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NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------- -----------------------------------X
:
SINAR SEEN, Indiviadally and as Temporary :
AdmMistrator of the Estate of MUNIR SEEN, deceased : Index No. 190225/2018
: Date Filed: 08/10/2018
Plaintiffs, :
: AMENDED SUMMONS
-against- :
84 LUMBER COMPANY, et al. :
Defendants. :
SEE ATTACHED RIDER- FULL CAPTION :
----------- ------- -----------------X
TO THE ABOVE NAMED DEFENDANTS:
You are hereby surr:::d to answer the Complaint in this action and to serve a
copy of your Answer, or, if the Complaint is not served with this Summons, to serve a Notice of
Appearance, on the Plaintiff's Attorney within 20 days after the service of this Summons,
exclusive of the day of service (or within 30 days after the service is complete ifthis Summons is
not personally delivered to you within the State of New York). In the case of your failure to
appear or answer, judgment will be taken against you by default for the relief demanded in the
complaint.
Date: New York, New York
July 16, 2019
SIMMONS HANLY CONROY LLC
Attorneys for Plaintiffs
112 Madison Avenue
New York, New York 10016-7416
Tel.: (212) 784-6400
Fax: (212) 213-5949
By:
James . Kramer, Esq.
Defendants'
addresses:
SEE ATTACHED RIDER
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------ ---------------------------------------------------X
:
SINAR SEEN, Individually and as Temporary :
Administrator of the Estate of MUNIR SEEN, Deceased :
: Index No.: 190225/2018
:
:
Plaintiffs, : COMPLAINT FILED: 8/10/2018
:
-against- :
:
:
:VERIFIED THIRD AMENDED
:FULL CAPTION RIDER
84 LUMBER COMPANY :
AERCO INTERNATIONAL, INC. :
ALGOMA HARDWOODS, INC., :
BENJAMIN MOORE & COMPANY, :
BMCE INC., in itself and as successor to UNITED :
CENTRIFUGAL PUMP CO., :
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, :
CONWED CORPORATION, :
CRANE CO., :
DAP, INC. n/k/a LA MIRADA PRODUCTS, INC., :
FOSTER WHEELER ENERGY CORPORATION,
GENERAL ELECTRIC COMPANY, :
INDUSTRIAL HOLDINGS CORPORATION f/k/a THE :
CARBORUNDUM COMPANY, :
INGERSOLL-RAND COMPANY, :
IPA SYSTEMS, INC., :
JOHN CRANE INC., :
KELLY MOORE PAINT COMPANY INC., :
MARIO & DIBONO FIREPROOFING CORP., :
MARIO & DIBONO PLASTERING CO. INC., :
MCKESSON CORPORATION , :
METROPOLITAN LIFE INSURANCE COMPANY, :
PFIZER INC., :
SHERWIN-WILLIAMS AUTOMOTIVE FINISHES :
CORPORATION, :
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SIMPSON TIMBER COMPANY, :
TISHMAN CONSTRUCTION CORPORATION, :
TURNER CONSTRUCTION COMPANY, :
U.S. PLYWOOD a/k/a INTERNATIONAL PAPER
COMPANY, :
WEYERHAEUSERCOMPANY, :
UNION CARBIDE CORPORATION, :
JOHN DOE 1 through JOHN DOE 75 (fictitious), :
:
Defendants. :
____________-- ------------------------X
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--- - ----------------------X
SINAR SEEN, Individually and as Temporary :
Administrator of the Estate of MUNIR SEEN, Deceased :
: Index No.: 190225/2018
:
:
Plaintiffs, : COMPLAINT FILED: 8/10/2018
:
-against- :
:
:
: VERIFIED THIRD
: AMENDED COMPLAINT
84 LUMBER COMPANY :
AERCO INTERNATIONAL, INC. :
ALGOMA HARDWOODS, INC., :
BENJAMIN MOORE & COMPANY, :
BMCE INC., in itself and as successor to UNITED :
CENTRIFUGAL PUMP CO., :
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, :
CONWED CORPORATION, :
CRANE CO., :
DAP, INC. n/k/a LA MIRADA PRODUCTS, INC., :
FOSTER WHEELER ENERGY CORPORATION, :
GENERAL ELECTRIC COMPANY, :
INDUSTRIAL HOLDINGS CORPORATION f/k/a THE :
CARBORUNDUM COMPANY, :
INGERSOLL-RAND COMPANY, :
IPA SYSTEMS, INC., :
JOHN CRANE INC., :
KELLY MOORE PAINT COMPANY INC., :
MARIO & DIBONO FIREPROOFING CORP., :
MARIO & DIBONO PLASTERING CO. INC.,
MCKESSON CORPORATION ,
METROPOLITAN LIFE INSURANCE COMPANY, :
PFIZER INC., :
SHERWIN-WILLIAMS AUTOMOTIVE FINISHES :
CORPORATION, :
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SIMPSON TIMBER COMPANY, :
TISHMAN CONSTRUCTION CORPORATION, :
TURNER CONSTRUCTION COMPANY, :
U.S. PLYWOOD a/k/a INTERNATIONAL PAPER :
COMPANY, :
WEYERHAEUSERCOMPANY, :
UNION CARBIDE CORPORATION, :
JOHN DOE 1 through JOHN DOE 75 (fictitious), :
Defendants. :
------------ X
Plaintiff's complaint of the defendants, by SIMMONS HANLY CONROY, their
attorneys, respectfully alleges, upon information and belief, at alltimes hereinafter mentioned, as
follows:
PARTIES - PLAINTIFFS
l. Plaintiffs, Sinar Seen resides at 473 Colfax Rd.., Wayne, NJ. Decedent, Munir
Seen was exposed to asbestos while working as a laborer at Metal Cutting Corp,, a laborer at Gulf
Plastic Product Co., an operator at Lily Cup Corp., a drywaller, laborer and carpenter doing
construction work and a security guard at Passaic County Technical Institute. While working at
these jobs and at other times and places, Decedent Munir Seen was exposed to dust from asbestos
and asbestos containing products. As a direct and proximate result of his inhalation and ingestion
Defendants'
of asbestos dust particles and fibers from asbestos and asbestos-contaminated
products, Decedent Munir Seen developed mesothelioma on or about February 16, 2016. Said
injury meeting the criteria for placement on the New York City Asbestos Litigation ("NYCAL")
active docket as set forth in the NYCAL Case management order.
