TCG Succeeds on Motion to Dismiss for Contractor in New York Products Liability Action

On January 9, 2024, The Cook Group’s Paige Schindler, Kevin Hannemann, and Hanson Horn won its motion to dismiss on behalf of its client on a personal jurisdiction issue before New York City Asbestos Litigation (“NYCAL”) Coordinating Judge, Justice Adam Silvera, in the Mario Ferrari case.

Mr. Ferrari alleged exposure to asbestos from work performed by a contractor client at various sites throughout New York City—however, he only specifically placed the client at Columbia University.  In its verified discovery responses, though, the client affirmed that it did not perform any work at Columbia University.  To the contrary, the only site match testified to by Mr. Ferrari was at Newark Airport, thus, Mr. Ferrari’s claim, as it concerned the client, did not arise out of any actions on behalf of the client in New York.  Accordingly, because the client is not a New York corporation, and Mr. Ferrari’s injury could not have arisen out of any work the contractor performed in New York to satisfy New York’s long arm jurisdiction statute, TCG moved to dismiss the claim.

Instead of dismissing the supplemental discovery on behalf of contractor as insufficient, or otherwise giving more weight to plaintiff’s testimony—at least enough weight to create a question of fact—Justice Silvera held that there was “insufficient evidence of defendant’s requisite minimal contacts with New York” to establish personal jurisdiction.  In so holding, he cited the recent Witte decision, rendered by the First Department of the Appellate Division in late 2023 that overturned Justice Silvera on personal jurisdiction grounds, which placed more weight on the evidence proffered by the defendant rather than the anecdotal evidence by the plaintiff.  Here, Justice Silvera focused on the fact that the client affirmed it was not at Columbia University, and no other site identified by plaintiff, and refused to give weight to the “various locations” testimony offered by plaintiff.

This decision, followed by the Witte appellate decision, opens up an avenue for defendants to challenge plaintiff’s anecdotal testimony with objective evidence based on personal knowledge.  We remain at your availability to discuss this decision.