The following e-filed documents, listed by NYSCEF document number (Motion 016) 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 750, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 815, 816, 817, 818, 827, 828 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, it is ordered that the instant motion for summary judgment seeking dismissal of this action, pursuant to CPLR §3212, and plaintiffs cross-motion for sanctions, are decided in accordance with the decision below. Here, defendants Watts Water Technologies, Inc. and Watts Regulator Co. (hereinafter collectively referred to as “Watts defendants”) move to dismiss this action against them on the grounds that plaintiffs experts fail to proffer a scientifically reasonable estimate of plaintiff s exposure level to asbestos through the Watts defendants’ products and that plaintiffs experts fail to proffer a scientific assessment of plaintiff’s total asbestos exposure for all sources. Plaintiff cross-moves for sanctions and opposes the Watts defendants’ motion. The Watts defendants oppose plaintiffs cross-motion and submit reply, and plaintiff replies to his cross-motion. According to the Watts defendants, plaintiffs deposition testimony states that he was exposed to asbestos when he worked at Governor’s Island in New York in 1973 to 1974 while working around personnel tearing down, cleaning and rebuilding Watts brand valves. Plaintiff further worked with Watts’ valves while employed with New Hampshire Medical Center from 1977 to 1997 where he personally worked with Watts valves. Consequently, moving defendants argue, in the footnotes, that New Hampshire law applies. Preliminarily, the Court notes that the Watts defendants moved separately seeking to apply New Hampshire law herein. Such motion was previously denied. Here, in support of their motion for summary judgment, the Watts defendants argue that plaintiff failed to proffer any evidence establishing that its valves were designed to be used with asbestos containing insulation and that plaintiff testified that he did not have knowledge of the manufacturer specifications for the valves. The Watts defendants further argue that plaintiff failed to prove that exposure to the Watts defendants’ product was sufficient to cause plaintiffs mesothelioma. In support, moving defendants point to the report of Dr. Holstein, plaintiffs expert, arguing that Dr. Holstein merely states conclusory opinions regarding the cause of plaintiff’s mesothelioma. Plaintiff cross-moves for sanctions pursuant to CPLR §3126 and opposes moving defendants’ summary judgment motion. Plaintiff argues that the Watts defendants failed to establish that its product could not have exposed plaintiff to asbestos and could not have caused plaintiffs illness as the Watts defendants failed to proffer any corporate documents to support its claims, and have further failed to comply with basic discovery. Plaintiff argues that the Watts defendants have undertaken a course of conduct to deliberately stall and frustrate the discovery process despite discovery having been ordered and over a year passing. According to plaintiff, the Watts defendants have filed motion after motion to delay and prolong discovery, as well as this action, such that sanctions are warranted. Plaintiff seeks to have the Watts defendants’ answers stricken. In opposition, plaintiff further argues that moving defendants have failed to meet their burden for summary judgment. Plaintiff argues that the Watts defendants failed to comply with the Case Management Order dated June 20, 2017 (hereinafter referred to as the “CMO”) in moving for summary judgment. The Watts defendants oppose plaintiffs cross-motion and reply to plaintiffs opposition to their motion for summary judgment. Moving defendants argue that they met their burden by pointing to plaintiffs proof to show that it is legally insufficient to support the cause of action. In reply, moving defendants argue that they had no duty to warn as to third-party insulation or other materials and further argue that Dr. Holstein’s report could not support a jury finding that their product was a sufficient cause of plaintiff’s mesothelioma. In opposition to the cross-motion for sanctions, the Watts defendants argue that this Court has no jurisdiction over them, as argued in the two motions to dismiss based upon personal jurisdiction. As such, the Watts defendants argues that this Court lacks the jurisdiction to grant plaintiffs cross-motion for sanctions and to issue any orders compelling discovery. Next, moving defendants argue that discovery is automatically stayed for a jurisdictional or summary judgment motion pursuant to CPLR §3214. Moving defendants further argue that plaintiff failed to comply with the CMO in cross-moving for sanctions. Finally, the Watts defendants argue that sanctions may not be awarded here as they have not disobeyed any discovery orders, as none of the discovery orders were valid due to the lack of personal jurisdiction. Plaintiffs reply to the Watts defendants’ opposition to the cross-motion contends that discovery is not stayed pursuant to the CMO and that sanctions are permitted herein. According to plaintiff, the