Supreme Court, Queens County, September 25, 2019

DLA Piper LLP, New York City, for The Goodyear Tire & Rubber Company, third-party defendant.

Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York City, for Ford Motor Company, third-party defendant.

Marshall Dennehey Warner Coleman & Coggin, New York City, for defendant/third-party plaintiff.

Certain & Zilberg, PLLC, New York City, for Jose Aybar, plaintiff.

Omrani & Taub, P.C., Brooklyn, for Orlando Gonzales and others, plaintiffs.

On the separate motions by third-party defendant The Goodyear Tire & Rubber Company for an order, pursuant to CPLR 3211 (a) (7) and (8), dismissing the third-party complaint for failure to state a cause of action and lack of general or specific personal jurisdiction, and by third-party defendant Ford Motor Company, pursuant to CPLR 3211 (a) (8), for an order dismissing the third-party complaint for lack of general or specific personal jurisdiction; and on the cross motion by defendant/third-party plaintiff US Tires and Wheels of Queens, LLC, for an order amending its complaint and staying the action pending a decision on the appeals in the companion cases before the Court of Appeals regarding personal jurisdiction, the motions and cross motion are determined as follows:

This action arises out of an automobile accident allegedly caused by a defective tire designed and manufactured by third-party defendant The Goodyear Tire & Rubber Company, and a defectively designed and manufactured Ford Explorer, designed and manufactured by third-party defendant Ford Motor Company. Plaintiff alleges that he [*3]brought the tires to defendant{**65 Misc 3d at 934}/third-party plaintiff US Tires and Wheels of Queens, LLC, and asked that they be inspected, tested, and, if found to be safe, installed upon plaintiff Aybar's vehicle. Plaintiff Jose Aybar purchased his Ford Explorer in New York State. The vehicle was registered and predominantly used in the State of New York. The tire(s) was purchased and installed in New York. The driver and all the occupants were residents of New York. While traveling through Virginia, the aforesaid tire exploded, the Ford Explorer flipped over, and, tragically, of the six occupants in the vehicle, three perished and three were seriously injured.

In the companion cases, Aybar v Aybar and Aybar v Aybar, Goodyear and Ford brought separate motions in Supreme Court, Queens County, seeking to dismiss the complaint against each of them, respectively, on the grounds of lack of general jurisdiction. The Honorable Thomas D. Raffaele, pursuant to the orders dated May 25, 2016 (Aybar v Aybar, 2016 NY Slip Op 31138[U] [Sup Ct, Queens County 2016]; Aybar v Aybar, 2016 NY Slip Op 31139[U] [Sup Ct, Queens County 2016]), found the defendants subject to general jurisdiction; however, those decisions were subsequently reversed on appeal by the Appellate Division, Second Department, on January 23, 2019 (169 AD3d 137 [2d Dept 2019]). In a footnote to the decision, the Appellate Division, Second Department, stated it was not making a determination regarding specific jurisdiction as the plaintiffs neither presented that issue for argument nor was defendant/third-party plaintiff US Tires a party to those motions and had no significant opportunity to defend.

Ever since the sweeping decision by the Supreme Court of the United States in Daimler AG v Bauman (571 US 117 [2014]), the constitutional limitation upon state general jurisdiction requires that for a nonresident or foreign corporation to be subject to jurisdiction for all purposes it must have such continuous and systematic business contacts within the forum state as to be considered "at home." Less clear than the stated threshold is the manner in which a court weighs the various factors involved in ascertaining whether the foreign corporation has been shown to have met this standard. In the aforementioned companion cases, the Appellate Division has determined that defendants Ford and Goodyear are not subject to the general jurisdiction of the State of New York as the extent of their contacts here do not rise to the level of being "at home" (see Aybar v Aybar, 169 AD3d 137 [2d Dept 2019]). Here,{**65 Misc 3d at 935} defendant/third-party plaintiff has not sufficiently raised any additional issues of fact or factors to be considered requiring jurisdictional discovery. As to the ruling on general jurisdiction, this court is currently constrained to adhere to the determination by the Appellate Division, Second Department, subject to the appeal pending before the Court of Appeals of the State of New York.

Turning to specific jurisdiction, it must be ascertained whether third-party defendants fall within the reach of New York's long-arm jurisdiction statute, CPLR 302. After review, it appears that the pertinent portion of the statute is within CPLR 302 (a) (1), thereby requiring a determination as to (1) whether third-party defendants transacted business in New York, and, if so, (2) whether there is an arguable nexus or substantial relationship between the business transacted and the claim asserted (see Rushaid v Pictet & Cie, 28 NY3d 316 [2016]; Licci v Lebanese Can. Bank, SAL, 20 NY3d 327 [2012]; Fischbarg v Doucet, 9 NY3d 375 [2007]). Causation is not a requirement but merely a relatedness such that the legal claim is not completely unmoored from the former, regardless of the ultimate merits of the claim (see Rushaid, 28 NY3d 316; Licci, 20 NY3d 327). It is only required that the claim, in some arguable way, be connected to the transaction (id.).

It is undisputed that both Ford and Goodyear have considerable financial and business contacts and dealings in the State of New York and have had these contacts for a lengthy period of time. Although quite extensive, the Appellate Division, Second Department, ruled these [*4]contacts did not rise to the level of rendering both Ford and Goodyear "at home" in the State of New York. However, it is without question that these contacts satisfied the first prong of the long-arm statute, in that both third-party defendants transact business within the State of New York (see McGowan v Smith, 52 NY2d 268 [1981]).

