In re Seventh Judical Dist. Asbestos Litigation1/12/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The Plaintiff, in this action, claims that the decedent, Thomas P. Gerhart, suffered personal injury and death as the result of being exposed to asbestos products from the 1940s through the 1980s. The Complaint names and identifies a number of Defendants, who allegedly sold, distributed, and/or otherwise are responsible for such exposure, including Hahn Automotive Warehouse, Inc., (hereinafter referred to as "Hahn") and also an entity identified as "Finn's Auto Parts." In essence, the claim against these Defendants is based upon purchases, by decedent, of replacement brakes for several trucks he used in connection with a drilling business, and in support thereof, invoices from the 1960s have been produced, containing the name "Finn's Auto Parts Center." The Defendant, Finn's Auto Parts, is not a separate legal entity, but rather, the d/b/a of an auto parts store previously operated by Finn of Canandaigua, Inc. On May 1, 1997, Hahn entered into an asset purchase agreement with Finn of Canandaigua, Inc., involving Finn's Auto Parts, and this forms the basis for the claim against Hahn on a theory of successor liability.
Hahn has now made a motion for summary judgment, pursuant to CPLR 3212, to dismiss the Complaint, which contains causes of action based upon claims of negligence, failure to warn, breach of warranty, and product liability. This Defendant contends that, under existing New York law, liability should not be imposed against them for the previous sale, by Finn's Auto Parts, of brake products, which allegedly resulted in the decedents exposure to asbestos. The facts, for the most part, are not subject to dispute, insofar as relevant to a determination of this motion.
A review of the asset purchase agreement, dated May 1, 1997, discloses that Hahn acquired all of the fixed assets, inventory of automotive parts and supplies, good will, list of customers, "and related files and such records as are reasonably necessary for the continuation of the business" of Finn's Auto Parts. In addition, the purchaser received permission to use the name "Finn's Auto Parts," and the seller agreed to thereafter discontinue use of the name. The conditions of closing included the negotiation of a satisfactory lease for the property, at which Finn's Auto Parts had been located, entering into an employment agreement with a store employee, and the execution of a covenant not to compete by the sole shareholder of Finn of Canandaigua, Inc. However, under the asset purchase agreement, the purchaser did not assume any liabilities of the seller.
The affidavit of Hahn's vice president of finance was submitted in support of the motion for summary judgment. This affidavit establishes that, following the asset purchase, Hahn began to operate Finn's Auto Parts in the same manner as other stores, which were owned by the corporation, by catering to installers, as opposed to the general public. In addition, Hahn replaced the prior store supervisor, used its own invoices, and after several years, moved to a new location.
There was no exchange of stock involved in the asset purchase, and the sole shareholder of Finn of Canandaigua, Inc., neither acquired any interest in Hahn nor was he involved in the operation of Finn's Auto Parts after May 1, 1997. Based upon the covenant not to compete, the Court will assume, for purposes of this motion, that the corporate entity, Finn of Canandaigua, Inc., did not conduct any business and was inactive following the sale of Finn's Auto Parts. However,
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