Kirby v. David Fabricators OF NY, Inc. (2025)

Our plain-English summary of Kirby v. David Fabricators OF NY, Inc. (New York Supreme Court, Appellate Division, March 6, 2025).

David R. Kirby sued David Fabricators of N.Y., Inc. in New York. He worked as a cook in pizza restaurants from the 1960s to the 1980s and alleges he developed mesothelioma from asbestos coming from transite stone boards that the defendant supplied and that were associated with pizza ovens made by Bakers Pride Oven Company. Kirby had earlier sued Bakers Pride in Illinois, and that case was dismissed with prejudice after a settlement. David Fabricators moved to dismiss, arguing the new suit was barred by res judicata and that Bakers Pride was a necessary party who could not be joined because of the settlement. The trial court denied the motion. The Appellate Division affirmed. It held that res judicata did not apply because David Fabricators was not a party to the Illinois case and was not in privity with Bakers Pride, an alleged joint tortfeasor. A suggestion that the two might have an indemnification relationship did not show privity. The court also held that joint tortfeasors are not necessary parties. The case continues against David Fabricators.

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, Appellate Division, 1st Dept.
• Decided: March 6, 2025
• Citation: 2025 NY Slip Op 01293
• Stage: Appeal from motion to dismiss
• State: New York

Outcome. The Appellate Division affirmed the denial of David Fabricators' motion to dismiss, so plaintiff Kirby's mesothelioma action against it continues.

What the court held. A prior dismissal with prejudice of a settled action does not bar a later suit against a defendant who was not a party to it and was not in privity with the settling party, an alleged joint tortfeasor. Joint tortfeasors are not necessary parties under CPLR 1001(a).

Issues decided: Fault, Apportionment and Settlement Credits, Trial Procedure and Discovery, Settlements and Releases.

The people and their exposure

• David R. Kirby: mesothelioma

The defendants

• David Fabricators of N.Y., Inc. (supplier)

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.

2025 NY Slip Op 01293

DAVID R. KIRBY, Plaintiff-Respondent,

v.

DAVID FABRICATORS OF N.Y., INC., Defendant-Appellant.

Index No. 190055/22, Appeal No 3831, Case No. 2024-00594.

Decided March 6, 2025.

Appellate Division of the Supreme Court of New York, First Department.

Appeal from the Supreme Court, New York County (Adam Silvera, J.), entered on or about January 10, 2024. The Cook Group, PLLC, New York (Alysa B. Koloms of counsel), for appellant.

Maune Raichle Hartley French & Mudd, LLC, New York (Joshua E. McMahon of counsel), for respondent.

Before: Kern, J.P., Mendez, Rodriguez, Pitt-Burke, Higgitt, JJ.

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about January 10, 2024, which denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

In this asbestos action, plaintiff, who worked as a cook in pizza restaurants from the 1960s to the 1980s, alleges that he contracted mesothelioma as a result of his exposure to asbestos emanating from transite stone boards supplied by defendant and associated with pizza ovens manufactured by nonparty Bakers Pride Oven Company, LLC. Plaintiff previously brought an action against Bakers Pride in Illinois that was dismissed with prejudice after the parties entered into a settlement agreement. Defendant moved to dismiss this action pursuant to CPLR 3211(a)(5) on the ground that it is barred by res judicata and pursuant to CPLR 1001 and 1003 on the ground that Bakers Pride is a necessary party that cannot be joined because of the settlement of the Illinois action.

A dismissal with prejudice or an order of discontinuance effectuating a settlement is generally afforded res judicata effect (see Matter of People v. Applied Card Sys., Inc., 11 NY3d 105, 122 [2008], cert denied 555 US 1136 [2009]). However, the doctrine of res judicata does not bar plaintiff from bringing this action against defendant because defendant was neither a party to the Illinois action nor in privity with Bakers Pride, an alleged joint tortfeasor (see Rojas v. Romanoff, 186 AD3d 103, 108 [1st Dept 2020]; Blue Sky, LLC v. Jerry's Self Stor., LLC, 145 AD3d 945, 947 [2d Dept 2016]). Defendant's suggestion that there may be an indemnification relationship between defendant and Bakers Pride does not satisfy its burden of demonstrating privity (see Sunoco, Inc. v. Home Ins. Co., 300 AD2d 19, 20 [1st Dept 2002]).

The court also properly rejected defendant's argument that Bakers Pride is a necessary party under CPLR 1001(a). It is well settled that "joint tortfeasors are not necessary parties to an action" (Hasenzahl v. 44th St. Devel. LLC, 203 AD3d 602, 603 [1st Dept 2022]; see Amsellem v. Host Marriott Corp., 280 AD2d 357, 360 [1st Dept 2001]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT.

Sources

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