2. Plaintiff's respectfully repeats and realleges, and incorporates as set forth more
fully herein allallegations contained in Simmons Hanly Conroy Standard Complaint for New
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York City Asbestos Litigation filed with the Court under Index No. 40,000 on June 16, 2015 as it
pertains to the defendants in the aforementioned caption.
3. Reference herein to plaintiff and/or plaintiff's decedents is reference to all the
persons set forth above as is syntactically and contextually correct.
PARTIES - DEFENDANTS
4. Defendant, 84 LUMBER COMPANY, is a corporation and was doing
business in the State of New York.
5. Defendant, AERCO INTERNATIONAL INC., is a corporation and was doing
business in the State of New York.
6. Defendant, BENJAMIN MOORE & COMPANY, is a corporation and was doing
business in the State of New York.
7. Defendant, BMCE INC., in itselfand as successor to UNITED CENTRIFUGAL
PUMP CO., is a corporation and was doing business in the State of New York.
8. Defendant, CBS CORPORATION a Delaware Corporation f/lda VIACOM INC.,
successor by merger to CBS CORPORATION, a Pennsylvania Corporation f/k/a
WESTINGHOUSE ELECTRIC CORPORATION, is a corporation and was doing
business in the State of New York.
9. Defendant, CERTAIN-TEED CORPORATION, is a corporation and was doing
business in the State of New York.
10. Defendant, CONWED CORPORATION is a corporation and was doing business
in the State of New York.
11. Defendant, CRANE CO. is a corporation and was doing business in the State of
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New York.
12. Defendant, DAP, INC. n/k/a LA MIRADA PRODUCTS, INC., is a corporation
and was doing business in the State of New York.
13. Defendant, FOSTER WHEELER ENERGY CORPORATION is a corporation
and was doing business in the State of New York.
14. Defendant, GENERAL ELECTRIC COMPANY, is a domestic corporation with
itsprincipal place of business in the State of New York.
15. Defendant, INDUSTRIAL HOLDINGS CORPORATION f/k/a THE
CARBORUNDUM COMPANY, is a domestic corporation with itsprincipal
place of business in the State of New York.
16. Defendant, INGERSOLL-RAND COMPANY, is a corporation and was doing
business in the State of New York.
17. Defendant, IPA SYSTEMS, INC., , Individually and as successor to Hoffman
Specialty Co., Inc. and Bell & Gossett Company, is a corporation and was doing
business in the State of New York.
18. Defendant JOHN CRANE INC., is a corporation and was doing business in the
State of New York.
19. Defendant, KELLY MOORE PAINT COMPANY INC., is a domestic
corporation with itsprincipal place of business in the State of New York.
20. Defendant, MARIO & DIBONO FIREPROOFING CORP., is a corporation and
was doing business in the State of New York.
21. Defendant, MARIO & DIBONO PLASTERING CO., INC., is a corporation and
was doing business in the State of New York.
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22. Defendant, MCKESSON CORPORATION. is a corporation and was doing
business in the State of New York.
23. Defendant, METROPOLITAN LIFE INSURANCE COMPANY is a corporation
and was doing business in the State of New York.
24. Defendant PFIZER INC., is a corporation and was
doing business in the State of New York.
25. Defendant SHERWIN-WILLIAMS AUTOMOTIVE FINISHES
CORPORATION, is a corporation and was doing business in the State of New
York.
26. Defendant SIMPSON TIMBER COMPANY, is a corporation and was
doing business in the State of New York.
27. Defendant, TISHMAN CONSTRUCTION CORPORATION Individually and as
Successor-in-Interest to Sea-Land Service, Inc., is a corporation and was doing
business in the State of New York.
28. Defendant TURNER CONSTRUCTION COMPANY, is a corporation and was
doing business in the State of New York.
29. Defendant UNION CARBIDE CORPORATION, is a domestic corporation with
itsprincipal place of business in the State of New York.
30. Defendant U.S. PLYWOOD a/k/a INTERNATIONAL PAPER COMPANY,
is a domestic corporation with itsprincipal place of business in the State of New
York.
