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Major Victory for Solvent Asbestos Defendants

By Peter A. Antonucci
October 07, 2003

In a recent and critical ruling, New York State Supreme Court Justice Helen Freedman provided a rare victory for solvent defendants in asbestos litigation. Refusing to go along with a prior ruling by the Second Circuit, Judge Freedman interpreted Article 16 of New York's Civil Practice Law and Rules to hold that defendants in asbestos litigation are entitled to decrease their respective shares of liability to take into account the percentage of liability that should have been apportioned to other would-be defendants who were not named in the case because of a prior event of bankruptcy. Until now, liability was apportioned only among those defendants who were present in the lawsuit, with the other defendants being deemed 'unavailable' for purposes of sharing in liability. In this most recent iteration on the subject, Justice Freedman agreed with the defendants who argued that a bankruptcy filing of a potential defendant does not divest a plaintiff of jurisdiction that it might otherwise have had over the bankrupt entity.

The ruling, which held that 'the culpability of a bankrupt, non-party tortfeasor will be included when calculating the defendant-tortfeasors' exposure ' ' came in the case of Tancredi v. A.C. & S., Inc., No. 120136/00 and departed from the rule of In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831 (2nd Cir. 1991).

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