (N.Y. 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 (N.Y.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 (N.Y. 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 (N.Y. 2017).
20. 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.
8 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
21. Here, Certainteed itself has established the necessary contacts with New York, as
it proffered the contracts it entered into with National Gypsum in Buffalo, New York to purchase
and resell – as rebranded Certainteed products – the asbestos cement siding to which Mr.
Godfrey was exposed in the early to mid-1970s. 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)). 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). Since National Gypsum was the only manufacturer of the asbestos
siding that Certainteed sold in the 1970s, i.e., at the time of Mr. Godfrey’s exposure (Exh A at
44; Exh B at 89-90), the siding he was exposed to necessarily derived from Certainteed’s
contracts with National Gypsum in Buffalo, New York, and thus “arose from that transaction.”
CPLR 302(a)(1).
22. 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
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,
9 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
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.
23. 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 was conferred
jurisdiction in the Meyers case.
24. Accordingly, specific jurisdiction is conferred in this case under CPLR 302(a)(1)
based on Certainteed’s transaction of business in New York associated with the exact asbestos
siding to which Mr. Godfrey was exposed.
II. CERTAINTEED IS SUBJECT TO SPECIFIC JURISDICTION UNDER CPLR
302(A)(2) SINCE IT CONSPIRED IN NEW YORK TO CONCEAL THE
HAZARDS OF ASBESTOS CEMENT PRODUCTS FROM THE PUBLIC
25. C.P.L.R. § 302(a)(2) subjects an entity to specific jurisdiction for “commit[ting] a
tortious act within the state.” To establish jurisdiction on the basis of a civil conspiracy, a
plaintiff must (1) make a prima facie showing of a conspiracy, and (2) allege specific facts
warranting the inference that the defendant was a member of the conspiracy. Chrysler Capital
Corp. v. Century Power Corp., 778 F. Supp. 1260, 1266 (S.D.N.Y. 1991).
26. Here, Plaintiff specifically alleges in her complaint that Defendants, Certainteed
among them, conspired and acted in concert to suppress and conceal the hazards of asbestos (see
10 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
Exh 1 to Freisz Aff at ¶¶ 102-117). Plaintiff further alleges, as part of her affirmative Article 16
claims, that Defendant intentionally acted in concert (Id. at ¶ 159).
27. To this end, the evidence on this record demonstrates that such concerted action
and conspiracy took place in New York, when Certainteed attended various conferences and
meetings where it was determined that statements should be made to the public that were
contrary to the science and medicine regarding the hazards of asbestos, while at the same time
Certainteed was taking action to protect its own workers from the hazards of asbestos in its own
plants (see Exhs D – H).
28. This constitutes, or at a minimum raises issues of fact as to, an overt act of civil
conspiracy in New York. See Lawati v. Montague Morgan Slade Ltd., 102 A.D.3d 427, 428 (1st
Dept. 2013) (“The complaint sufficiently alleges jurisdiction over Rigby under CPLR 302(a)(2)
insofar as the complaint pleads that Rigby was a part of a conspiracy involving the commission
of several overt tortious acts in New York”).
29. Therefore, inasmuch as at least part of the tortious acts alleged in the complaint –
conspiracy and acting in concert – were undertaken by Certainteed in New York, specific
jurisdiction is established under CPLR 302(a)(2).
III. CERTAINTEED HAS VOLUNTARILY CONSENTED TO PERSONAL
JURISDICTION IN THIS FORUM
30. Although Plaintiff is aware that this Court has previously rejected this argument,
it is presented for the purposes of preservation. Plaintiffs assert that Certainteed has consented to
jurisdiction by registering to do business here (see Exhibit I – Dept. of State Entity Information).
This issue, however, need to be reached since specific jurisdiction is established prima facie
under both CPLR 302(a)(1) & (2).
11 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
IV. IN THE ALTERNATIVE TO DENIAL, THIS MOTION TO DISMISS SHOULD
BE DENIED WITHOUT PREJUDICE PENDING JURISDICTIONAL
DISCOVERY
31. 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
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).
32. Here, trial has not been scheduled, and in light of the extensive evidence of
Certainteed’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 Certainteed Corporation’s motion to dismiss on
the basis of lack of personal jurisdiction should be denied.
Dated: New York, New York
October 30, 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
12 of 13
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017
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. # 03
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 Certainteed
Corporation’s Motion to Dismiss by using the NYSCEF system on October 30, 2017 to:
Mark Friesz, Esq.