31. Defendant WEYERHAEUSER COMPANY, is a domestic corporation with
itsprincipal place of business in the State of New York.
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32. Defendant ALGOMA HARDWOODS, INC., is a corporation
and was doing business in the State of New York.
33. Defendant John Doe 1 (believed to be Johns-Manville Sales Corporation); John
Doe 2 (believed to be Johns-Manville Sales Corporation, successor to Jolms-Manville Products
Corporation); John Doe 3 (believed to be Johns-Manville Corporation); John Doe 4 (believed to
be Johns-Manville Canada, Inc., formerly known as Canadian Johns-Manville Co., Ltd.); John
Doe 5 (believed to be Canadian Johns-Manville Amiante Ltd., formerly known as Canadian
Johns-Manville Asbestos, Ltd.); John Doe 6 (believed to be Manville Corporation); and John
Doe 7 (believed to be International Johns-Manville Corporation, Ltd.) are the fictitious names of
corporations, partnerships, or other business entities or organizations, whose identities are not
presently known.
34. John Doe 8 through John Doe 50, are the fictitious names of corporations,
partnerships, or other business entities or organizations whose identities are not presently
known, and who mined, manufactured, sold, marketed, installed or removed, asbestos or
asbestos containing products which plaintiff used or was exposed to.
35. John Doe 51 through John Doe 75 are the fictitious names of corporations,
partnerships, or other business entities or organizations whose identities are not presently
known, and who are the alterego of or are otherwise respoiisible for the conduct or liability of
those who mined, milled, manufactured, sold, marketed, installed or removed asbestos or
asbestos containing products which plaintiff used or to which plaintiff was exposed.
"defendant"
36. The term is used hereafter to refer to all of the entities named above.
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37. At allrelevant times the defendants have done business in this state, have
transacted business in this state, have committed one or more tortuous acts within this state, and
otherwise have performed acts within or without the state which have given rise to the injuries
and losses hereafter described, and which subjects them to jurisdiction of the courts of this state.
38. Plaintiff hereby incorporate by reference all allegations set forth in the Standard
Verified Complaint filed with the Court under Index No. 40,000 on June 16, 2015 in accordance
with the Case Management Order entered by Justice Freedman respecting asbestos litigation,
Copies of the Standard Complaint are available upon written request.
JURISDICTIONAL ALLEGATIONS
39. At all relevant times, defendants have done business in this state, have transacted
business in this state, have committed one or more tortuous acts within this state, and/or otherwise
have performed acts within or without the state which have given rise to the injuries and losses
hereafter described, and which subjects them to jurisdiction of the courts of this state; or, are
present and/or doing business in this state such that they may be deemed essentially at home.
AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE
40. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged
more fully below. The following allegations are applicable only as to defendants: 84 LUMBER
COMPANY, AERCO INTERNATIONAL, INC., BENJAMIN MOORE & COMPANY,
BMCE INC., in itself and as successor to UNITED CENTRIFUGAL PUMP CO., 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, CONWED CORPORATION, CRANE
CO., DAP, INC. n/lda LA MIRADA PRODUCTS, INC., FOSTER WHEELER ENERGY
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CORPORATION, GENERAL ELECTRIC COMPANY, INDUSTRIAL HOLDINGS
CORPORATION f/lda THE CARBORUNDUM COMPANY, INGERSOLL-RAND
COMPANY, IPA SYSTEMS, INC., JOHN CRANE INC., KELLY MOORE PAINT
COMPANY INC., MARIO & D1BONO FIREPROOFING CORP., MARIO & DIBONO
PLASTERING CO. INC., MCKESSON CORPORATION , METROPOLITAN LIFE
INSURANCE COMPANY, PFIZER INC., SHERWIN-WILLIAMS AUTOMOTIVE
FINISHES CORPORATION, SIMPSON TIMBER COMPANY, TISHMAN
CONSTRUCTION CORPORATION, TURNER CONSTRUCTION COMPANY, U.S.
PLYWOOD a/k/a INTERNATIONAL PAPER COMPANY, UNION CARBIDE
CORPORATION, WEYERHAEUSER COMPANY, ALGOMA HARDWOODS, INC.; and,
JOHN DOE 1 through JOHN DOE 75 (fictitious).
41. Plaintiffs, by this reference, hereby incorporate all allegations set forth in
paragraphs 1 through 19 of the Standard Verified Complaint filed with the Court under Index
No. 40000/88 on June 16, 2015 in accordance with the Case Management Order entered by
Justice Freedman respecting asbestos litigation. Copies of the Standard Complaint are available
upon written request.
AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN STRICT
LIABILITY
42. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged
more fully below.
43. The following allegations are applicable only as to defendants: the same defendants
Plaintiffs'
identified in First Cause of Action of this Complaint.
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44. Plaintiffs, by this reference, hereby incorporate all allegations set forth in
paragraphs 1 through 12 and 20 through 26 of the Standard Verified Complaint filed with the
Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Management
Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard
Complaint are available upon written request.
AS AND FOR A THIRD CAUSE OF ACTION
AGAINST CONTRACTOR DEFENDANTS
45. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged
more fully below.
