The 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
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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
190014/2024 HICKEY, RAYMOND ET AL vs. 3M COMPANY ET AL Page 1 of 6
Motion No. 001
1 of 6
[* 1]
INDEX NO. 190014/2024
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 10/09/2024
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,
190014/2024 HICKEY, RAYMOND ET AL vs. 3M COMPANY ET AL Page 2 of 6
Motion No. 001
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INDEX NO. 190014/2024
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 10/09/2024
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
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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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Motion No, 001
3 of 6
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INDEX NO. 190014/2024
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 10/09/2024
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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Motion No. 001
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INDEX NO. 190014/2024
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 10/09/2024
(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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Motion No. 001
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INDEX NO. 190014/2024
NYSCEF DOC. NO. 143 RECEIVED NYSCEF: 10/09/2024
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
190014/2024 HICKEY, RAYMOND ET Al vs. 3M COMPANY ET AL Page 6 of 6
Motion No .. 001
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