The following electronically filed documents read on this motion by defendant LG CHEM LTD. (LG Chem) for an Order pursuant to CPLR 3211(a)(8), dismissing the complaint and all cross-claims asserted against LG Chem on the ground that the Court lacks personal jurisdiction over LG Chem; or, alternatively, granting summary judgment pursuant to CPLR 3212, dismissing the complaint and all cross-claims against LG Chem on the ground that the Court lacks personal jurisdiction over LG Chem: Papers Numbered Notice of Motion-Affirmation-Memo. of Law-Exhibits. EF 492-505 Vape Easy’s Affirmation in Opposition-Exhibits- Memo. of Law EF 506-510 Plaintiff’s Affirmation in Opposition-Exhibits- Memo. of Law EF 511-530 MadVapes’ Affirmation in Opposition-Exhibits- Memo. of Law EF 531-533 Reply Affirmation EF 536 This is an action to recover damages for personal injuries allegedly sustained by plaintiff on April 7, 2016 when she was injured by a vape/e-cigarette battery that combusted on her person. The Amended Complaint alleges that plaintiff was injured by an 18650 lithium-ion battery cell that she purchased from House of Vapes Inc. d/b/a Vape Easy New York (Vape Easy) to use in her vaping device. Mark Hoogendorm appeared for an examination before trial on February 27, 2018 on behalf of MadVapes Holdings, LLC (Madvapes). Hoogendorm testified that Vape Easy purchased the subject battery from MadVapes, and MadVapes purchased the subject battery from Efest, a Chinese vaping company. Previously, by Short Form Order dated April 5, 2019, this Court denied LG Chem’s motion for summary judgment, finding that LG Chem failed to resolve all triable issues regarding its culpability. Accordingly, that branch of the motion for summary judgment is denied. The instant motion violates the general proscription against successive summary judgment motions, and LG Chem failed to demonstrate any newly discovered evidence or other sufficient cause for bringing a successive summary judgment motion (see Vinar v. Litman, 110 AD3d 867 [2d Dept. 2013]; Tolpygina v. Teper, 63 AD3d 722 [2d Dept. 2009]; Lapadula v. Sang Shing Kwok, 304 AD2d 798 [2d Dept. 2003]). LG Chem also moves to dismiss the action on the ground that the Court lacks personal jurisdiction over it. Joon Young Shin a/k/a Alex Shin appeared for an examination before trial on December 1, 2017 on behalf of LG Chem and testified that LG Chem sells batteries to mostly power tool companies, packers, and agents. LG Chem sold six million or more of its HG2 batteries in 2015 and a similar amount in 2016. LG Chem’s batteries were sold on e-commerce websites such as Amazon and eBay in June and July of 2016. LG Chem’s packers, agents, and small system makers were leaking LG Chem’s HG2 batteries into the market. Six months after the subject accident, warnings were applied to the batteries. In support of the motion, LG Chem submits the affirmation of Wonbae Baek dated March 17, 2021. Baek is currently employed at LG Energy Solution, Ltd. (LGES), an entity newly formed as of December 1, 2020, in a spin-off of LG Chem’s battery division. LGES is a wholly owned subsidiary of LG Chem. Baek’s current title is Sales Professional. Baek’s job responsibilities include sales of battery packs and small application battery cells, including 18650 cylindrical lithium-ion battery cells. Baek was formerly employed by LG Chem from February 2016 through November 2020. While at LG Chem, Baek’s most recent title was Sales Professional, and Baek’s responsibilities included sales of 18650 lithium-ion battery cells. LGES is in possession of business records related to the business of LG Chem’s former battery division, including all business records related to the design, manufacture, distribution, and sale of 18650 lithium-ion battery cells. LG Chem is a Korean company with its headquarters and principal offices in Seoul, South Korea. As of November 30, 2020, LG Chem did not have an office in New York, was not registered to do business in New York, did not have a registered agent for the service of process in New York, did not own or lease any property in New York, and did not have any employees who worked in New York. Baek has no reason to believe that LG Chem currently has an office in New York, business registration in New York, registered agent in New York, property in New York, or employees working in New York. LG Chem never designed, manufactured, distributed, advertised, or sold 18650 lithium-ion cells for sale to or use by individual customers as standalone, removable batteries. LG Chem never authorized any manufacturer, wholesaler, distributor, retainer, re-seller, or other individual or entity to do so. The 18650 lithium-ion cell was not designed or manufactured in New York. As of November 30, 2020, LG Chem had never conducted any business with Vape Easy, MadVapes, or Efest. LG Chem previously manufactured 18650 lithium-ion battery cells for use in specific applications by sophisticated companies. LG Chem no longer manufactures or sells lithium-ion battery cells. LG Chem did not direct or control the actions of Vape Easy, MadVapes, or Efest, and never authorized Vape Easy, MadVapes, or Efest to advertise, distribute, or sell LG 18650 lithium-ion cells for use by individual consumers as standalone, removable batteries for any purpose. LG Chem never sold any lithium-ion battery cells to any distributor, wholesaler, retailer, or any other individual or entity known to LG Chem to be engaged in the business of selling 18650 lithium-ion cells directly to consumers for use as standalone, removable batteries. LG Chem never authorized any manufacturer, distributor, wholesaler, retailer, re-seller, or other individual or entity to advertise, distribute, or sell LG Chem 18650 lithium-ion cells for use by individual consumers as standalone, removable batteries in e-cigarette devices or for any other purpose. Based on the evidence submitted, LG Chem contends that there is no basis for exercising general jurisdiction over it in New York as New York is not LG Chem’s place of incorporation or its principal place of business, and LG Chem does not have any continuous or systematic contacts with New York. LG Chem further contends that there is no basis for exercising specific jurisdiction over it in New York as such would not comport with due process as LG Chem has not engaged in any purposeful activities directed toward New York. Vape Easy, plaintiff, and MadVapes each oppose the motion. Vape Easy contends that LG Chem waived the defense of personal jurisdiction. Vape