On December 30, 2021 a Motion-Secondary was filed involving a dispute between Jerald Robins, Wanda Robins, and Able Supply Co., Aecom Energy & Construction, Inc., F K A Urs Energy & Construction, Inc. F K A Washington Group International, Inc., F K A Morrison Knudsen Corporation, As Successor-In-Interest To United Engineers & Constructors, Raytheon Engineers & Constructors, H.K. Ferguson, Catalytic And Stearns-Rogers Corp., Aerco International, Inc., Afton Pumps, Inc., Air & Liquid Systems Corporation As Successor-By-Merger To Buffalo Pumps, Inc.,, Ameron International Corp., Individually And As Successor-In-Interest To Bondstrand Ltd., Ametek, Inc., Anco Insulations, Inc., Armstrong International, Inc.,, Armstrong Pumps, Inc.,, Atwood & Morrill Company,, Aurora Pump Company, A.W. Chesterton, Basf Corporation, Bechtel Corporation Individually And As Successor In Interest To Bechtel, Inc., Bmce Inc., F K A United Centrifugal Pump, Bonney Forge Company,, Borg-Warner Corporation, Brand Insulations, Inc., Bw Ip International Inc., Successor-In-Interest To Byron Jackson Pump Company, Cameron International Corporation F K A Cooper Cameron Corporation, Carrier Corp.,, Carver Pump Company, Cbs Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, F K A Westinghouse Electric Corporation,, Champlain Cable Co., Clark-Reliance, Individually And As Successor To Jerguson,, Cleaver Brooks Company, Inc.,, Cna Holdings Llc, F K A Celanese Corporation F K A Hoechst Celanese Corporation,, Conoco, Inc.,, Conoco Phillips Co., Crane Co.,, Crosby Valve, Llc, Crown Central Petroleum Corp., Dezurik, Inc., Eastman Chemical Company,, Electrolux Home Products, Inc., Individually, And As Successor To Tappan And Copes-Vulcan,, Emerson Electric Co.,, Exxon Mobil Corporation,, Fisher Controls International, Inc.,, Flowserve Corporation As Successor To Duriron Inc. And Durco International Inc., Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Durco Pumps, Edward Valve, Inc., Nordstrom Valves, Inc., Edward Vogt Valve Company Vogt Valve Company, Wilson-Snyder Pumps, Fmc Corporation, Individually, And As Successor To Chicago Pump Company, Northern Pump Company, And Peerless Pump Company,, Fort Kent Holdings, Inc., F K A Dunham-Bush, Inc.,, Foster Wheeler, L.L.C.,, Gardner Denver Company, Gardner Denver Nash, L.L.C., Individually And As Successor-In-Interest To And F K A The Nash Engineering Company, General Electric Company,, Goodyear Tire & Rubber Company, Goulds Pumps, Inc.,, Grinnell Llc,, Guard-Line, Inc., Hercules, Inc., Individually And As Successor-In-Interest To Haveg Industries, Inc., Successor-By-Merger To Haveg Corporation, Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,, Imo Industries, Inc.,, International Paper Company,, Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett, And As Successor In Interest To Hoffman Specialty,, Jenkins Bros., Keeler-Dorr-Oliver Boiler Company, Lamons Gasket Company, Sued Individually And As Successor-By-Merger To Lamons Metal Gasket Co., Lennox Industries, Inc.,, Milwaukee Valve Company,, Minnesota Mining & Manufacturing Company, A K A 3M Company,, Morse Tec, Llc, F K A Borgwarner Morse Tec Llc, And Successor-By Merger To Borg-Warner Corporation,, Natkin & Company, Neles-Jamesbury, Inc., Nooter Corporation,, Pfizer, Inc.,, Phillips Petroleum Co.,, Ref-Chem Individually And As Successor-In-Interest To Rc-Ael Company And Individually And As Successor-In-Interest To Don Love, Inc., Resco Holdings, Llc, Individually And As Successor To Entities Including But Not Limited To Kell Holding Corporation, Henley Mwk Holding, Inc. Pullman Incorporated, The M.W. Kellogg Company, And Wheelabrator-Chicago, Inc, Riley Power, Inc. F K A Riley Stoker Corporation, Individually And As Successor In Interest To Union Iron Works Rohm And Haas Company, Robertshaw Controls Company, Individually, And As Successor To Fulton Sylphon Company,, Roper Pump Company,, Santa Fe Braun, Inc., Individually And As Successor-In- Interest To C.F. Braun & Co., C.F. Braun Constructors, Inc., And Jgc, Inc., Sequoia Ventures, Inc. F K A Bechtel Corporation, Spirax Sarco, Inc. Individually And As Successor To Sarco Company,, Spx Cooling Technologies, Inc., Individually And As Successor To Marley Cooling Technologies And Marley Cooling Towers,, Taco, Inc., Tdy Industries, Inc. F K A Teledyne Industries, Inc., Individually, And As Successor To Farris Engineering,, The Dow Chemical Company, The Gorman-Rupp Company, The Industrial Insulators, Inc., The Mundy Companies, Thermal Industrial Insulation Inc., Tutor Perini Corporation Is A Corporation And Parent Company Of Fisk Acquisition, Inc. And Fisk