Barbarino v. BASF Catalysts, LLC (2016)

Our plain-English summary of Barbarino v. BASF Catalysts, LLC (New York Supreme Court, May 5, 2016).

Joan Barbarino sued individually and as executrix of her late husband Roy Barbarino's estate. He worked as a New York City Transit Authority bus body mechanic and was diagnosed with mesothelioma in 2014. She moved for a default judgment against R.C.A. Rubber Company, which never responded or appeared. A co-worker testified that he and Barbarino cut and replaced black and white speckled rubber flooring on buses, which created dust. Transit Authority specifications named RCA 'Tara Floor' flooring. A 1975 invoice from Union Carbide to RCA bore the logo 'Calidria Asbestos', which plaintiff offered to show RCA bought asbestos for its products. Plaintiff said she served RCA, an unauthorized foreign corporation, under Business Corporation Law section 307 and sent the additional notice CPLR 3215 requires. The court granted the motion on liability and referred damages to a special referee. Plaintiff had proposed a $2,100,000 judgment but did not ask for a specific amount. A footnote said Daimler did not affect long-arm jurisdiction under CPLR 302.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: May 5, 2016
• Citation: 2016 NY Slip Op 30840(U)
• Docket: Docket No. 190072/14
• Stage: Other
• State: New York

Outcome. The court granted plaintiff Joan Barbarino's motion for a default judgment on liability against R.C.A. Rubber Company, which never appeared, and referred the amount of damages to a special referee.

What the court held. Where a served defendant never responded or appeared and the plaintiff submitted the CPLR 3215 proof, a default judgment on liability is granted and damages are referred to a special referee. The court noted that Daimler did not affect long-arm jurisdiction under CPLR 302, the plaintiff's stated basis for jurisdiction.

Issues decided: Personal Jurisdiction, Trial Procedure and Discovery.

The people and their exposure

• Roy Barbarino: mesothelioma; died

The defendants

• R.C.A. Rubber Company (manufacturer)
• BASF Catalysts, LLC

Mines named here

Asbestos mines this opinion is about. Each mine's page says who ran it, when it worked, and what it produced.

• Santa Rita mine, Joaquin Ridge near Coalinga, California

All asbestos mines

Amounts in the opinion

• $2,100,000 (other)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2016 NY Slip Op 30840(U)

JOAN BARBARINO, individually and as Executrix of the Estate of ROY BARBARINO, deceased

Plaintiff,

v.

BASF CATALYSTS, LLC et al., Defendants.

Docket No. 190072/14.

May 5, 2016.

Supreme Court, New York County.

PETER H. MOULTON, Judge.

Plaintiff, whose deceased husband was employed by the New York City Transit Authority as a transit bus body mechanic, was diagnosed with mesothelioma in 2014. Plaintiff moves for a default judgment against R.C.A. Rubber Company ("RCA") pursuant to CPLR § 3215. While plaintiff does not ask for a specific amount of damages, she attaches a proposed judgment in the amount of $2,100,000. Alternatively, plaintiff seeks a default on liability and an inquest on damages. To support the motion, plaintiff submits the deposition testimony of Roy Barbarino's co-worker, Robert Pustarfi (Ex J). Pustarfi testified that he worked with Barbarino cutting black and white speckled rubber flooring on buses. He described dust emanating from their work pulling up carpet, ripping up the rubber flooring, and applying body filler. Pustarfi also testified that both men replaced the old black and white speckled rubber flooring with new black and white speckled rubber flooring, which they obtained from a storeroom. He further testified that the rubber came in large rolls, packaged in brown paper bags. Plaintiff cites Exhibit L (New York City Transit Authority's bus specifications) to demonstrate that RCA supplied the rubber floors. The second attached page is denominated "Floor Covering." It references an "RCA or approved equal" product under the heading "Underseat Areas." It also references "ribbed rubber safety floor covering" which "shall be white confetti RCA `Tara Floor' 518 or approved equal" under the heading "Aisle." Plaintiff cites Exhibit M, a 1975 invoice from Union Carbide to RCA, bearing the logo "Calidria Asbestos" to demonstrate that RCA purchased asbestos for its products. Plaintiff further asserts that she served RCA, an "unauthorized foreign business corporation" with the Fifth Amended Complaint on March 30, 2015 and April 15, 2015 (Ex E).[1] The Fifth Amended Complaint alleges that RCA "is a duly organized corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences with the State of New York" (Ex C).[2] The affidavit of service (Exhibit E) reflects service on RCA pursuant to BCL § 307. Plaintiff attaches the affidavit of Regenia Hyman regarding her mailing of the Supplemental Summons and Fifth Amended Complaint for "190728 778 US" and the corresponding signed certified/registered mail receipt for "Article Number RE 190 728 778 US" (Exs E and F). Plaintiff also attaches a CPLR 3215 (g) (4) (i) additional notice sent by certified/registered mail under Article Number 7015 0640 0000 9664 9568 and the tracking result for that article (Exs I and J). However, defendant never responded or appeared.

The motion is granted on liability. The issue of damages shall be referred to a special referee to hear and report. It is hereby

ORDERED that the motion for a default judgment is granted on liability; and it is hereby

ORDERED that the issue of the amount of damages shall be referred to a special referee to hear and report; and it is further ORDERED that a copy of this Decision and Order shall be served on defendant with notice of entry at least 30 business days prior to the hearing before the Special Referee; and it is further

ORDERED that plaintiff shall move to confirm and/or reject the report of the Special Referee.

This Constitutes the Decision and Order of the Court.

[1] The court takes judicial notice of defendant's website indicating that defendant is an Ohio corporation and a "leader in fabricating sheet rubber transit floors, entrance plates and step treads since the 1950s." The website also reflects that its rubber is used on trains and buses. [2] After Daimler AG v Bauman 134 S Ct. 746 (2014), doing business "continuously and systematically" was no longer enough for presence jurisdiction under CPLR § 301 (absent exceptional circumstances). However, Daimler had no affect on long arm jurisdiction under CPLR § 302, which is plaintiff's stated basis for jurisdiction (see Fifth Amended Complaint).

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites