Hickey v. 3M Co.

2024 NY Slip Op 33594(U)

• Court: New York Supreme Court, New York County
• Decided: October 9, 2024
• Docket: Index No. 190014/2024
• Status: Unpublished

Opinion

Hickey v 3M Co. 2024 NY Slip Op 33594(U) October 9, 2024 Supreme Court, New York County Docket Number: Index No. 190014/2024 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 190014/2024 NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 10/09/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice ----------···---·-·-·--·--·-----------------·--------- . ·-·-------------------X INDEX NO. 190014/2024 RAYMOND HICKEY, TANA HICKEY. MOTION DATE 02/27/2024 Plaintiff,

• V.

3M COMPANY, ABB, INC, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BAILEY CONTROLS, ABCO PEERLESS SPRINKLER CORP .. AEW CAPITAL MANAGEMENT, LP, AIR & LIQUID SYSTEMS CORPORATION. AS SUCCESSOR-BY-MERGER TO BUFFALO PUMPS. INC.ANCHOR/DARLING VALVE COMPANY, AO SMITH WATER PRODUCTS COMPANY. INC ..ARMSTRONG INTERNATIONAL, INC.,BEAZER EAST, INC.,BLACKMAN PLUMBING SUPPLY COMPANY, INC. NIK/A FERGUSON PLUMBING, BROOKFIELD OFFICE PROPERTIES, INC.,BRUCE SUPPLY CORP., BURNHAM, LLC,BW/IP INC.,AND ITS WHOLLY OWNED SUBSIDIARIES, BYRON JACKSON PUMPS AND BORGWARNER, CANVAS MW LLC,FORMERL Y KNOWN AS THE MARLEY-WYLAIN COMPANY, LLC,CARRIER CORPORATION, CASHCO, INC.,CEN-TECH, INC.,CHINA INVESTMENT CORPORATION, CLARK RELIANCE CORPORATION AS SUCCESSOR TO JERGUSON. CLEAVER-BROOKS, INC.,CLYDE UNION, INC.,COLUMBIA BOILER COMPANY OF POTTSTOWN, DECISION + ORDER ON COLUMBIA UNIVERSITY, COMPUDYNE CORPORATION, MOTION INDIVIDUALLY, AND AS SUCCESSOR TO YORK SHIPLEY, INC.,CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,COURTER & COMPANY INCORPORATED, CROSBY VALVE LLC,DAVIS & WARSHOW, INC.,DCO LLC,(F/K/A DANA COMPANIES, LLC), DELPHI PLUMBING & HEATING, INC.,ECR INTERNATIONAL, INC.,INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO DUNKIRK, DUNKIRK BOILERS, AND UTICA BOILERS, EMERSON FINAL CONTROLS US HOLDING LLC,INDIVIDUALL Y ANO AS SUCCESSOR TO KEYSTONE VALVES & CONTROLS, ELECTROLUX HOME PRODUCTS, INC.,IND!VIDUALL Y AND AS SUCCESSOR TO TAPPAN AND COPES- VULCAN, FAIRBANKS COMPANY, FERGUSON ENTERPRISES, LLC,FERGUSON PLUMBING SUPPLY, F/K/A BLACKMAN PLUMBING SUPPLY COMPANY, FISHER CONTROLS INTERNATIONAL. LLC,FLAMEMASTER AEROSPACE CORPORATION, FLOWSERVE US, INC.,SOLELY AS SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD

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VALVE, INC.,NORDSTROM VALVES, INC.,EDWARD VOGT VALVE COMPANY, AND VOGT VALVE COMPANY, FMC CORPORATION, INDIVIDUALLY, AND AS SUCCESSOR TO CHICAGO PUMP COMPANY, NORTHERN PUMP COMPANY, CROSBY PUMP COMPANY, AND PEERLESS PUMP COMPANY: FORT KENT HOLDINGS, INC ,F/K/A DUNHAM-BUSH, INC.,FOSTER WHEELER, LLC., FULTON BOILER WORKS, INC.,GARDNER DENVER, INC ,GENERAL ELECTRIC COMPANY, GEROSA INC.,GRAYBAR ELECTRIC COMPANY INC .. GREENE TWEED & COMPANY, INC.,GRINNELL LLC,HONEYWELL, INC.,IMO INDUSTRIES, INC.,HYDROTHERM CORPORATION, ITT CORPORATION, INDIVIDUALLY, AND AS SUCCESSOR IN INTEREST TO BELL & GOSSETT, KENNEDY VALVE MFG. CO. INC ,AND HOFFMAN STEAM TRAPS. JENKINS BROS, INC.,J.J WHITE. INC.,JPMORGAN CHASE & CO, JOHN E. POTENTE & SONS, INC.,JOHNSON CONTROLS, INC.,JOY GLOBAL UNDERGROUND MINING. LLC F/K/A JOY TECHNOLOGIES. LLC,KAISER GYPSUM COMPANY, INC.,KEELER DORR-OLIVER BOILER COMPANY, KOHLER CO, LAARS HEATING SYSTEMS COMPANY, LENNOX INDUSTRIES, INC.,MESTEK, INC.,MIL TON ROY COMPANY, MILWAUKEE VALVE COMPANY, INC.MONTGOMERY STREET PARTNERS. MUNACO SEALING SOLUTIONS, INC.,INDIVIDUALLY, AS SUCCESSOR TO AND DOING BUSINESS AS MUNACO PACKING & RUBBER CO, INC.,NATIONAL GRID GENERATION LLC D/8/D NATIONAL GRID, NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, NEW YORK-PRESBYTERIAN BROOKLYN METHODIST HOSPITAL, NEW YORK UNIVERSITY TISCH SCHOOL OF THE ARTS, NIBCO INC.,O'CONNOR CONSTRUCTORS, INC.,F/K/A THOMAS O'CONNOR & CONNOR & CO .. INC .. PACE UNIVERSITY, PARAMOUNT GLOBAL F/K/N VIACOMCBS, INC. F/K/A 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, PECORA CORPORATION, PERMA-PIPE, INC.,A SUBSIDIARY OF MFR!, INC.,BY ACQUISITION OF RICWIL PIPING SYSTEMS LIMITED PARTNERSHIP AND RICWIL, INC .. RAEL AUTOMATIC SPRINKLER CO., REDCO CORPORATION F/K/A CRANE CO, INDIVIDUALLY AND AS SUCCESSOR TO CYCLOTHERM, INC.,PACIFIC VALVES, THE NATIONAL RADIATOR COMPANY. NATIONAL US RADIATOR CORPORATION, AND STOCKHOLM VALVES & FITTINGS, INC.,RESEARCH- COTTRELL, INC.,N/K/A AWT AIR COMPANY, RETIREMENT SYSTEMS OF ALABAMA, RIGGS DISTLER & COMPANY, INC.,RHEEM MANUFACTURING INC.,RILEY POWER. INC ,ROBERTSHAW CONTROLS COMPANY INDIVIDUALLY, AND AS SUCCESSOR TO FULTON SYLPHON COMPANY. ROMAN STONE CONSTRUCTION,

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RW BECKETT CORPORATION, SEQUOIA VENTURES, INC .. INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BECHTEL POWER CORPORATION AND BECHTEL CORORATION, SPIRAX SARCO, INC. INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY. SPX COOLING TECHNOLOGIES, INC ,INDIVIDUALLY AND AS SUCCESSOR TO MARLEY COOLING TECHNOLOGIES AND MARLEY COOLING TOWERS, SUPERIOR BOILER WORKS, INC.,TENNECO, INC.,TENNECO AUTOMOTIVE OPERATING COMPANY INC.,TDY INDUSTRIES. INC. F/K/A TELEDYNE INDUSTRIES, INC.,INDIVIDUALL Y AND AS SUCCESSOR IN INTEREST TO FARRIS ENGINEERING, THE GOLDMAN SACHS GROUP, INC.,THE J.R CLARKSON COMPANY LLC,INDIVIDUALL Y AND AS SUCCESSOR BY MERGER TO KUNKLE INDUSTRIES. INC .. AND J.R LONGERAN CO .. TISHMAN LIQUIDATING CORP., TISHMAN REALTY & CONSTRUCTION CO, INC.,TREADWELL CORPORATION, TURNER CONSTRUCTION COMPANY, UNION CARBIDE CORPORATION, VELAN VALVE CORPORATION, VERIZON COMMUNICATIONS, INC.VERIZON NEW YORK. INC.,V!KlNG PUMPS, LLC,WARREN PUMPS LLC.WATSON MCDANIEL COMPANY, WEIL-MCLAIN, A DIVISION OF THE MARLEY- WYLAIN COMPANY, VALVES & CONTROLS USA. INC. D/8/A ATWOOD & MORRILL, WILLIAM POWELL COMPANY. YORK INTERNATIONAL CORPORATION. ZURN INDUSTRIES, INC.,INDIVIDUALL Y AND AS SUCCESSOR IN INTEREST TO ERIE CITY IRON WORKS, 353W57 1704, LLC,356W58 GROUND LESSOR LLC,CSC HUDSON, LLC,EC 58TH STREET LLC,HENRY HUDSON HOLDINGS. LLC,HUDSON 1701/1706, LLC,HUDSON 1702, LLC,JDP MECHANICAL, INC.,MSP CAPITAL INVESTMENTS. LLC., THE CITY OF NEW YORK, OFFICE OF THE NEW YORK CITY COMPTROLLER, THE CITY UNIVERSITY OF NEW YORK, NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, CITY UNIVERSITY CONSTRUCTION FUND, BOROUGH OF MANHATTEN COMMUNITY COLLEGE, NEW YORK CITY OFFICE OF ENVIRONMENTAL PROTECTION. NEW YORK HEALTH & HOSPITALS

Defendant

---·····--····-----··--··--··-·-······-··-----------------------------X The following e-filed documents, listed by NYSCEF document number {Motion 001) 81, 82, 83, 84, 85, 86, 87, 88, 99, 102, 103. 104,105,106,107,108,109,110,111,115,135 were read on this motion to/for DISMISS

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Upon the foregoing documents. it is ordered that defendant Montgomery Street Partners'

motion to dismiss the complaint pursuant to CPLR §3211 (a)( 1) is denied for the reasons set forth

below.