DARGER ERRANTE YAVITZ & BLAU LLP
116 East 27th Street, 12th Floor
New York, New York 10016
212.452.5300
mfriesz@deybllp.com
/s/ Seth A. Dymond
Seth A. Dymond
13 of 13
Preview
FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 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. # 03 deceased, Plaintiffs, AFFIRMATION IN OPPOSITION TO DEFENDANT v. CERTAINTEED CORPORATION’S MOTION TO A.O. SMITH WATER PRODUCTS, et al. DISMISS FOR 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 CERTAINTEED CORPORATION (hereinafter Defendant or Certainteed), 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 Certainteed 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 (see Exhibit 5 annexed to the Affirmation of Mark Freisz, Esq. on behalf of Defendant).1 There is no dispute 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. A de bene esse videotaped deposition was also conducted, but is omitted as duplicative of the discovery deposition testimony for the purposes of this motion. 1 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 that Mr. Godfrey’s exposure to asbestos from Certainteed 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 Certainteed under CPLR 302(a)(1) because Mr. Godfrey’s exposure to asbestos from Certainteed siding arose from Certainteed’s transaction with National Gypsum Company, in Buffalo, New York, to purchase for resale asbestos siding manufactured by National Gypsum that was rebranded as a Certainteed product. Specific jurisdiction also exists under CPLR 302(a)(2) because Defendant conspired in New York with other asbestos companies to conceal the hazards of asbestos cement products from the public, thereby committing “tortious conduct” in New York related to the claims at issue. Furthermore, Certainteed 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 Certainteed’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 Certainteed Asbestos Cement 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 5 to Friesz 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 5 to Friesz Aff at 27-31). 2 Plaintiff asserts this basis for the purposes of preservation, as she is aware this Court has previously rejected this argument. 2 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 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 5 to Friesz Aff at 33-38). His duties included cleaning up after the maintenance and repairs performed in all the buildings, inside and out (Exh 5 to Friesz Aff at 34, 43). 7. He stated that his duties included removing and replacing siding on Academy Hall (Exh 5 to Friesz Aff at 59, 63). The grounds crew “consistently used a product called CertainTeed” siding, and it was labeled as “asbestos on the box” (Exh 5 to Friesz Aff at 65, 217- 19). He stated that he personally cut and nailed the CertainTeed asbestos siding to the building (Exh 5 to Friesz Aff at 64-65, 218-19). He was also exposed to asbestos from CertainTeed siding work on two dormitory buildings, and approximately eight to ten school-owned houses located off campus (Exh 5 to Friesz Aff at 78-82, 87-88, 215-17). This work exposed him to the asbestos dust generated from the siding (Exh 5 to Friesz Aff at 226). B. Certainteed’s Contract With National Gypsum In Buffalo, New York To Purchase And Resell – As A Rebranded Product – Asbestos Cement Siding During Mr. Godfrey’s Exposure Period 8. Notably, there is no dispute as to the facts regarding Certainteed’s sale of asbestos siding in the 1970s. 9. Certainteed admits that between the 1950s and the mid-1970s, it purchased asbestos cement siding from National Gypsum and rebranded and resold this product as Certainteed siding (see Exh 6 to Freisz Aff at ¶ 16). In fact, Defendant actually proffered in its moving papers the contracts it entered into with National Gypsum (see Exh 6 to Freisz Aff at Exhs D & E thereto). These contracts, dated 1969 and 1972, with National Gypsum were 3 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 negotiated and/or entered into in Buffalo, New York, which was National Gypsum’s “executive offices” (Id.). 10. Indeed, Certainteed’s interrogatory responses confirm that it did, and does, business in New York, and that National Gypsum was the only manufacturer of asbestos siding to which Certainteed purchased for resale between the 1950s and the 1970s (see Exhibit A – Interrogatory Responses, at 4 (Answer to Question 5), and 44 (Attachment I)). Its corporate representative, Charles Blakinger, has testified that for all sales of asbestos cement siding on the East Coast between the 1950s and 1970s – which would include Mr. Godfrey’s exposure in Massachusetts – all of Certainteed’s asbestos cement siding was manufactured by National Gypsum (Exhibit B at 89-90). 11. Prior interrogatory responses from National Gypsum similarly confirm that National Gypsum was headquartered in Buffalo, New York until 1976, when it moved to Texas (see Exhibit C – Interrogatory Responses, at Exhibit “1”). C. Certainteed’s Participation In A Conspiracy In New York 12. In 1964, Certainteed attended a conference in New York City on the Biological Effects of Asbestos (see Exhibit D – Nov. 10, 1964 memorandum). Certainteed had a discussion at that New York conference with representatives of Turner Brothers Asbestos Company where it was noted, inter alia, “that U.S. Industry, in general, does not want to accept the fact that asbestos is hazardous and they will accept any doctor’s view if he intimates that it is not hazardous” (Id. at 1). Extensive scientific and medical evidence was presented about the hazards of asbestos exposure at that conference (Id. at 2). But in response, Certainteed’s industrial hygienist only suggested that certain action be taken to protect workers in Certainteed’s own 4 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 plant (Id. at 3; Exh B at 110-12). Defendant’s corporate representative, Mr. Blakinger, authenticated this memorandum (Exh B at 94), and he conceded that Certainteed took no action in response to this meeting in New York to study whether its products, including asbestos siding, were hazardous to consumers, or to warn them of such dangers (Exh B at 108-09). 