Electric Company And As Successor-In-Interest To Natkin & Company, Union Carbide Corporation,, Velan Valve Corporation,, Viking Pump, Inc., Warren Pumps Llc.,, Warren-Rupp Company, Individually And As A Subsidiary To Idex Corporation, Watts Regulator Company, Individually And As A Subsidiary Of Watts Industries, Inc., Waukesha Cherry-Burrell,, Westrock Company,, William Powell Company,, Win-Way, Inc., York International Corporation, As Successor In Interest To York Corporation,, Zurn Industries, Inc., Individually And As Successor In Interest To Erie City Iron Works,, for Torts - Asbestos in the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X JERALD ROBINS and WANDA ROBINS, Index No.: 190008/2022 Plaintiff(s), AFFIRMATION OF MATTHEW J. -against- IAMMATTEO, ESQ. IN SUPPORT OF DEFENDANT THERMAL AERCO INTERNATIONAL, INC., et. al. INDUSTRIAL INSULATION INC.’S MOTION TO DISMISS Defendants. COMPLAINT ------------------------------------------------------------------X I, Matthew Iammatteo, Esq., an attorney licensed in New York, affirms the following to be true under the penalty of perjury pursuant to CPLR §2106, hereby state as follows: 1. I am an attorney with the law firm Wilson Elser Moskowitz Edelman & Dicker, LLP, attorneys for Defendant Thermal Industrial Insulation Inc. (“TII”). I am familiar with the facts of this action and respectfully submit the Affirmation in Support of TII’s Motion to Dismiss Complaint. 2. Attached as Exhibit A is a true and correct copy of Plaintiff’s Amended Verified Complaint dated March 4, 2022. 3. Attached as Exhibit B is a true and correct copy of TII’s Correspondence sent to Plaintiff’s counsel on May 3, 2022 with attached Articles of Incorporation which indicates that TII did not exist during the period of time during which Plaintiff was purportedly exposed to asbestos materials and fibers. 4. Attached as Exhibit C is a true and correct copy of Plaintiff’s Responses to Defendant’s Standard Set of Interrogatories and Request for Production of Documents dated March 4, 2022. 5. Attached as Exhibit D is a true and correct copy of Plaintiff’s Deposition testimony Volumes 1 through 7. 1 of 9 FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 6. Attached as Exhibit E is a true and correct copy of Stipulation Extending Time to File Responsive Pleading. I. PRELIMINARY STATEMENT 7. Pursuant to C.P.L.R. § 3211(a)(8), Defendant TII respectfully submits this affirmation in support of its motion to dismiss based on the grounds that this Court lacks personal jurisdiction over TII. New York does not have general jurisdiction over TII because TII is incorporated in Texas and its principal place of business is in Texas. [See C.P.L.R. § 301]. Additionally, New York does not have specific jurisdiction over TII because TII’s alleged conduct relative to Plaintiff’s cause of action could not have existed because TII was not incorporated until March 20, 1981, and Plaintiff’s alleged exposure to asbestos was between 1957 and 1979. [See C.P.L.R. § 302]. Accordingly, Plaintiffs’ claims against TII must be dismissed. II. STATEMENT OF FACTS 8. On March 4, 2022, Plaintiff filed his Amended Verified Complaint alleging that TII “was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York.” (See Exhibit A Plaintiffs’ Amended Verified Complaint at ¶ 94). 9. On March 4, 2022, Plaintiff served his Responses to Defendant’s Standard Set of Interrogatories and Request for Production of Documents. Plaintiff does not allege in his Responses that TII was a source of his alleged asbestos exposure. Plaintiff states in relevant part “[Plaintiff] worked in various capacities throughout his career in construction, ranging from pipefitter to roles in management, eventually retiring as a Superintendent in 2011. He sustained exposure to asbestos and asbestos - containing products during his career while working as a Pipefitter, Pipe Foreman, Boiler Foreman, General Foreman, Pipe Superintendent and Project Superintendent at jobsites including, but not limited to chemical plants, refineries and paper mills between 1957 and 1979.” Plaintiff identifies multiple entities in his Responses, but not one of the 2 of 9 FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 entities are TII. (See Exhibit C Plaintiff’s Responses to Defendant’s Standard Set of Interrogatories and Request for Production of Documents dated March 4, 2022 at ¶ 17A.) 10. Plaintiff was deposed beginning on March 15, 2022. Plaintiff never identified TII in his deposition testimony. (See Exhibit D is a true and correct copy of Plaintiff’s Deposition testimony Volumes 1 through 7). 