Horvath v. Acf Indus., LLC (2014)

Our plain-English summary of Horvath v. Acf Indus., LLC (New York Supreme Court, March 5, 2014).

Ralph Horvath, diagnosed with mesothelioma in July 2012, and his wife Loretta sued about 50 defendants in New York County. They claimed his asbestos exposure caused his illness. Against CSX Transportation, they alleged under the Federal Employers' Liability Act that he was exposed while working for CSX in Michigan in the 1950s and 1960s as a clerk, car checker and signal inspector. Mr. Horvath also testified that, as a signal engineer for General Railway Signal, he was exposed over several months to asbestos from wires, cables and signal components on New York City subway projects. CSX asked the court to dismiss the case as an inconvenient forum, noting that the plaintiffs live in South Carolina, his doctors are in Georgia, and its own employment of him was in Michigan. The court denied the motion. It noted the many defendants, several based in New York, and CSX's Bronx office. Nothing showed that Horvath family members could not travel to testify. CSX did not show that South Carolina or Michigan had comparable asbestos calendars, or offer expert proof that the New York exposure was insignificant. CSX did not meet its heavy burden.

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: March 5, 2014
• Citation: 2014 NY Slip Op 30565(U)
• Docket: Docket No. 190220/2013, Motion Seq. 001
• Stage: Jurisdiction, venue or removal
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court denied defendant CSX Transportation's motion to dismiss on forum non conveniens grounds, so the plaintiffs' case stays in New York County.

What the court held. A forum non conveniens movant bears a heavy burden of showing the plaintiff's chosen forum is inappropriate, and that burden was not met where there were many defendants, some based in New York, and the plaintiff testified to months of asbestos exposure in New York City.

Issues decided: FELA Railroad Claims, Venue, Removal and Transfer.

The people and their exposure

• Ralph Horvath: mesothelioma

The defendants

• CSX Transportation, Inc. (railroad)
• ACF Industries, LLC

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.

2014 NY Slip Op 30565(U)

RALPH HORVATH and LORETTA HORVATH, Plaintiffs,

v.

ACF Industries, LLC, etal., Defendants.

Docket No. 190220/2013, Motion Seq. 001.

March 5, 2014.

Supreme Court, New York County.

DECISION & ORDER

SHERRY KLEIN HEITLER, Judge.

In this asbestos personal injury action, defendant CSX Transportation, Inc. ("CSX") moves to dismiss the complaint pursuant to CPLR 327[1] on the ground that New York is an inconvenient forum. As more fully set forth below, the motion is denied. Plaintiff Ralph Horvath was diagnosed with mesothelioma on or about July 23, 2012. On June 20, 2013 Mr. Horvath and his wife Loretta Horvath commenced this action to recover for personal injuries allegedly caused by his exposure to asbestos-containing products. Plaintiffs designated New York County as the venue of this action based on Mr. Horvath's alleged exposure to asbestos in New York City and on the ground that New York County is the principal place of business of several of the defendants herein. Plaintiffs' allegations concerning CSX recite that it violated the Federal Employer's Liability Act (45 USC § 51, et seq.) by negligently exposing Mr. Horvath to asbestos while he worked for CSX as a clerk, car checker, and signal inspector in Michigan during the 1950's and 1960's. At the time this motion was brought, an exchange of interrogatories had not been completed nor had Mr. Horvath been deposed by any of the parties.

In its moving papers, CSX asserts that there is no substantial connection between this action and New York County inasmuch as plaintiffs reside in South Carolina, Mr. Horvath's medical providers reside in Georgia, and insofar as CSX is concerned, all of Mr. Horvath's asbestos exposures occurred in Michigan.[2] Plaintiffs submit an opposing affidavit by Mr. Horvath in which he states among other things that during the 1960's and 1970's he worked as a signal engineer for General Railway Signal in Rochester, New York, and that he was exposed to asbestos on a job in the New York City subway system which lasted between three and four months.[3] At the court's suggestion the parties waited for depositions to conclude before further pursuing this motion.

Mr. Horvath has since been deposed.[4] The transcripts of his deposition have been e-filed with the court. Among other things Mr. Horvath testified to experiencing significant occupational asbestos exposure over the course of many months from wires, cables, and system signal components while working on a subway automation project in New York County and while performing flood inspections and repairs of a subway tunnel near 89th street in New York County.

CSX and plaintiffs supplemented their arguments on the motion by letter briefs dated December 9, 2013 and December 17, 2013, respectively. In this context CSX argues that plaintiffs' case should be dismissed because Mr. Horvath was not employed by CSX while he worked in New York City and because his allegations of asbestos exposure in New York City are de minimis at best.

Under the doctrine of forum non conveniens a court may dismiss an action when it finds that "in the interest of substantial justice the action should be heard in another forum." CPLR 327. The doctrine is "flexible," and requires the balancing of many factors bearing on the particular case. National Bank & Trust Co. v Banco de Vizcaya, S.A., 72 NY2d 1005, 1007 (1988). These factors include: (i) the residency of the parties; (ii) the jurisdiction in which the underlying transaction occurred; (iii) the location of relevant documents and witnesses; (iv) the availability of a suitable forum; and (v) the interest of the alternative forum in deciding the issues. "No one factor is controlling." Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 (1984). Indeed "the great advantage of the rule of forum non conveniens is its flexibility based upon the facts and

circumstances of each case." Id. The overall issue is whether there is a "substantial nexus" between the plaintiff's action and the State of New York. Id. at 483.

The facts and circumstances of this case do not support dismissal on forum non conveniens grounds. As plaintiffs point out, this litigation involves almost 50 defendants. While plaintiffs do not reside in New York County, several of the defendants do, and there is nothing to indicate that any of the Horvath family members are unable to travel to New York to testify or that plaintiffs intend to call any of Mr. Horvath's physicians at trial. Moreover, CSX, which has an office in the Bronx, cannot seek dismissal of this case on the mere fact that it employed Mr. Horvath only in Michigan. There is nothing on this motion to show that South Carolina or Michigan, which CSX suggests are more suitable forums, either maintain active asbestos calendars, or in the case of mesothelioma patients, accelerated calendars as found in NYCAL.

In the face of Mr. Horvath's testimony of his months of asbestos exposure in New York City's subway system, CSX's de minimis allegations are similarly unsupported and conclusory. CSX has not submitted any expert testimony to show that such exposure could not have caused or contributed to Mr. Horvath's injuries.

The Court of Appeals has described the undertaking of a forum non conveniens motion as a "heavy burden of demonstrating that the forum chosen by [the plaintiff] is an inappropriate one. . . ." Banco Ambrosiano, S.p.A. v Artoc Bank & Trust, Ltd., 62 NY2d 65, 74 (1984). On this record, the defendant's heavy burden has not been met.

Accordingly, it is hereby

ORDERED that CSX Transportation, Inc.'s motion to dismiss is denied in its entirety.

This constitutes the decision and order of the Court.

[1] CPLR 327(a) provides that "[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action." [2] CSX asserts alternatively that the venue of this action should be changed to another county within New York State because Mr. Horvath never lived or worked in New York City. As discussed herein, this argument is without merit.

[3] Mr. Horvath's affidavit, sworn to August 22, 2013, is submitted as exhibit A to plaintiffs' opposition papers. [4] Mr. Horvath's deposition took place over six days in September and October of 2013.

Sources

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