Watts defendants have taken several contradictory positions and ignores the CMO in making their arguments. Following the submission of the papers, the Watts defendants wrote a letter to the Court stating that the Court of Appeals case of Nemeth v. Brenntag North America & Co., et. al., No. 24, 2022 WL 1217464 (NY Apr. 26, 2022) serves as authority for their arguments in the summary judgment motion. On May 5, 2022, plaintiff filed a supplemental affirmation to further support their cross-motion for sanctions arguing that recent occurrences further support sanctions. Specifically, plaintiff argues that in its cross-motion, he details the Watts defendants’ nationwide efforts to stall discovery and delay asbestos actions. In his supplemental affirmation, plaintiff argues that the Watts defendants have now, in violation of this Court’s order, failed to comply with basic discovery requests. As to the Watts defendants’ motion for summary judgment, the Court notes that summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See id. at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. See Zuckerman v. City of New York, 49 NY2d 557, 560 (1980). “In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility.” Garcia vJ.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep’t 1992), citing Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 (1st Dep’t 1990). The court’s role is “issue-finding, rather than issue-determination”. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v. Schmieder, 46 NY2d 471, 475-476 (1979). Furthermore, the Appellate Division, First Department has held that on a motion for summary judgment, it is moving defendant’s burden “to unequivocally establish that its product could not have contributed to the causation of plaintiff’s injury”. Reid’ v. Georgia-Pacific Corp., 212 AD2d 462, 463 (1st Dep’t 1995). Here, the Watts defendants failed to meet its initial burden in establishing that its product did not contain asbestos and could not have contributed to plaintiffs injury. See DiSalvo v. AO Smith Water Products, 123 AD3d 498, 499 (1st Dep’t 2014). Rather, moving defendants rely on plaintiffs alleged inability to proffer any evidence establishing that the Watts defendants’ valves were designed to be used with asbestos containing insulation and plaintiffs alleged inability to prove that exposure to the Watts defendants’ product was sufficient to cause plaintiffs mesothelioma. The Court notes that the Watts defendants cannot satisfy its burden by merely pointing to gaps in plaintiffs proof. See Alvarez v. 21st Century Renovations Ltd., 66 AD3d 524, 525 (1st Dep’t 2009). Here, moving defendants’ motion relies solely on alleged gaps in plaintiffs proof in an attempt to meet its burden for summary judgment. Thus, the Watts defendants’ argument that plaintiffs expert is insufficient fails. Here, moving defendants have provided no evidence that their product did not create visible asbestos dust which plaintiff testified he was exposed to. Moving defendant contests causation but fails to proffer a single report from any industrial hygienist, physician, medical expert, or any expert in support of its motion. Moreover, the Watts defendants further fail to submit any evidence in support of their motion to establish that their products could not have caused plaintiffs exposure to asbestos and resulting injury as required pursuant to Reid supra. The Watts defendants merely pointed to gaps in plaintiffs proof and has failed to provide evidence to establish that plaintiff was not exposed to asbestos through one of its products. Thus, the Watts defendants have failed to meet its burden for summary judgment. Further, as to specific causation, Honorable Manuel Mendez noted that “plaintiffs are not required to show the precise causes of damages as a result of [plaintiffs] exposure to [defendant's] product, only facts and conditions from which defendant’s liability may be reasonably inferred”. Marzigliano v. Amchem Products, Inc., et. at, Index No. 190134/17, mot. 003, p. 5 (internal citations and quotations omitted). Here, like in Marzigliano, plaintiffs deposition testimony identified the Watts defendants’ products as a source of his exposure to asbestos. Such testimony combined with the report of Dr. Zhang has created “facts and conditions from which [the Watts defendants'] liability may be reasonably inferred” and raises issues of fact. See Reid v. Ga.-Pacific Corp., 212 AD 462 (1st Dep’t 1995). Thus, plaintiff has provided evidence of causation stating that asbestos fibers cause mesothelioma. Lastly, the Watts defendants rely upon the recent Court of Appeals case of Nemeth v. Brenntag North America & Co., et. al, decided on April 26, 2022, to further support their motion for summary judgment. However, such decision does not apply here. The Watts defendants’ confuse plaintiffs burden at trial with their own burden, as moving defendants, on a motion for summary judgment. The Court of Appeals in Nemeth held that the Nemeth plaintiffs proof, after the conclusion of a trial which reached a jury verdict, “failed to demonstrate [plaintiffs] level of exposure to asbestos in a manner that established causation” and was insufficient to support the jury verdict. Nemeth v. Brenntah North America, 2022 WL 1217464, supra. Here, the instant action has not reached that point. No jury trial has occurred in this case. Plaintiff, a living litigant suffering from mesothelioma is awaiting his day in court, within his lifetime, to lay bare his proof for the jury without further delay. In front of the Court now is only the Watts defendants’ motion for summary judgment, the standard of which is well settled. As such, the Watts defendants’ reliance on Nemeth is misplaced. As the Watts defendants’ failed to meet its initial burden for summary judgment, their motion is denied. Turning to plaintiffs cross-motion for sanctions, the Court notes that both of the Watts defendants’ motions to dismiss for lack of personal jurisdiction have been denied by this Court. Thus, the Special Masters’ discovery orders were valid, as was the Court’s discovery order. As such, the Watts defendants’ arguments that the Court does not have jurisdiction to issue orders compelling discovery is mistaken. A review of the long history of litigation with the Watts defendants in this action reveals a pattern of litigation conduct intended to prolong discovery and delay the trial in this action where plaintiff is seeking his day in court within his lifetime. The Watts defendants filed their answer and appeared in this action on July 31, 2020. Despite appearing in this action, the Watts defendants chose to ignore the CMO and failed to provide any discovery, let alone the basic asbestos discovery, as required by the CMO for over a year. In fact, despite the Watts defendants’ insistence that the Court did not have personal jurisdiction over them, they waited for over a year to make a motion to dismiss for lack of personal jurisdiction. Plaintiffs response to interrogatories was dated May 28, 2020 and plaintiffs deposition began on June 23, 2020 and concluded on August 5, 2020, at which the Watts defendants appeared. Thus, moving defendants had all the evidence necessary to make their motions, but chose to wait a year prior to filing. In fact, no discovery was exchanged by the Watts defendants within that year even after admittedly having received several discovery requests, and no action was taken by them to assert their numerous claims. At this juncture, the Court must address the Watts defendants’ assertion that discovery was stayed due to their jurisdictional and summary judgment motions pursuant to CPLR §3214. CPLR §3214 states that “[s]ervice of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise.” (emphasis added). In NYCAL litigation, the CMO is abundantly clear, and explicitly states, that “[w]here this CMO’s provisions differ from the CPLR’s, the CMO shall control.” CMO, VI., Rules of Procedure. The CMO is clear that the Special Master supervises discovery such as the adequacy of discovery responses, production of documents, the completion of depositions, and other discovery disputes that may arise. See id. at III. B. Special Master Duties. Thus, the Watts defendants’ argument that discovery was automatically stayed upon their filing of a motion to dismiss fails. Rather, the Special Master determines the production of documents even if any such motion is filed, and the Special Master’s discovery order will be ruling. Here, after much back and forth regarding discovery, the Special Master ordered the Watts defendants, on October 18, 2021, to respond to all discovery requested. Thus, as per the CMO, which controls, a valid order of discovery was issued. Following such valid discovery order, the Watts defendants filed an order to show cause to the Court for a protective order. This Court declined to sign such application for failing to comply with the CMO which is undisputedly controlling in NYCAL litigation. The Watts defendants then moved to reargue the Court’s declination to sign. Such motion to reargue was denied and the Watts defendants were ordered to provide all the ordered discovery within 30 days. Thus, a second valid discovery order was issued. The history of this case cannot be ignored. After having paid dormant in this action for over a year, without having provided any basic discovery and just as the note of issue was filed signifying that this action was ready for trial, the Watts defendants’ litigation strategy was set in motion and a flurry of motions were suddenly filed. First, moving defendants filed two motions, which were subsequently denied, to dismiss for lack of personal jurisdiction and erroneously argued that such motions stayed discovery. Notably, even if such argument is true, which it is not, the Watts defendants had over one year to produce discovery prior to any motions being filed. Shortly thereafter, the Watts defendants proceeded to file a motion for forum non conveniens (which was subsequently denied), an order to show cause for a protective order and motion to reargue as mentioned above (both of which were denied), an unsuccessful appeal of this Court’s declination to sign such order to show cause for a protective order, a choice of law motion seeking to apply New Hampshire law (which was subsequently denied), the instant motion for summary