Jurisdiction: Supreme Court of New York, New York County
In a New York City asbestos action, defendant Tishman Liquidating Corporation moved for summary judgment to dismiss plaintiff’s complaint, arguing the plaintiff’s decedent’s deposition testimony could not be used against it at trial. Tishman stated it was a necessary party to an action plaintiff commenced in Illinois and that the use of the decedent’s testimony would constitute inadmissible hearsay. Such testimony would therefore prejudice Tishman in the New York case because Article 16 bars it from presenting evidence of joint tortfeasor’s liability in the Illinois action.
Plaintiff commenced the Illinois action in 2019 and conducted the decedent’s deposition in December of that year. In February 2020, plaintiff amended his complaint adding Tishman to the Illinois action. He then commenced a second lawsuit in New York State.
Tishman argued it was a necessary party to the Illinois action containing identical claims. Tishman contended the Article 16 of the CPLR prevented it from raising defenses regarding the liability of its joint tortfeasors in the New York Action. Further, it argued the decedent’s alleged exposure occurred in Illinois and New York State did not have personal jurisdiction over the joint tortfeasors. CPLR § 3117(a)(3) states that “the deposition of any person may be used by any party for any purposes against any other party who was present or represented at the time of the deposition or who had the notice required under these rules, provided the court finds: (i) the witness is dead.”
Tishman was neither a party to the Illinois action nor present at the time of plaintiff’s deposition. Accordingly, the court determined plaintiff’s deposition transcript could not be used against Tishman as it would be inadmissible hearsay. The NYS Appellate Division, First Department consistently holds “evidence otherwise excludable at trial may be considered in opposition to a motion for summary judgment as long as it does not because the sole basis for the court’s determination.” In re NYC Asbestos Litig., Oken v. A.C.&S., et al., 7 A.D.3d 285, 285 (1st Dept. 2004). Here, plaintiff proffered his deposition transcript as the sole evidence to establish the facts alleged. Since this testimony would serve as the critical sole evidence, the court declined to admit it as evidence against Tishman.
CPLR § 1003 states that “[n]onjoinder of a party who should be joined under section 1001 is a ground for dismissal of an action without prejudice unless the court allows the action to proceeds without that party under the provisions of that section.” Moreover, CPLR § 1001 states that “[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.”
The court noted it was undisputed that plaintiff commenced an action against Tishman in Illinois. However, plaintiff failed to effectuate service upon Tishman’s former registered agent and made no further attempts to remediate this issue. The court determined “under the specific circumstances of the case, nonjoinder of parties who would be necessary for complete relief to either plaintiff or to [Tishman] is grounds for dismissal as stated above.” Patton v. Aerco Intl., Inc., 2024 NY Slip OP 33626[U] [Sup Ct., NY County 2024]. According to CPLR § 1601 “the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action.” Subsequently, because the joint tortfeasors in the Illinois action were not New York corporations and did not conduct business in New York State, plaintiff’s alleged asbestos exposure did not occur in New York State either. The court ruled Tishman’s argument that it would be prejudiced since a New York jury would not be able to consider the culpable conduct of the joint tortfeasors in the Illinois action was correct. As such, it granted Tishman’s motion for summary judgment.
Read the full decision here.