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Kusmer Wins NYCAL Motion to Dismiss based on Lack of Personal Jurisdiction

Kusmer Wins NYCAL Motion to Dismiss based on Lack of Personal Jurisdiction

Kurowski Shultz Attorneys At Law


Principal Candice Kusmer has achieved a New York City Asbestos Litigation (NYCAL) victory on a motion to dismiss based on the court’s lack of personal jurisdiction.  In her motion, Kusmer argued under Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014), that the court did not have general jurisdiction over defendant, American Biltrite, Inc., which is incorporated in Delaware and maintains its principal place of business in Massachusetts.  Further, she argued the court lacked specific jurisdiction under the New York long-arm statute.  Plaintiff was not a New York resident and alleged exposure to asbestos through American Biltrite’s product exclusively in the state of Missouri.

Though Plaintiff conceded the lack of general jurisdiction, he argued that the court had specific jurisdiction due to American Biltrite’s nationwide marketing of products, including in New York, in furtherance of the same so-called “mass tort” as other defendants who were subject to New York jurisdiction.  Plaintiff cited a California Supreme Court case in support of this argument, which involvedhundreds of plaintiffs’ use of the prescription drug, Plavix – some of whom were California residents.  See Bristol-Myers Squibb v. Superior Court, 377 P.2d 874 (2016).

In granting the Motion to Dismiss, Justice Peter Moulton noted that New York’s long-arm statute, CPLR § 302(a)(1)-(3), “narrowly authorizes a court to exercise specific jurisdiction over a defendant when: (1) the tort arises in the state and from a defendant’s transaction of business in the state, (2) a tortious act is committed within the state, or (3) a tortious act is committed outside of the state causing injury in the state.”  The court held that none of these sections were triggered where: (1) there was no evidence that Plaintiff’s injuries arose from any New York business transaction, (2) Plaintiff alleged exposure to asbestos through defendant’s product solely in Missouri, and (3) Plaintiff could not establish defendant’s “current and ongoing presence within the state.”  The court also distinguished the mass tort facts of the Bristol-Myers Squibb California case from those before it, refusing to “ignore New York’s long-arm statute and broaden jurisdiction so vastly as to ignore any meaningful statutory limits to its exercise.”

Local counsel, Christopher Kozak of Landman Corsi Ballaine & Ford, P.C., argued the motion on behalf of American Biltrite.  The case is Trumbull v. Adience, Inc., et al., New York County Index No. 190084-16, Order dated March 6, 2017.