judgment, and an order to show cause to stay the trial. Following the submission of this motion, the Watts defendants produced discovery to plaintiff which, plaintiffs argue are inadequate to respond to the basic discovery demands. Now, to date, the Watts defendants have failed to produce the basic discovery as required by the CMO and as ordered by two valid discovery orders. This behavior and course of conduct chosen by the Watts defendants is more than mere zealous advocacy. Rather, it evidences conduct undertaken for the sole purpose of delaying discovery and delaying this trial, which is scheduled as a final trial date on May 16, 2022. Pursuant to 22 NYCRR §130-1.1(a), “the court, in its discretion, may award to any party or attorney in any civil action…before the court,…costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys’ fees, resulting from frivolous conduct as defined in this Part.” Part 130 further states that “conduct is frivolous if…(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another…. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party.” Id. at (c). Such statute states that “[t]he court…may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both.” Id. at (b). Here, the Watts defendants should have known that failure to comply with discovery pursuant to the CMO lacked any legal or factual basis. However, despite the clear language of the CMO, the Watts defendants chose to ignore all discovery requests for over a year and then proceed on this course of conduct blindly insisting that nothing was to be done as the Court did not have personal jurisdiction over them. Even after this Court explicitly ordered them to respond to all basic discovery demands, the Watts defendants unilaterally limited discovery responses in contravention of the CMO and in violation of the Special Master’s discovery order as well as in violation of the Court’s discovery order. Having delayed discovery for over a year and having moved unsuccessfully on six (6) separate motions and one (1) unsuccessful appeal, the Watts defendants are still, on the eve of trial, attempting to flout the Court’s orders and fail to comply with the CMO. Such pattern of behavior can only be seen as frivolous conduct intended to delay this action. Furthermore, sanctions are unambiguously permitted by the CMO which states that ‘[f]ailure to meet a deadline in accordance with the applicable discovery order, unless excused by the Special Master in writing within ten days of the deadline for good cause shown, may result in sanctions as provided in Section XIX below.” CMO, XV. E. Failure to Adhere to Discovery Deadlines. Section XIX of the CMO, Discovery Sanctions, states that “[a]ny failure to comply with a deadline in a discovery order issued by the Special Master…shall be deemed to be a willful failure to disclose within the meaning of CPLR 3126. Sanctions may include, but not be limited to, removal from a Cluster, preclusion of witnesses, and the striking of pleadings.” However, the Court is mindful that this Court’s interest in maintaining the integrity of court orders must be balanced with the well settled preference of deciding matters on the merits. Thus, plaintiffs cross-motion for sanctions is granted to the extent that the Watts defendants are ordered to produce all of the basic NYCAL discovery requested by plaintiff and as previously ordered by the Special Master as well as this Court on or before May 13, 2022. Failure to comply shall result in the preclusion of the Watts defendants in proffering any witnesses at trial or proffering any evidence at trial without further motion practice. Moreover, as the Watts defendants’ deliberate behavior throughout this action has been frivolous and intended to delay discovery and the trial, defendant Watts Water Technologies, Inc. is ordered to pay ten thousand ($10,000.00) in costs and fees to plaintiff, defendant Watts Regulator Co. is ordered to pay $10,000.00 in costs and fees to plaintiff, and Segal McCambridge Singer & Mahoney, Ltd. is ordered to pay $10,000.00 in costs and fees to plaintiff, within 21 days. Accordingly, it is ORDERED that the Watts defendants’ motion for summary judgment seeking dismissal of the instant action is hereby denied in its entirety; and it is further ORDERED that plaintiffs cross-motion for sanctions is granted to the extent that conditional preclusion is granted against the Watts defendants as detailed above; and it is further ORDERED that plaintiffs cross-motion for sanctions is further granted to the extent that defendant Watts Water Technologies, Inc. is ordered to pay $10,000.00 in costs and fees to plaintiff within 21 days; and it is further ORDERED that defendant Watts Regulator Co. is ordered to pay $10,000.00 in costs and fees to plaintiff within 21 days; and it is further ORDERED that Segal McCambridge Singer & Mahoney, Ltd. is ordered to pay $10,000.00 in costs and fees to plaintiff within 21 days; and it is further ORDERED that within 3 days of entry, plaintiff shall serve a copy of this Decision/Order upon all parties with notice of entry. This constitutes the Decision/order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: May 9, 2022