46. The following allegations are applicable only as to defendants: MARIO &DIBONO
FIREPROOFING CORP., MARIPO & DIBONO PLASTERING CO., INC., TISHMAN
CONSTRUCTION CORPORATION, TURNER CONSTRUCTION COMPANY and JOHN
DOE 1 through JOHN DOE 75 (fictitious).
47. Plaintiffs, by this reference, hereby incorporate all allegations set forth in
paragraphs 1 through 12 and 44 through 53 of the Standard Verified Complaint filed with the
Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Management
Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard
Complaint are available upon written request.
"site," "facilities"
48. As incorporated herein, the terms "facility, "and include ships /
vessels, and/or facilities, premises, and/or structures at which the same were constructed,
renovated, overhauled, repaired, maintained, and/or demolished as grammatically and
contextually appropriate.
AS AND FOR A FOURTH CAUSE OF ACTION SOUNDING
IN WILLFUL. RECKLESS AND WANTON MISCONDUCT
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49. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged
more fully below.
50. Plaintiffs bring this cause of action against ALL DEFENDANTS.
51. Plaintiffs, by this reference, hereby incorporate paragraphs all allegations set forth
in paragraphs 1 through 12 and 69 through 73 of the Standard Verified Complaint filed with the
Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Mañagersent
Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard
Complaint are available upon written request.
AS AND FOR A FIFTH CAUSE OF ACTION
AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY
52. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged
more fully below. Plaintiffs bring this claim only against Defendant Metropolitan Life Insurance
Company.
53. Plaintiffs, by this reference, hereby incorporate paragraphs allallegations set forth
in paragraphs 1 through 12 and 27 through 33 of the Standard Verified Complaint filed with the
Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Management
Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard
Complaint are available upon written request.
FOR THE SIXTH CAUSE OF ACTION FOR WRONGFUL DEATH
DAMAGES BASED ON NEGLIGENCE BY PLAINTIFF INDIVIDUALLY
_D AS REPRESENTATIVE OF THE ESTATE OF THE DECEDENT
54. Plaintiff repeats, reiterates and alleges each and every allegation contained in
6the Simmons Hanly Conroy standardized Complaint filed on June 16, 2015, inclusive with
the same force and effect as if hereinafter set forth at length.
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55. As a proximate result of the exposure to the asbestos-containing product of these
defendants, and the unavoidable and necessary inhalation of said asbestos, the Plaintiff's
Decedent developed an asbestos related disease which resulted in his death.
56. During the scope and course of Plaintiff's Decedent's employment, the Plaintiff's
Decedent was necessarily and unavoidably exposed to and did inhale asbestos dust and/or
asbestos fibers emanating from the asbestos-containing products and/or equipment of the
defendants.
57. The defendants knew or should have known that the asbestos products and/or
equipment and materials which they were providing were inhcrêñtly dangerous beyond the
scope contemplated by the ordinary user or handler who would come into contact with these
products.
58. The defendants failed to communicate any warnings concerning the dangers of
the use of said products and/or equipment and materials to those persons using, handling or
coming into contact with these products.
59. The defendants failed to warn and failed to provide adequate instructions of any
safe handling methods which should have been utilized by users, handlers, or other person who
were reasonably and foreseeably known to come into contact with their asbestos-containing
products and/or equipment and materials.
60. The defendants failed to investigate and/or test for the hazards of asbestos
products and materials.
61. To the extent that some defendants may have inquired as to the hazards of said
materials, the defendants failed to relate whatever knowledge they may have had to the
users and consumers of their asbestos-containing products.
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62. The defendants failed to make available and/or provide non-
develop,
hazardous materials which could have been used for the same purpose as their asbestos-
containing products and/or equipment.
63. The defender-ts failed to design asbestos-containing products in such a fashion as
to prohibit the release of airborne inhalable asbestos dust and/or fibers.
64. As a direct result of working with or near the asbestos materials supplied by the
defendants and the unavoidable and necessary inhalation and ingestion of said asbestos
fibers, Plaintiff's Decedent developed an asbestos related disease and subsequently died. He
suffered and endured great pain and mental anguish during repeated hospitalizations, was
required to undergo extensive medical treatment, care and expense, and suffered a loss of
enjoyment of his life.
defendants'
65. The death of Plaintiff's Decedent was proximately caused by the
negligent actions in that they negligently designed, processed, manufactured, packaged,
distributed, delivered, installed, specified the use of and/or sold the a sbestos-containing
products and/or equipment to which Decedent was exposed. Additionally, the defendants
negligently failed to render warnings, advise, give instruction and/or information to the
Decedent so that he may have made an adequate and informed judgment as to the use of the
products.
66. The defendants totally failed to use any reasonable care under all the
defendants'
circumstances and actions were a proximate cause of Plaintiff's Decedent's
death.
67. The Plaintiff's Decedent left his surviving next of kin, who have sustained
pecuniary damages, including loss of the P laintiff's Decedent's income, support, services,
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protection, care assistance, guidance, counsel, consortium and advice, mental anguish,
funeral and burial expenses and other just damages.
68. By reason of the aforesaid wrongful death, the Plaintiff's Decedent's next of
kin lost advice, guidance, inheritance, contribution and income.
69. By reason of the foregoing, Plaintiff, Individually and as Representative of the
Estate of the Decedent, has been damaged as against each defendant in compensatory
damages and punitive damages.