11. On May 3, 2022, TII served correspondence on Plaintiff’s counsel outlining TII’s position that TII has never conducted business in New York. As stated above, a review of Plaintiff’s Interrogatory Responses and Deposition Testimony, shows that Plaintiff alleges exposure to asbestos between 1957 and 1979. Annexed to TII’s May 3, 2022 correspondence are Articles of Incorporation, dated March 20, 1981, which confirm that TII did not exist during the period of time which Plaintiff was purportedly exposed to asbestos materials and fiber. In addition, TII is incorporated in Texas and has its principal place of business in Texas (See Exhibit B TII’s Correspondence sent to Plaintiff’s counsel on May 3, 2022 with attached Articles of Incorporation). Plaintiff also resides in Texas. (See Exhibit C Plaintiff’s Responses to Defendant’s Standard Set of Interrogatories and Request for Production of Documents dated March 4, 2022). 12. As such, Plaintiff has no jurisdiction over TII in New York, and did not elicited any testimony regarding use of TII’s products which would show that TII did any business in New York. In light of this evidence, a Stipulation of Voluntary Dismissal was requested but same has not been executed by Plaintiff’s counsel. (See Exhibit B TII’s Correspondence sent to Plaintiff’s counsel on May 3, 2022 with attached Articles of Incorporation). 13. For all these reasons, TII requests that Plaintiff’s Complaint against TII be dismissed. III. STANDARD OF REVIEW 14. New York law establishes that it is plaintiff’s burden to prove that the Court has personal jurisdiction over each Defendant (See, e.g., O'Brien v Hackensack Univ. Med. Ctr., 305 3 of 9 FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 A.D.2d 199, 200, [1st Dep’t 2003]). A plaintiff, who seeks to invoke the personal jurisdiction of the New York Courts with respect to a non-resident defendant, must expressly allege in the complaint facts bringing the non-resident within the C.P.L.R.’s provision for such jurisdiction (See e.g., Teplin v. Manafort, 81 A.D.2d 531, 531, [1st Dep’t 1981] (dismissing a complaint for failure to expressly allege the facts underlying personal jurisdiction). 15. Moreover, “[i]t has long been established that the Fourteenth Amendment limits the personal jurisdiction of state courts.” (Bristol-Myers Squibb Co. v Superior Ct. of California, San Francisco County, 137 S.Ct. 1773, 1779 [2017]). There are two types of personal jurisdiction: “‘general’ (sometimes called ‘all-purpose’) jurisdiction and ‘specific’ (sometimes called ‘case linked’) jurisdiction.” (Id. at 1780 (quoting Goodyear Dunlop Tires Operations, S.A. v Brown, 564 U.S. 915, 919, [2011])). As will be discussed below, in this case, New York neither has general nor specific jurisdiction over TII. IV. ARGUMENT A. NEW YORK DOES NOT HAVE GENERAL JURISDICTION OVER TII 16. This Court does not have general jurisdiction over TII because TII is not incorporated in New York and TII’s principal place of business is not located in New York. 17. In order for a court to assert general jurisdiction over a foreign corporation that corporation’s “affiliations with the State [must be] so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” (Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919). 18. The U.S. Supreme Court has stated that “‘only a limited set of affiliations with a forum will render a defendant amenable to general jurisdiction in that State.’” (Bristol-Myers Squibb Co., 137 S.Ct. at 1780 (quoting Daimler AG v. Bauman, 134 S.Ct. 746, 760 [2014])). In particular, the permissible “affiliations” that will render a defendant-corporation amenable to 4 of 9 FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 general jurisdiction are the place of incorporation and principal place of business. Daimler AG, 134 S.Ct. at 760. 19. The First Department also has reached the same conclusion—if a “defendant neither is incorporated in New York State nor has its principal place of business [in New York State, then] New York courts may not exercise jurisdiction over it under C.P.L.R. 301.” (D & R Glob. Selections, S.L. v Pineiro, 128 A.D.3d 486, 487 [1st Dept. 2015], rev’d on other grounds, 29 N.Y.3d 292 [2017]; see also Magdalena v. Lins, 123 A.D.3d 600, 601 [1st Dept. 2014] (holding “there is no basis for general jurisdiction pursuant to C.P.L.R. 301, since [defendant] is not incorporated in New York and does not have its principal place of business in New York.”)). 