NEW YORK (Legal Newsline) - Special Master Shelley Rossoff Olsen made two recommendations regarding which cases would be included in the New York County Asbestos Litigation's docket, approving one and denying the other.
According to the Pulsinelli recommendation from April 29, Olsen wrote that she found sufficient nexus to New York City for including the case in the NYCAL docket.
Plaintiff Dean Pulsinelli was allegedly exposed to asbestos from helping his father, Joseph, clean up at the Texaco auto body shop where is father worked.
At the time of the alleged exposure, the auto body shop, called "Accurate" was located in either Queens County or Nassau County.
Pulsinelli's father testified that the body shop was about 10 miles away from their home in Springfield Gardens, N.Y., which is located in Queens.
He testified that he was "pretty sure it was in Queens, but I really don't know where it was."
Pulsinelli's father also described the auto body shop's location as two towns west of Valley Stream, N.Y., which would locate it in Queens and would provide the necessary nexus to New York City required for inclusion in the NYCAL docket.
However, Olsen's second recommendation was based on a New York City resident's asbestos exposure in another country.
According to the Bohlmann recommendation from April 30, Olsen wrote that although plaintiff Valrie Bohlmann died as a New York City resident, that does not provide enough nexus to include her case in the extremis docket.
The defendants sought to prevent the case from being included in NYCAL's extremis docket, claiming the decedent's alleged asbestos exposure and diagnosis occurred entirely outside New York City. They further argued that the mere fact that she was a New York City resident at the time of her death is insufficient to create nexus.
Bohlmann's only alleged asbestos exposure occurred in South Africa before she moved to the U.S. in 1972. She lived in California from 1972 to 2003 before moving to New York.
However, the plaintiffs argued that it is "preposterous" to exclude a New York City resident from the NYCAL extremis docket, adding that they are unaware of a single NYCAL case in which a resident was excluded because the plaintiff's exposure occurred elsewhere.
Olsen concluded that arguments from both parties are beside the point.
She adds that Bohlmann's right to a trial preference in NYCAL is at issue here.
"There is no question that her estate can bring an action in New York City, because her husband still resides here. But the question which may, in fact, be one of first impression in NYCAL, is whether residency alone can provide a sufficient nexus to New York City for in extremis purposes? I find that it cannot," she wrote.
Olsen agreed with the plaintiff that the various forum decisions the defendants rely upon turn on an analysis of exposure to determine whether this nexus is appropriate for non-resident plaintiffs.
However, that does not mean a nexus can be established with no New York City exposure.
"While previous forum decisions generally have addressed the question of when a non-resident may be included in NYCAL's in extremis docket, this decision holds that a resident can be excluded," she concluded.
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