13. The same month, another memorandum was written that evinced the conspiracy at issue (see Exhibit E – Nov. 3, 1964 memorandum). Therein, it was asserted that: It is quite apparent that the whole affair was motivated and executed in the interest of the Asbestos Workers of America. The New York Academy of Science and many of the speakers, I feel, did not realize how they were being used until the session was underway. While it is an indictment of the dusty conditions of the asbestos insulator, and perhaps justifiably so, it also indicts the entire asbestos industry from the mine to the ultimate end product which contains asbestos. (Id. at 3). The Certainteed author called on the “asbestos industry” to: take some positive actions to clarify the truths and to correct any untruths that may have been presented. A dispassionate appraisal of the contents of each paper here presented must be made and an evaluation and a differentiation be made between the fact and fiction. … I…would imagine that some organized effort in this regard by that segment of the industry will be forthcoming. Certain-teed must, of course, make every effort to provide maximum safety and minimum dust count conditions in the manufacturing operations; however, it seems to me that the effects of any adverse publicity in this regard will be felt more potently in our sales effort…. To combat this sort of publicity, the overall industry will have to combine forces and establish a case history record file that will disprove such claims. It seems to me that it is beyond the financial and personnel capabilities of any one company to tackle such a problem alone. We should rely on the work that has been established and proven thus far and cooperate with allied industrial interests along those lines that are legally, logically, and morally open to us. (Id. at 3-4). 14. In February 1969, however, Certainteed was present at a meeting of the Health & Safety Council of the Asbestos Cement Products Association in New York (see Exhibit F – Mar. 3, 1969 memorandum and annexed minutes). This document is authenticated by Certainteed’s 5 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 corporate representative, Mr. Blakinger (see Exhibit G at 164-76). At the meeting, the Council discussed the safety procedures implemented in Great Britain to prevent asbestos exposure from asbestos cement products (Id. at page 2 of minutes), and noted that the then-current respirators were insufficient to protect workers from this danger (Id. at page 2-3 of minutes). Certainteed employee “A.E. Apline” was appointed to a subcommittee to create a booklet on “recommended health safety practices for handling and applying asbestos cement products” (Id. at page 3 of minutes), as well as a “plant environmental control subcommittee” (Id. at page 4 of minutes). The intent in issuing the booklet was to “limit[] the liability of the manufacturers,” and to advance a “strong public relations effort” to “keep the insurance carriers advised of what the industry is doing.” (Id. at page 3 of minutes). It was noted by a doctor who spoke at the meeting that the biological effects of asbestos released from asbestos cement products should be studied (Id. at page 4 of minutes). 15. Yet Certainteed’s corporate representative, Mr. Blakinger, has admitted that Certainteed never issued the booklet, never provided any warnings, and never conducted any studies as indicated by the doctor at the meeting (Exh G at 172-76). 16. Instead, shortly after the 1969 meeting, in December 1970, Certainteed and other asbestos companies revised and issued a position paper that falsely portrayed the science and medicine that it was aware has been discussed at the prior New York meetings, asserting that although asbestos spray-on fireproofing could be banned as hazardous: the industry is opposed to the complete banning of any useful material, including asbestos-containing products, on the unproven supposition that its application or use under the proper operating conditions may present a health hazard to the general public. It has not been demonstrated that asbestos is a public health hazard. There is no evidence, scientific or otherwise, that anyone in the general public has ever contracted any disease from exposure to the minute amounts of asbestos that may be released into the air at construction or demolition sites. 6 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 (Exhibit H).3 ARGUMENT 17. 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 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). 18. Here, Plaintiff has established a prima facie case of specific jurisdiction on two separate bases: first, based on Defendant’s “transaction” of purchasing asbestos cement siding from National Gypsum in Buffalo, New York for the purposes of rebranding that siding as a Certainteed product in the 1960s and 1970s, which is the product that Mr. Godfrey was exposed to; and second, based on Defendant’s meetings held in New York where it conspired with other asbestos companies to conceal the dangers of asbestos from the public. 3 Certification for this document is not currently in Plaintiff’s possession due to the age of the document and the age of this litigation, but it will be obtained from the Johns-Manville Trust Repository. 