20. TII is incorporated in Texas and has its principal place of business in Texas (See Exhibit B). TII is not amenable to general jurisdiction in New York. 21. Plaintiff’s Complaint should be dismissed on this basis alone. B. NEW YORK DOES NOT HAVE SPECIFIC JURISDICTION OVER TII 22. New York’s long arm statute, C.P.L.R. § 302, enables New York courts to exercise specific jurisdiction over foreign defendants in certain limited circumstances. Pursuant to C.P.L.R. § 302(a), a New York court only may exercise specific jurisdiction over a non-domiciliary defendant when that party: a. “transacts any business within the state or contracts anywhere to supply goods or services in the state; or b. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or c. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he i. regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or ii. expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or iii. owns, uses or possesses any real property situated within the state.” 5 of 9 FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 23. Furthermore, the Court of Appeals has held that in order to sustain a cause of action under one of the above four enumerated categories, a plaintiff must also show that there is an “articulable nexus” or “substantial relationship” with the forum state (See D & R Glob. Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 297-99 [2017]). 24. In short, the “[e]xercise of personal jurisdiction under [C.P.L.R. 302(a)] must [] comport with federal due process.” (Id. at 299). “Federal due process requires first that a defendant have minimum contacts with the forum state such that the defendant should reasonably anticipate being hauled into court there and second, that the prospect of having to defend a suit in New York comports with traditional notions of fair play and substantial justice.” (Id. at 300 (quotations and citations omitted)). i. C.P.L.R. § 302(a)(1) and § 302 (a)(4) 25. This Court does not have specific jurisdiction pursuant to C.P.L.R. § 302(a)(1) or C.P.L.R. § 302(a)(4) because Plaintiff’s claims against TII do not relate to goods, services or property located in New York State. There is no evidence that Plaintiff’s condition arose from any transaction of TII business in New York (See Exhibit C). In fact, TII never transacted or conducted business in the state of New York. 26. Plaintiffs’ only claims against TII are in the Amended Complaint which pleads, “Defendant Thermal Industrial Insulation Inc., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York.” (See Exhibit A). 27. Plaintiff has not made any claims against TII for a product or premises that were located in New York. (See Exhibit A; Exhibit C; Exhibit D). If an alleged duty was owed by TII, as well as any alleged breach of that duty, it would have arose or occurred out-of-state, which also highlights the absence of the necessary due process – i.e., an articulable nexus or substantial relationship between New York business activity and the claim asserted. However, TII has never 6 of 9 FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 conducted business in New York and did not exist until well after Plaintiff’s alleged asbestos exposure. (See Exhibit A; Exhibit B; Exhibit C; Exhibit D) See Trumbull v. Adience, Inc., Index No. 190084/2016, slip. op. at 9 [N.Y. Sup. Ct. March 6, 2017]. Thus, there is no jurisdiction under C.P.L.R. § 302(a)(1) or 302(a)(4). ii. C.P.L.R. § 302(a)(2) 28. This Court also does not have specific jurisdiction pursuant to C.P.L.R. § 302(a)(2) because Plaintiff does not allege that TII committed a tortious act against Plaintiff in New York (See Exhibit A; Exhibit C; Exhibit D). 29. C.P.L.R. § 302(a)(2) states in relevant part that it, “has long been construed to apply where the defendant’s wrongful conduct is performed in New York.” Trumbull, supra, at 8 (citing Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 NY2d 443, 465 [1965]). In this case, Plaintiff lived and worked in Texas and he has not presented any evidence which would prove that he used a product manufactured by TII in the state of New York. Furthermore, he never worked in the State of New York. (See e.g. Exhibit A; Exhibit C; Exhibit D). As such, there is no specific jurisdiction under C.P.L.R. § 302(a)(2). iii. C.P.L.R. § 302(a)(3)(i) and 302 (a)(3)(ii) 30. C.P.L.R. § 302(a)(3) establishes specific jurisdiction over a non-domiciliary when: (1) that defendant committed a tortious act outside the state; (2) that the cause of action arises from that act; (3) that the act caused injury to a person or property within the State; and that defendant (i) regularly does or solicits business, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should have reasonably expected for the injury to have consequences in the state, and derived substantial revenue from interstate or international commerce. (See Biz2Credit, LLC v IFMR Trust, 2010 N.Y. Misc. LEXIS 1457 [N.Y. Sup. Ct. 2010]) (emphasis added)). 