Supreme Court of New York, New York County, February 16, 2021
In this action, plaintiff James Witte alleged asbestos exposure from supervising the installation of fire doors manufactured by T.M. Cobb Company in Manhattan. Cobb moved to dismiss the plaintiff’s complaint based on lack of personal jurisdiction. Cobb argued that the court did not have personal jurisdiction over them as they were incorporated in and have their principal place of business in California. Further, Cobb’s manufacturing and distribution facilities are located in four California cities. Cobb also contended that the plaintiff has not met its burden under the Long Arm Statute. Finally, Cobb argued that the plaintiff cannot show that Cobb committed a tortious act in New York, as well as whether the plaintiff suffered an injury stemming from his work with a Cobb product in New York. Plaintiff opposed Cobb’s motion, arguing that Plaintiff’s cause of action against Cobb arises from Cobb’s activity in New York pursuant to CPLR § 302(a)(1). Further, thr plaintiff contended that “Cobb committed a tortious act in New York by supplying asbestos-containing products to New York, or by selling asbestos-containing products that it could foresee being used in New York.”
Generally, a defendant will move to dismiss a plaintiff’s complaint due to lack of jurisdiction under CPLR § 3211(a)(8). In addition, “[j]urisdiction over a non-domiciliary is governed by New York’s general jurisdiction statute (CPLR § 301), and long-arm statute (CPLR § 302(a)).” Justice Silvera agreed with Cobb that the court did not have general jurisdiction over Cobb. However, the court found that the plaintiff’s testimony of exposure to asbestos from the installation of Cobb fire doors in Manhattan was sufficient to establish jurisdiction under CPLR § 302(a)(2).
Under New York’s Long Arm Statute, “proof of one transaction in New York is sufficient to invoke jurisdiction … so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 (1998). The plaintiff argued that jurisdictional discovery should proceed in this matter so as to determine whether Cobb sold, distributed, or marketed its products in New York. The court accepted the plaintiff’s argument that Cobb’s corporate representative affidavit was similar to the affidavit found to be conclusory in Cerutti. Specifically, the Cerutti affidavit “asserted that defendant never, marketed, sold, shipped, or delivered its products in New York and that the defendant never conducted business in New York; committed a tortious act in New York; and never owned, used, or possessed property in New York.” As such, the court held that the plaintiff can “further investigate ‘how defendant’s products could have made their way to New York, whether directly or through an intermediary distributor or agent, as this discovery is required to support specific jurisdiction under CPLR § 302(a)(3).’” Therefore, the court denied Cobb’s motion to dismiss, and granted the plaintiff’s cross-motion to compel responses to jurisdictional discovery and produce its corporate representative for a deposition.