With regard to the second prong, although the products at issue herein were manufactured out of state by third-party defendants, the nature of their businesses within New York State include, but are not limited to, marketing, promoting, advertising, sales, and servicing (either through corporate owned entities or independent contractors or dealers under contract) of their products. These business activities are directly targeted at the New York market, consisting of millions of resident drivers. Ford and Goodyear manufacture these vehicles and tires outside the state, but sell these vehicles and tires throughout{**65 Misc 3d at 936} New York State, nationally, and internationally. More specifically, both third-party defendants locate themselves throughout New York State, around the country, and the world for these purposes. Here, in the State of New York, as aforesaid, they each have numerous wholly owned or contractual relationships with independent dealers who sell their products, both new and used, to residents of New York. Both spend considerable capital on sophisticated marketing, advertising and promotional programs to sell their products and enhance their brand names in New York State. It is certainly foreseeable and anticipated by these parties that their goods and products are a large part of the used car and tire markets in the State of New York. In addition to the vast business and financial dealings by third-party defendants here in New York, both parties are registered and authorized to do business in New York.

In McGowan (52 NY2d 268), a fondue pot purchased in Buffalo, New York, manufactured by a Japanese company, exploded in Canada. A third-party action was brought against the Japanese manufacturer in New York. The Court determined that several visits to New York State by a representative of the Japanese company was insufficient to be characterized as purposeful activities within the state, so that specific jurisdiction under CPLR 302 (a) (1) was denied. Here, the purposeful business activities of both third-party defendants greatly exceed that required by the Court in McGowan. Whether a specific vehicle or part was sold by the respective defendants, it is well settled that a manufacturer of defective products who places them into the stream of commerce may be held strictly liable for injuries caused by its products, regardless of privity, foreseeability, or due care (see Codling v Paglia, 32 NY2d 330 [1973]). Notwithstanding whether Ford or Goodyear sold the particular product directly to plaintiffs, of greater significance is whether the products manufactured elsewhere were placed into the stream of commerce as a result of the purposeful business activities of the parties in this state (see McGowan, 52 NY2d 268), targeted at New York residents, wound up in New York, and harmed plaintiffs, residents of New York (id.). As in McGowan, the pure happenstance in this matter is the fateful trip by plaintiffs to Virginia.

It is noted that, with similar facts, the US Supreme Court found a lack of jurisdiction when the place of occurrence, alone, did not satisfy the minimal contacts requirement of the Constitution (see Goodyear Dunlop Tires Operations, S.A. v Brown, {**65 Misc 3d at 937} 564 US 915 [2011]). Therein, the Court stated, "[f]low of a manufacturer's products into the forum, we have explained, may bolster an affiliation germane to specific jurisdiction" (Goodyear, 564 US at 927). Both third-party defendants assure the flow of their products to New York through their myriad assortment of purposeful activities in which they partake. It is noted that in a case cited by Ford, Magill v Ford Motor Co. (2016 CO 57, 379 P3d 1033 [2016]), while denying general personal [*5]jurisdiction over Ford in Colorado, the Supreme Court of Colorado remanded the matter to the lower court to consider whether specific jurisdiction was applicable. Further noted, in Pitts v Ford Motor Co. (127 F Supp 3d 676 [2015]), it was ruled that Mississippi's long-arm statute subjected Ford to specific personal jurisdiction in that state.

These purposeful activities far exceed the minimal contacts with the State of New York necessary to pass constitutional muster (see Paterno v Laser Spine Inst., 24 NY3d 370 [2014]). Furthermore, the nature of the business activities of the parties satisfies the requirement for an arguable nexus and substantial relationship between that business and the causes of action revolving around the alleged defective products purchased and installed on the vehicle in New York (see Rushaid, 28 NY3d 316; see also Thomas v Ford Motor Co., 289 F Supp 3d 941 [ED Wis 2017]; Ford Motor Co. v Montana Eighth Jud. Dist. Ct., 395 Mont 478, 443 P3d 407 [2019]). Therefore, the provisions of CPLR 302 (a) (1) are satisfied, rendering third-party defendants subject to specific personal jurisdiction in the State of New York.

As to that branch of Goodyear's motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211 (a) (7), a key element of common-law indemnification is not a duty running from the indemnitor to the injured party but rather is a separate duty owed the indemnitee by the indemnitor (see Raquet v Braun, 90 NY2d 177 [1997]). The predicate of common-law indemnification is vicarious liability, such that there is no actual fault on the part of the proposed indemnitee (see Board of Mgrs. of Olive Park Condominium v Maspeth Props., LLC, 170 AD3d 645 [2d Dept 2019]; Dreyfus v MPCC Corp., 124 AD3d 830 [2d Dept 2015]). If the cause of action against defendant/third-party plaintiff is based on allegations of its own negligence, it cannot receive the benefit of the doctrine (id.). Since the basis of plaintiff's complaint against US Tires is that US Tires was negligent in failing to inspect or test the tires,{**65 Misc 3d at 938} and ascertain as to their safety prior to installation, defendant/third-party plaintiff's cause of action for common-law indemnification is dismissed.

However, a defendant may seek contribution from a third party even if the injured plaintiff has no direct right of recovery against that party, either because of a substantive legal rule or a procedural bar (see Raquet, 90 NY2d 177; Bivona v Danna & Assoc., P.C., 123 AD3d 956 [2d Dept 2014]). The critical requirement for apportionment by contribution under CPLR 1401 et seq. is that there was a breach of a duty owed to the plaintiff and such breach had a part in causing or augmenting the injury for which contribution is sought (id.).

Accordingly, the motions by Ford and Goodyear seeking to dismiss the third-party complaint for lack of specific personal jurisdiction are denied, and the branch of Goodyear's motion to dismiss the cause of action based on common-law indemnification is granted. The cross motion by defendant/third-party plaintiff to amend its answer is granted, and the amended complaint in the form proposed must be served and filed within 20 days of service of a notice of entry of this order upon the respective attorneys for the parties. In all other respects, the motions and cross motion are denied.