FOR THE SEVENTH CAUSE OF ACTION FOR WRONGFUL DEATH
DAMAGES BASED ON STRICT LIABILITY BY PLAINTIFF
INDIVIDUALLY
AND AS REPRESENTATIVE OF THE ESTATE OF THE DECEDENT
Preview
FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------- -----------------------------------X : SINAR SEEN, Indiviadally and as Temporary : AdmMistrator of the Estate of MUNIR SEEN, deceased : Index No. 190225/2018 : Date Filed: 08/10/2018 Plaintiffs, : : AMENDED SUMMONS -against- : 84 LUMBER COMPANY, et al. : Defendants. : SEE ATTACHED RIDER- FULL CAPTION : ----------- ------- -----------------X TO THE ABOVE NAMED DEFENDANTS: You are hereby surr:::d to answer the Complaint in this action and to serve a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a Notice of Appearance, on the Plaintiff's Attorney within 20 days after the service of this Summons, exclusive of the day of service (or within 30 days after the service is complete ifthis Summons is not personally delivered to you within the State of New York). In the case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Date: New York, New York July 16, 2019 SIMMONS HANLY CONROY LLC Attorneys for Plaintiffs 112 Madison Avenue New York, New York 10016-7416 Tel.: (212) 784-6400 Fax: (212) 213-5949 By: James . Kramer, Esq. Defendants' addresses: SEE ATTACHED RIDER 1 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------ ---------------------------------------------------X : SINAR SEEN, Individually and as Temporary : Administrator of the Estate of MUNIR SEEN, Deceased : : Index No.: 190225/2018 : : Plaintiffs, : COMPLAINT FILED: 8/10/2018 : -against- : : : :VERIFIED THIRD AMENDED :FULL CAPTION RIDER 84 LUMBER COMPANY : AERCO INTERNATIONAL, INC. : ALGOMA HARDWOODS, INC., : BENJAMIN MOORE & COMPANY, : BMCE INC., in itself and as successor to UNITED : CENTRIFUGAL PUMP CO., : 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, : CONWED CORPORATION, : CRANE CO., : DAP, INC. n/k/a LA MIRADA PRODUCTS, INC., : FOSTER WHEELER ENERGY CORPORATION, GENERAL ELECTRIC COMPANY, : INDUSTRIAL HOLDINGS CORPORATION f/k/a THE : CARBORUNDUM COMPANY, : INGERSOLL-RAND COMPANY, : IPA SYSTEMS, INC., : JOHN CRANE INC., : KELLY MOORE PAINT COMPANY INC., : MARIO & DIBONO FIREPROOFING CORP., : MARIO & DIBONO PLASTERING CO. INC., : MCKESSON CORPORATION , : METROPOLITAN LIFE INSURANCE COMPANY, : PFIZER INC., : SHERWIN-WILLIAMS AUTOMOTIVE FINISHES : CORPORATION, : 2 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 SIMPSON TIMBER COMPANY, : TISHMAN CONSTRUCTION CORPORATION, : TURNER CONSTRUCTION COMPANY, : U.S. PLYWOOD a/k/a INTERNATIONAL PAPER COMPANY, : WEYERHAEUSERCOMPANY, : UNION CARBIDE CORPORATION, : JOHN DOE 1 through JOHN DOE 75 (fictitious), : : Defendants. : ____________-- ------------------------X 3 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --- - ----------------------X SINAR SEEN, Individually and as Temporary : Administrator of the Estate of MUNIR SEEN, Deceased : : Index No.: 190225/2018 : : Plaintiffs, : COMPLAINT FILED: 8/10/2018 : -against- : : : : VERIFIED THIRD : AMENDED COMPLAINT 84 LUMBER COMPANY : AERCO INTERNATIONAL, INC. : ALGOMA HARDWOODS, INC., : BENJAMIN MOORE & COMPANY, : BMCE INC., in itself and as successor to UNITED : CENTRIFUGAL PUMP CO., : 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, : CONWED CORPORATION, : CRANE CO., : DAP, INC. n/k/a LA MIRADA PRODUCTS, INC., : FOSTER WHEELER ENERGY CORPORATION, : GENERAL ELECTRIC COMPANY, : INDUSTRIAL HOLDINGS CORPORATION f/k/a THE : CARBORUNDUM COMPANY, : INGERSOLL-RAND COMPANY, : IPA SYSTEMS, INC., : JOHN CRANE INC., : KELLY MOORE PAINT COMPANY INC., : MARIO & DIBONO FIREPROOFING CORP., : MARIO & DIBONO PLASTERING CO. INC., MCKESSON CORPORATION , METROPOLITAN LIFE INSURANCE COMPANY, : PFIZER INC., : SHERWIN-WILLIAMS AUTOMOTIVE FINISHES : CORPORATION, : 4 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 SIMPSON TIMBER COMPANY, : TISHMAN CONSTRUCTION CORPORATION, : TURNER CONSTRUCTION COMPANY, : U.S. PLYWOOD a/k/a INTERNATIONAL PAPER : COMPANY, : WEYERHAEUSERCOMPANY, : UNION CARBIDE CORPORATION, : JOHN DOE 1 through JOHN DOE 75 (fictitious), : Defendants. : ------------ X Plaintiff's complaint of the defendants, by SIMMONS HANLY CONROY, their attorneys, respectfully alleges, upon information and belief, at alltimes hereinafter mentioned, as follows: PARTIES - PLAINTIFFS l. Plaintiffs, Sinar Seen resides at 473 Colfax Rd.., Wayne, NJ. Decedent, Munir Seen was exposed to asbestos while working as a laborer at Metal Cutting Corp,, a laborer at Gulf Plastic Product Co., an operator at Lily Cup Corp., a drywaller, laborer and carpenter doing construction work and a security guard at Passaic County Technical Institute. While working at these jobs and at other times and places, Decedent Munir Seen was exposed to dust from asbestos and asbestos containing products. As a direct and proximate result of his inhalation and ingestion Defendants' of asbestos dust particles and fibers from asbestos and asbestos-contaminated products, Decedent Munir Seen developed mesothelioma on or about February 16, 2016. Said injury meeting the criteria for placement on the New York City Asbestos Litigation ("NYCAL") active docket as set forth in the NYCAL Case management order. 2. Plaintiff's respectfully repeats and realleges, and incorporates as set forth more fully herein allallegations contained in Simmons Hanly Conroy Standard Complaint for New 2 5 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 York City Asbestos Litigation filed with the Court under Index No. 40,000 on June 16, 2015 as it pertains to the defendants in the aforementioned caption. 3. Reference herein to plaintiff and/or plaintiff's decedents is reference to all the persons set forth above as is syntactically and contextually correct. PARTIES - DEFENDANTS 4. Defendant, 84 LUMBER COMPANY, is a corporation and was doing business in the State of New York. 5. Defendant, AERCO INTERNATIONAL INC., is a corporation and was doing business in the State of New York. 6. Defendant, BENJAMIN MOORE & COMPANY, is a corporation and was doing business in the State of New York. 7. Defendant, BMCE INC., in itselfand as successor to UNITED CENTRIFUGAL PUMP CO., is a corporation and was doing business in the State of New York. 8. Defendant, CBS CORPORATION a Delaware Corporation f/lda VIACOM INC., successor by merger to CBS CORPORATION, a Pennsylvania Corporation f/k/a WESTINGHOUSE ELECTRIC CORPORATION, is a corporation and was doing business in the State of New York. 9. Defendant, CERTAIN-TEED CORPORATION, is a corporation and was doing business in the State of New York. 10. Defendant, CONWED CORPORATION is a corporation and was doing business in the State of New York. 11. Defendant, CRANE CO. is a corporation and was doing business in the State of 3 6 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 New York. 12. Defendant, DAP, INC. n/k/a LA MIRADA PRODUCTS, INC., is a corporation and was doing business in the State of New York. 13. Defendant, FOSTER WHEELER ENERGY CORPORATION is a corporation and was doing business in the State of New York. 14. Defendant, GENERAL ELECTRIC COMPANY, is a domestic corporation with itsprincipal place of business in the State of New York. 15. Defendant, INDUSTRIAL HOLDINGS CORPORATION f/k/a THE CARBORUNDUM COMPANY, is a domestic corporation with itsprincipal place of business in the State of New York. 16. Defendant, INGERSOLL-RAND COMPANY, is a corporation and was doing business in the State of New York. 17. Defendant, IPA SYSTEMS, INC., , Individually and as successor to Hoffman Specialty Co., Inc. and Bell & Gossett Company, is a corporation and was doing business in the State of New York. 18. Defendant JOHN CRANE INC., is a corporation and was doing business in the State of New York. 19. Defendant, KELLY MOORE PAINT COMPANY INC., is a domestic corporation with itsprincipal place of business in the State of New York. 20. Defendant, MARIO & DIBONO FIREPROOFING CORP., is a corporation and was doing business in the State of New York. 21. Defendant, MARIO & DIBONO PLASTERING CO., INC., is a corporation and was doing business in the State of New York. 4 7 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 22. Defendant, MCKESSON CORPORATION. is a corporation and was doing business in the State of New York. 23. Defendant, METROPOLITAN LIFE INSURANCE COMPANY is a corporation and was doing business in the State of New York. 24. Defendant PFIZER INC., is a corporation and was doing business in the State of New York. 25. Defendant SHERWIN-WILLIAMS AUTOMOTIVE FINISHES CORPORATION, is a corporation and was doing business in the State of New York. 26. Defendant SIMPSON TIMBER COMPANY, is a corporation and was doing business in the State of New York. 27. Defendant, TISHMAN CONSTRUCTION CORPORATION Individually and as Successor-in-Interest to Sea-Land Service, Inc., is a corporation and was doing business in the State of New York. 28. Defendant TURNER CONSTRUCTION COMPANY, is a corporation and was doing business in the State of New York. 29. Defendant UNION CARBIDE CORPORATION, is a domestic corporation with itsprincipal place of business in the State of New York. 30. Defendant U.S. PLYWOOD a/k/a INTERNATIONAL PAPER COMPANY, is a domestic corporation with itsprincipal place of business in the State of New York. 31. Defendant WEYERHAEUSER COMPANY, is a domestic corporation with itsprincipal place of business in the State of New York. 5 8 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 32. Defendant ALGOMA HARDWOODS, INC., is a corporation and was doing business in the State of New York. 33. Defendant John Doe 1 (believed to be Johns-Manville Sales Corporation); John Doe 2 (believed to be Johns-Manville Sales Corporation, successor to Jolms-Manville Products Corporation); John Doe 3 (believed to be Johns-Manville Corporation); John Doe 4 (believed to be Johns-Manville Canada, Inc., formerly known as Canadian Johns-Manville Co., Ltd.); John Doe 5 (believed to be Canadian Johns-Manville Amiante Ltd., formerly known as Canadian Johns-Manville Asbestos, Ltd.); John Doe 6 (believed to be Manville Corporation); and John Doe 7 (believed to be International Johns-Manville Corporation, Ltd.) are the fictitious names of corporations, partnerships, or other business entities or organizations, whose identities are not presently known. 34. John Doe 8 through John Doe 50, are the fictitious names of corporations, partnerships, or other business entities or organizations whose identities are not presently known, and who mined, manufactured, sold, marketed, installed or removed, asbestos or asbestos containing products which plaintiff used or was exposed to. 35. John Doe 51 through John Doe 75 are the fictitious names of corporations, partnerships, or other business entities or organizations whose identities are not presently known, and who are the alterego of or are otherwise respoiisible for the conduct or liability of those who mined, milled, manufactured, sold, marketed, installed or removed asbestos or asbestos containing products which plaintiff used or to which plaintiff was exposed. "defendant" 36. The term is used hereafter to refer to all of the entities named above. 