7 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 I. CERTAINTEED 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 WITH THE NATIONAL GYPSUM COMPANY 19. 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 (N.Y. 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 (N.Y.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 (N.Y. 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 (N.Y. 2017). 20. 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. 8 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 21. Here, Certainteed itself has established the necessary contacts with New York, as it proffered the contracts it entered into with National Gypsum in Buffalo, New York to purchase and resell – as rebranded Certainteed products – the asbestos cement siding to which Mr. Godfrey was exposed in the early to mid-1970s. 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)). 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). Since National Gypsum was the only manufacturer of the asbestos siding that Certainteed sold in the 1970s, i.e., at the time of Mr. Godfrey’s exposure (Exh A at 44; Exh B at 89-90), the siding he was exposed to necessarily derived from Certainteed’s contracts with National Gypsum in Buffalo, New York, and thus “arose from that transaction.” CPLR 302(a)(1). 22. 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 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, 9 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 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. 23. 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 was conferred jurisdiction in the Meyers case. 24. Accordingly, specific jurisdiction is conferred in this case under CPLR 302(a)(1) based on Certainteed’s transaction of business in New York associated with the exact asbestos siding to which Mr. Godfrey was exposed. II. CERTAINTEED IS SUBJECT TO SPECIFIC JURISDICTION UNDER CPLR 302(A)(2) SINCE IT CONSPIRED IN NEW YORK TO CONCEAL THE HAZARDS OF ASBESTOS CEMENT PRODUCTS FROM THE PUBLIC 25. C.P.L.R. § 302(a)(2) subjects an entity to specific jurisdiction for “commit[ting] a tortious act within the state.” To establish jurisdiction on the basis of a civil conspiracy, a plaintiff must (1) make a prima facie showing of a conspiracy, and (2) allege specific facts warranting the inference that the defendant was a member of the conspiracy. Chrysler Capital Corp. v. Century Power Corp., 778 F. Supp. 1260, 1266 (S.D.N.Y. 1991). 26. Here, Plaintiff specifically alleges in her complaint that Defendants, Certainteed among them, conspired and acted in concert to suppress and conceal the hazards of asbestos (see 10 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 Exh 1 to Freisz Aff at ¶¶ 102-117). Plaintiff further alleges, as part of her affirmative Article 16 claims, that Defendant intentionally acted in concert (Id. at ¶ 159). 27. To this end, the evidence on this record demonstrates that such concerted action and conspiracy took place in New York, when Certainteed attended various conferences and meetings where it was determined that statements should be made to the public that were contrary to the science and medicine regarding the hazards of asbestos, while at the same time Certainteed was taking action to protect its own workers from the hazards of asbestos in its own plants (see Exhs D – H). 28. This constitutes, or at a minimum raises issues of fact as to, an overt act of civil conspiracy in New York. See Lawati v. Montague Morgan Slade Ltd., 102 A.D.3d 427, 428 (1st Dept. 2013) (“The complaint sufficiently alleges jurisdiction over Rigby under CPLR 302(a)(2) insofar as the complaint pleads that Rigby was a part of a conspiracy involving the commission of several overt tortious acts in New York”). 29. Therefore, inasmuch as at least part of the tortious acts alleged in the complaint – conspiracy and acting in concert – were undertaken by Certainteed in New York, specific jurisdiction is established under CPLR 302(a)(2). III. CERTAINTEED HAS VOLUNTARILY CONSENTED TO PERSONAL JURISDICTION IN THIS FORUM 30. Although Plaintiff is aware that this Court has previously rejected this argument, it is presented for the purposes of preservation. Plaintiffs assert that Certainteed has consented to jurisdiction by registering to do business here (see Exhibit I – Dept. of State Entity Information). This issue, however, need to be reached since specific jurisdiction is established prima facie under both CPLR 302(a)(1) & (2). 11 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 IV. IN THE ALTERNATIVE TO DENIAL, THIS MOTION TO DISMISS SHOULD BE DENIED WITHOUT PREJUDICE PENDING JURISDICTIONAL DISCOVERY 31. 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 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). 32. Here, trial has not been scheduled, and in light of the extensive evidence of Certainteed’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 Certainteed Corporation’s motion to dismiss on the basis of lack of personal jurisdiction should be denied. Dated: New York, New York October 30, 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 12 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 07:10 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 10/30/2017 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. # 03 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 Certainteed Corporation’s Motion to Dismiss by using the NYSCEF system on October 30, 2017 to: Mark Friesz, Esq. DARGER ERRANTE YAVITZ & BLAU LLP 116 East 27th Street, 12th Floor New York, New York 10016 212.452.5300 mfriesz@deybllp.com /s/ Seth A. Dymond Seth A. Dymond 13 of 13