31. Here, Plaintiff does not allege that TII’s alleged acts caused injury to a person or property within the State of New York (See e.g Exhibit A; Exhibit C; Exhibit D). Rather, Plaintiff is a resident of Texas, his alleged exposure to asbestos products occurred only in Texas, 7 of 9 FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 and he has not proven that he ever worked with a product manufactured or produced by TII. To reiterate, TII has never conducted or transacted business in New York and all of Plaintiff’s treatment for his claimed injury occurred in Texas. (See e.g Exhibit A; Exhibit B; Exhibit C; Exhibit D). iv. Due Process Now Requires a Relationship to the Forum and therefore, New York’s Exercise of Specific Jurisdiction Would Violate Due Process 32. Even if Plaintiffs had alleged jurisdictional facts sufficient under C.P.L.R. § 302(a), they would still be required to demonstrate that the underlying controversy against TII has a nexus to its contacts with New York (See Bristol-Myers Squibb Co., 137 S.Ct. at 1780 (stating that the suit must “aris[e] out of or relat[e] to the defendant’s contacts with the forum.”) (emphasis in original)). Here, however, TII has never transacted or conducted business or had any type of contact with New York which would result in any connection to Plaintiff’s claims (See e.g Exhibit A; Exhibit B; Exhibit C; Exhibit D). 33. In Bristol-Myers Squibb Co., supra, 137 S.Ct. at 1781, the California Supreme Court asserted specific jurisdiction over a non-domiciliary, corporate defendant based on the “defendant’s extensive” contacts with California. Even though the harm did not occur in California, the court contended that it had specific jurisdiction over the foreign defendant because it maintained offices in California, conducted research in California, and sold products in California that also harmed California residents (See id. 1778-79, 81). However, the U.S. Supreme Court held that, for specific jurisdiction purposes, it did not matter how extensive the connections the foreign defendant had with California (Id. at 1781). What mattered for specific jurisdiction was where the tortious act took place (Id). To that point, the U.S. Supreme Court explained: In order for a court to exercise specific jurisdiction over a claim, there must be an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Goodyear, 564 U.S., at 919, 131 S.Ct. 2846 (internal quotation marks and brackets in original omitted). When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State. See id., at 931, n. 6, 131 8 of 9 FILED: NEW YORK COUNTY CLERK 06/10/2022 08:22 PM INDEX NO. 190008/2022 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 06/10/2022 S.Ct. 2846 (“[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales”) (Id.). 34. It is now clear that a court can only maintain specific jurisdiction over an out-of- state defendant if that defendant harmed a plaintiff in that state (Id.; see also Walden v Fiore, 134 S.Ct. 1115, 1124, [2014] (holding, even though the plaintiffs were Nevada residents and suffered foreseeable harm in Nevada, Nevada courts lacked jurisdiction over the out-of-state defendant because the relevant conduct occurred entirely in Georgia). 35. Accordingly, based on the holding in Bristol-Myers Squibb Co., supra, 137 S.Ct. at 1781, it would be unconstitutional to assert specific jurisdiction over TII in this case. Plaintiff’s cause of action against TII relates only to Plaintiff’s alleged use asbestos containing products, and was ONLY in Texas. There is NO indication in the record that Plaintiff identified or used any of TII’s products in Texas or New York. (See e.g Exhibit A; Exhibit B; Exhibit C; Exhibit D). Therefore, this Court does not have specific jurisdiction over TII because the alleged tortious conduct, if proven, occurred entirely in Texas and not in New York. V. CONCLUSION 36. For the reasons set forth above, TII respectfully requests that the Court grant its Motion to Dismiss Based on Lack of General Jurisdiction or Specific Personal Jurisdiction, pursuant to C.P.L.R. 3211(a)(8), dismiss Plaintiff’s claims and all cross-claims against TII, and/or for such other relief as is just and equitable. Dated: June 10, 2022 WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP By: /s/ Matthew J. Iammatteo Matthew J. Iammatteo, Esq. Wilson Elser Moskowitz Edelman & Dicker LLP Attorneys for Defendant Thermal Industrial Insulation Inc. 150 East 42nd Street New York, New York 10017 Tel.: (973) 735-1445 9 of 9