6 9 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 37. At allrelevant times the defendants have done business in this state, have transacted business in this state, have committed one or more tortuous acts within this state, and otherwise have performed acts within or without the state which have given rise to the injuries and losses hereafter described, and which subjects them to jurisdiction of the courts of this state. 38. Plaintiff hereby incorporate by reference all allegations set forth in the Standard Verified Complaint filed with the Court under Index No. 40,000 on June 16, 2015 in accordance with the Case Management Order entered by Justice Freedman respecting asbestos litigation, Copies of the Standard Complaint are available upon written request. JURISDICTIONAL ALLEGATIONS 39. At all relevant times, defendants have done business in this state, have transacted business in this state, have committed one or more tortuous acts within this state, and/or otherwise have performed acts within or without the state which have given rise to the injuries and losses hereafter described, and which subjects them to jurisdiction of the courts of this state; or, are present and/or doing business in this state such that they may be deemed essentially at home. AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE 40. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged more fully below. The following allegations are applicable only as to defendants: 84 LUMBER COMPANY, AERCO INTERNATIONAL, INC., BENJAMIN MOORE & COMPANY, BMCE INC., in itself and as successor to UNITED CENTRIFUGAL PUMP CO., 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, CONWED CORPORATION, CRANE CO., DAP, INC. n/lda LA MIRADA PRODUCTS, INC., FOSTER WHEELER ENERGY 7 10 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 CORPORATION, GENERAL ELECTRIC COMPANY, INDUSTRIAL HOLDINGS CORPORATION f/lda THE CARBORUNDUM COMPANY, INGERSOLL-RAND COMPANY, IPA SYSTEMS, INC., JOHN CRANE INC., KELLY MOORE PAINT COMPANY INC., MARIO & D1BONO FIREPROOFING CORP., MARIO & DIBONO PLASTERING CO. INC., MCKESSON CORPORATION , METROPOLITAN LIFE INSURANCE COMPANY, PFIZER INC., SHERWIN-WILLIAMS AUTOMOTIVE FINISHES CORPORATION, SIMPSON TIMBER COMPANY, TISHMAN CONSTRUCTION CORPORATION, TURNER CONSTRUCTION COMPANY, U.S. PLYWOOD a/k/a INTERNATIONAL PAPER COMPANY, UNION CARBIDE CORPORATION, WEYERHAEUSER COMPANY, ALGOMA HARDWOODS, INC.; and, JOHN DOE 1 through JOHN DOE 75 (fictitious). 41. Plaintiffs, by this reference, hereby incorporate all allegations set forth in paragraphs 1 through 19 of the Standard Verified Complaint filed with the Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Management Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard Complaint are available upon written request. AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 42. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged more fully below. 43. The following allegations are applicable only as to defendants: the same defendants Plaintiffs' identified in First Cause of Action of this Complaint. 8 11 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 44. Plaintiffs, by this reference, hereby incorporate all allegations set forth in paragraphs 1 through 12 and 20 through 26 of the Standard Verified Complaint filed with the Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Management Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard Complaint are available upon written request. AS AND FOR A THIRD CAUSE OF ACTION AGAINST CONTRACTOR DEFENDANTS 45. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged more fully below. 46. The following allegations are applicable only as to defendants: MARIO &DIBONO FIREPROOFING CORP., MARIPO & DIBONO PLASTERING CO., INC., TISHMAN CONSTRUCTION CORPORATION, TURNER CONSTRUCTION COMPANY and JOHN DOE 1 through JOHN DOE 75 (fictitious). 47. Plaintiffs, by this reference, hereby incorporate all allegations set forth in paragraphs 1 through 12 and 44 through 53 of the Standard Verified Complaint filed with the Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Management Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard Complaint are available upon written request. "site," "facilities" 48. As incorporated herein, the terms "facility, "and include ships / vessels, and/or facilities, premises, and/or structures at which the same were constructed, renovated, overhauled, repaired, maintained, and/or demolished as grammatically and contextually appropriate. AS AND FOR A FOURTH CAUSE OF ACTION SOUNDING IN WILLFUL. RECKLESS AND WANTON MISCONDUCT 9 12 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 49. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged more fully below. 50. Plaintiffs bring this cause of action against ALL DEFENDANTS. 51. Plaintiffs, by this reference, hereby incorporate paragraphs all allegations set forth in paragraphs 1 through 12 and 69 through 73 of the Standard Verified Complaint filed with the Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Mañagersent Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard Complaint are available upon written request. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY 52. Plaintiffs repeat and reiterate the prior allegations of this complaint as if alleged more fully below. Plaintiffs bring this claim only against Defendant Metropolitan Life Insurance Company. 53. Plaintiffs, by this reference, hereby incorporate paragraphs allallegations set forth in paragraphs 1 through 12 and 27 through 33 of the Standard Verified Complaint filed with the Court under Index No. 40000/88 on June 16, 2015 in accordance with the Case Management Order entered by Justice Freedman respecting asbestos litigation. Copies of the Standard Complaint are available upon written request. FOR THE SIXTH CAUSE OF ACTION FOR WRONGFUL DEATH DAMAGES BASED ON NEGLIGENCE BY PLAINTIFF INDIVIDUALLY _D AS REPRESENTATIVE OF THE ESTATE OF THE DECEDENT 54. Plaintiff repeats, reiterates and alleges each and every allegation contained in 6the Simmons Hanly Conroy standardized Complaint filed on June 16, 2015, inclusive with the same force and effect as if hereinafter set forth at length. 10 13 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 55. As a proximate result of the exposure to the asbestos-containing product of these defendants, and the unavoidable and necessary inhalation of said asbestos, the Plaintiff's Decedent developed an asbestos related disease which resulted in his death. 56. During the scope and course of Plaintiff's Decedent's employment, the Plaintiff's Decedent was necessarily and unavoidably exposed to and did inhale asbestos dust and/or asbestos fibers emanating from the asbestos-containing products and/or equipment of the defendants. 57. The defendants knew or should have known that the asbestos products and/or equipment and materials which they were providing were inhcrêñtly dangerous beyond the scope contemplated by the ordinary user or handler who would come into contact with these products. 58. The defendants failed to communicate any warnings concerning the dangers of the use of said products and/or equipment and materials to those persons using, handling or coming into contact with these products. 59. The defendants failed to warn and failed to provide adequate instructions of any safe handling methods which should have been utilized by users, handlers, or other person who were reasonably and foreseeably known to come into contact with their asbestos-containing products and/or equipment and materials. 60. The defendants failed to investigate and/or test for the hazards of asbestos products and materials. 61. To the extent that some defendants may have inquired as to the hazards of said materials, the defendants failed to relate whatever knowledge they may have had to the users and consumers of their asbestos-containing products. 11 14 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 62. The defendants failed to make available and/or provide non- develop, hazardous materials which could have been used for the same purpose as their asbestos- containing products and/or equipment. 63. The defender-ts failed to design asbestos-containing products in such a fashion as to prohibit the release of airborne inhalable asbestos dust and/or fibers. 64. As a direct result of working with or near the asbestos materials supplied by the defendants and the unavoidable and necessary inhalation and ingestion of said asbestos fibers, Plaintiff's Decedent developed an asbestos related disease and subsequently died. He suffered and endured great pain and mental anguish during repeated hospitalizations, was required to undergo extensive medical treatment, care and expense, and suffered a loss of enjoyment of his life. defendants' 65. The death of Plaintiff's Decedent was proximately caused by the negligent actions in that they negligently designed, processed, manufactured, packaged, distributed, delivered, installed, specified the use of and/or sold the a sbestos-containing products and/or equipment to which Decedent was exposed. Additionally, the defendants negligently failed to render warnings, advise, give instruction and/or information to the Decedent so that he may have made an adequate and informed judgment as to the use of the products. 66. The defendants totally failed to use any reasonable care under all the defendants' circumstances and actions were a proximate cause of Plaintiff's Decedent's death. 67. The Plaintiff's Decedent left his surviving next of kin, who have sustained pecuniary damages, including loss of the P laintiff's Decedent's income, support, services, 12 15 of 20 FILED: NEW YORK COUNTY CLERK 07/16/2019 03:18 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 221 RECEIVED NYSCEF: 07/16/2019 protection, care assistance, guidance, counsel, consortium and advice, mental anguish, funeral and burial expenses and other just damages. 68. By reason of the aforesaid wrongful death, the Plaintiff's Decedent's next of kin lost advice, guidance, inheritance, contribution and income. 69. By reason of the foregoing, Plaintiff, Individually and as Representative of the Estate of the Decedent, has been damaged as against each defendant in compensatory damages and punitive damages. FOR THE SEVENTH CAUSE OF ACTION FOR WRONGFUL DEATH DAMAGES BASED ON STRICT LIABILITY BY PLAINTIFF INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF THE DECEDENT