Easy further contends that even if LG Chem did not waive the defense, LG Chem does extensive business within New York, subjecting it to personal jurisdiction to the courts therein. Plaintiff opposes the motion on the grounds that the Court has specific personal jurisdiction over LG Chem (citing Giusti v. LG Chem, Ltd., Index No. 621643/2019 [Sup. Ct., Suffolk Cnty. March 29, 2021][rejecting LG Chem's argument that its lithium batteries arrived in the forum state through the unilateral actions of multiple third parties unconnected to LG Chem, and denying LG Chem's motion to dismiss for lack of personal jurisdiction]). Additionally, plaintiff contends that Baek’s affirmation is insufficient as it fails to establish that LG Chem has never distributed or sold LG HG2 18650 lithium-ion power cells in New York and as it fails to comply with CPLR 2309(c) requirements. MadVapes adopts the arguments set forth in the oppositions of Vape Easy and plaintiff. “The party seeking to assert personal jurisdiction bears the ultimate burden of proof to establish a basis for such jurisdiction” (Sacco v. Reel-O-Matic, Inc., 183 AD3d 567, 568 [2d Dept. 2020]). “However, to successfully oppose [a motion to dismiss for lack of personal jurisdiction], the plaintiff need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the court” (America/Intl. 1994 Venture v. Mau, 146 AD3d 40, 51 [2d Dept. 2016]). Here, plaintiff asserts specific jurisdiction over LG Chem under CPLR 302(a)(3). Pursuant to CPLR 302(a)(3), a court may exercise personal jurisdiction over any nondomiciliary if the nondomiciliary “commits a tortious act without the state causing injury to person or property within the state. . . if he (I) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods use or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce”. Here, plaintiff’s claims arise out of a tortious act resulting in an injury, which occurred in New York. Annexed to plaintiff’s opposition are screenshots from LG Chem’s website, indicating that LG Chem has several locations within the United States, and a map included in an advertisement for solar panels showing numerous locations in New York where the solar panels can be purchased. The website also advertises 18650 lithium-ion cells as standalone batteries in a variety of colors. Moreover, in February 2020, LG Chem warned its New York customers through an advertisement in the New York Times of the danger associated with using its 18650 lithium-ion battery as a standalone battery. Based on such, this Court finds that LG Chem should have reasonably expected the sale of a defective battery to have consequences in New York, and LG Chem derived substantial revenue from interstate and international commerce. Accordingly, plaintiff has made a prima facie showing that defendant is subject to the personal jurisdiction of this Court. Although Baek’s affirmation provides that the subject battery was not designed or manufactured in New York, Baek fails to establish that LG Chem never distributed or sold LG HG2 18650 lithium-ion power cells in New York. Moreover, Baek merely affirms that Baek has no reason to believe that LG Chem has an office in New York, business registration in New York, registered agent in New York, property in New York, or employees working in New York. Baek does not state the basis for such statement. Since this Court finds that jurisdiction exists under New York’s long-arm statute, the Court must now determine “whether the exercise of jurisdiction comports with due process” (LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]). The Due Process Clause of the 14th Amendment permits a state to exercise personal jurisdiction over a non-domiciliary defendant with whom it has certain minimum contacts (see Kernan v. Kurz-Hastings, Inc., 175 F3d 236 [2d Cir. 1999]). These contacts must not offend “traditional notions of fair play and substantial justice” (International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 US 310, 316 [1945]). “A nondomiciliary tortfeasor has minimum contacts with the forum State-and may thus reasonably foresee the prospect of defending a suit there — if it purposefully avails itself of the privilege of conducting activities within the forum State” (LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 210, 216 [2000][internal quotation marks omitted]). “[I]f the sale of a product of a manufacturer or distributor…is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others” (LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 210, 217 [2000][internal quotation marks omitted]). While LG Chem argues that the battery was not designed or manufactured in New York and was not first sold in New York, there is no requirement that a strict causal relationship between LG Chem’s in-state activity and the litigation exist for a finding that specific jurisdiction attached (see Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S.Ct. 1017 [2021]; Keeton v. Hustler Magazine, Inc., 465 US 770 [1984][finding that when a corporation has continuously and deliberately exploited a State's market, it must reasonably anticipate being haled in that State's courts to defend actions based on products causing injury there). Once minimum contacts have been established, "the prospect of defending a suit in the forum State must also comport with traditional notions of fair play and substantial justice" (LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 210, 217 [2000][internal quotation marks omitted]). A defendant “who purposefully has directed [its] activities at forum residents…must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable” (Burger King Corp. v. Rudzewicz, 471 US 462, 477 [1985]). “A court must consider the burden on the defendant, the interests of the forum state, and the plaintiff’s interest in obtaining relief” (Asahi Metal Indus. Co., Ltd. v. Superior Ct. of Cal., Solano County, 480 US 102 [1987]). Here, any burden on LG Chem in defending this lawsuit in New York is lessened by the fact that it purposefully availed itself of the laws of New York. Here, LG Chem’s website demonstrates its willingness to serve the New York market. Moreover, the subject battery was in New York, the incident occurred in New York, the injury was inflicted upon a New York resident, and plaintiff was treated for her injuries in New York. Thus, New York would be the most efficient venue for obtaining relief. Accordingly, and for the reasons stated above, it is hereby ORDERED, that the motion is denied. Dated: June 29, 2021