This case arises out of alleged asbestos exposure by plaintiff Raymond Hickey who

worked as a steamfitter at the subject premises, 353 West 57 th Street ('"the Property") when it

was formerly known as the Henry Hudson Hotel. ,\'ee Affirmation in Opposition to Defendant

Montgomery Street Partners' Motion to Dismiss. p. 1-2. Mr. Hickey \Vas diagnosed with lung

cancer on September 22, 2023. Id. at p, l. Plaintiffs allege that moving defendant is a purchaser

of the Property as per the Assignment Assumption and Modification of Purchase and Sale

Agreement dated May 3, 2022. Id at 2. The Agreement names 356W58 Ground Lessor,LLC.

known as ''MSP Purchaser", as a purchaser of the Property, Id. Moving defendant Montgomery

Street Partners allege that it has been incorrectly sued and is not responsible for any alleged

asbestos exposure and docs not, nor has ever, previously owned. operated, occupied. or

controlled the Property. 5'ee Memorandum of Law in Support of Defendant Montgomery Street

Partners· Motion to Dismiss the Complaint, p. 4. Moving defendant seeks dismissal pursuant to

CPLR §32] 1(a)(l) based upon the documentary evidence.

Under CPLR §3211 (a)(l ), dismissal is warranted vvhen the documentary evidence

submitted ..resolves all factual issues as a matter of law, and conclusively disposes of the

plaintiffs claim.'' ForUs Financial Services. LLC v Fimal Futures U.5~4. Inc., 290 AD2d 383,383

( l st Dept. 2002): see Amsterdam HosyJitality Group, /,LC v Afars hall-Alan Assoc., , 120

AD3d 43 L 433 (1st Dept 2014). "A papenvilI quality as 'documentary evidence' only if it

satisfies the follo\ving criteria: (I) it is ·unambiguous': (2) it is of ·undisputed authenticity·; and

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(3) its contents are ·essentially undeniable.' See VXI Lux Jloldco S.A. R.L. I' SIC Holdings, LLC,

171 AD3d 189. 193 (l st Dept. 2019).

In support, moving defendant submits the complaint a standard asbestos complaint an

at1idavit from Chief Operating Officer of Montgomery Street Partners Erin ()'Grady, and the

Assignment. Assumption and l\lodification of Purchase and Sale Agreement and Purchase and

Sale Agreement (hereinafter collectively referred to as "The Agreements'"). It is well settled that

affidavits do not constitute documentary evidence within the meaning of CPLR 3211 (a)( l ). See

Bou v Llamoza, 173 AD3d 575 ( l st Dept. 2019); Asmar v 20th and SePenth Assoc.\·.. LJ.C,

125 AD3d 563,564 (Ist Dept 2015); Art and Fashion Group c·orp. v Cyclops Prod. Inc .. 120

AD3d 436,438 (1st Dept. 2014); 1:~imcrman v.Janojf, 40 AD3d 242,242 (1st Dept. 2007). The

Court notes, however, that in her affidavit Ms. O'Grady incorrectly states that the Assignment

Assumption and Modification of Purchase and Sale Agreement was entered into by and between

EC 58 th Street LLC as the seller and CSC Hudson, LLC as the only purchaser, whereas a review

of the document itself reveals that there were two additional purchasers 353W57 1704. LLC

("CSC Store Unit Purchaser") and 356W58 (}round Lessor LLC ("MSP Purchaser'').

Plaintiffs argue that there is ambiguity regarding 356W58 Ground Lessor LLC's use of

the alleged alias MSP Purchaser in the Assignment, Assumption and Modification of Purchase

and Sale Agreement, and point out that moving defendant offers no explanation. See Affirmation

in Opposition, supra. p. 4-5. Plaintiffs further argue that the Assignment. Assumption and

Modification of Purchase and Sale Agreement states that the parties arc entering into a ·'99-year

ground lease.,. pursuant to which MSP Purchaser, as landlord shall lease to Ground Tenant",

which indicates that MSP Purchaser has control over, O\;ms, and possesses, the referenced

property. Id at 2-3.

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As the moving defendants· submissions fail to "resolve!J all factual issues as a matter of

law. and conclusively dispose[l of the plaintiffs claim" Fortis Financial .\'ervices. !JC v Fimat

Futures supra at 383. moving defendant's motion to dismiss is denied.

Accordingly, it is hereby

ORDERED that defendant Montgomery Street Partners' motion to dismiss pursuant to

CPLR 3211 (a)( l) is denied in its entirety, and it is further

ORDERED that within 30 days of entry, plaintiffs shall serve a copy of this

decision/order upon all parties with notice of entry.

This constitutes the Decision/Order of the Court.

10/9/2024 DATE ADAM SILVERA, J.S.C.

□ NON-FINAL OISPOSfTION

§ CHECK ONE: CASE DISPOSED

GRANTED 0 DENIED GRANTED IN PART D OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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