Preview
FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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CARMEN CATALANOTTO, Individually and as
Executrix of the Estate of VINCENT CATALANOTTO, ANSWER TO PLAINTIFFS’
COMPLAINTS, AFFIRMATIVE
Plaintiff(s), DEFENSES, CROSSCLAIMS,
ANSWERS TO CROSSCLAIMS
AND DEMAND FOR JURY TRIAL
-against- BY G.S. BLODGETT
CORPORATION
A.O. SMITH WATER PRODUCTS CO., et. al.
Defendants.
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Defendant G.S. Blodgett Corporation (“Blodgett”), by and through its attorneys, Wilson
Elser Moskowitz Edelman & Dicker LLP, hereby submits its Answer to Plaintiffs’ Verified
Complaint, Amended Verified Complaint and Levy Konigsberg LLP’s Standard Asbestos
Complaint for Wrongful Death and Survival Damages states as follows:
ANSWER TO PLAINTIFFS’ VERIFIED COMPLAINT
1. Blodgett hereby incorporates as if fully stated herein its Answer to Levy
Konigsberg LLP’s Standard Asbestos Complaint for Wrongful Death and Survival Damages and
raises each of the affirmative defenses and cross-claims as set forth below.
2. Blodgett denies having knowledge and information sufficient to form a belief as to
the truth of the allegations contained in paragraph “2” of the Verified Complaint and, therefore,
denies same.
3. Paragraph "3" of the Second Amended Verified Complaint contains no allegation
of fact to which a responsive pleading is required.
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4. Blodgett denies having knowledge and information sufficient to form a belief as to
the truth of the allegations contained in paragraph “4” of the Verified Complaint and, therefore,
denies same.
ANSWER TO PLAINTIFFS’ AMENDED VERIFIED COMPLAINT
1. Blodgett hereby incorporates as if fully stated herein its Answer to Levy
Konigsberg LLP’s Standard Asbestos Complaint for Wrongful Death and Survival Damages and
raises each of the affirmative defenses and cross-claims as set forth below.
2. Paragraph “2” of the Amended Verified Complaint do not contain allegations
directed against Blodgett; therefore, Blodgett neither admits nor denies the allegations of
paragraph “2” of the Amended Verified Complaint. To the extent a response is necessary, Blodgett
denies the allegations contained therein.
3. Blodgett denies having knowledge and information sufficient to form a belief as to
the truth of the allegations contained in paragraph “3” of the Amended Verified Complaint and,
therefore, denies same.
4. Paragraph "4" of the Amended Verified Complaint contains no allegation of fact to
which a responsive pleading is required.
5. Blodgett denies having knowledge and information sufficient to form a belief as to
the truth of the allegations contained in paragraph “5” of the Amended Verified Complaint and,
therefore, denies same.
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ANSWER TO LEVY KONIGSBERG LLP’S STANDARD ASBESTOS COMPLAINT
FOR WRONGFUL DEATH AND SURVIVAL DAMAGES
1-2. Paragraphs "1" thru “2” of the Levy Konigsberg LLP’s Standard Asbestos
Complaint for Wrongful Death and Survival Damages (“Standard Complaint”) contains no
allegation of fact to which a responsive pleading is required.
3-17. Blodgett denies the allegations of paragraphs “3” thru “17” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraphs “3” thru “17” of the Standard Complaint
to the extent that they are directed to other Defendants.
COUNT I - NEGLIGENCE
18. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “17” of the Standard Complaint as though fully
set forth at length herein.
19-34. Blodgett denies the allegations of paragraphs “19” thru “34” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraphs “19” thru “34” of the Standard
Complaint to the extent that they are directed to other Defendants.
COUNT II – STRICT LIABILITY
35. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “34” of the Standard Complaint as though fully
set forth at length herein.
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36-46. Blodgett denies the allegations of paragraphs “36” thru “46” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraphs “36” thru “46” of the Standard
Complaint to the extent that they are directed to other Defendants.
COUNT III – BREACH OF WARRANTY
47. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “46” of the Standard Complaint as though fully
set forth at length herein.
48-52. Blodgett denies the allegations of paragraphs “48” thru “52” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraphs “48” thru “52” of the Standard
Complaint to the extent that they are directed to other Defendants.
COUNT IV – PREMISES LIABILITY & LABOR LAW AND NYS INDUSTRIAL CODE
VIOLATIONS
53. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “52” of the Standard Complaint as though fully
set forth at length herein.
54-64. Blodgett denies the allegations of paragraphs “54” thru “64” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraphs “54” thru “64” of the Standard
Complaint to the extent that they are directed to other Defendants.
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COUNT V – LIABILITY FOR CONTRACTORS AND SUB-CONTRACTORS
65. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “64” of the Standard Complaint as though fully
set forth at length herein.
66. Paragraph "66" of the Standard Complaint contains no allegation of fact to which a
responsive pleading is required.
67-78. Blodgett denies the allegations of paragraphs “67” thru “78” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraphs “67” thru “78” of the Standard
Complaint to the extent that they are directed to other Defendants.
COUNT VI – LIABILITY FOR “DUST MASK” DEFENDANTS
79. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “78” of the Standard Complaint as though fully
set forth at length herein.
80. Paragraph "80" of the Standard Complaint contains no allegation of fact to which a
responsive pleading is required.
81-92. Blodgett denies the allegations of paragraphs “81” thru “92” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraphs “81” thru “92” of the Standard
Complaint to the extent that they are directed to other Defendants.
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COUNT VII – CIVIL CONSPIRACY AND FRAUD
93. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “92” of the Standard Complaint as though fully
set forth at length herein.
94-99. Blodgett denies the allegations of paragraphs “94” thru “99” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraphs “94” thru “99” of the Standard
Complaint to the extent that they are directed to other Defendants.
JOINT AND SEVERAL LIABILITY – EXCEPTIONS TO ARTICLE 16
100. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “99” of the Standard Complaint as though fully
set forth at length herein.
101-102. Blodgett denies the allegations of paragraphs “101” thru “102” of the
Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of
law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as
to the truth and/or accuracy of the allegations contained in paragraphs “101” thru “102” of the
Standard Complaint to the extent that they are directed to other Defendants.
DISCLAIMER OF FEDERAL JURISDICTION
103. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “102” of the Standard Complaint as though fully
set forth at length herein. Blodgett denies the allegations of paragraph “103” of the Standard
Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the
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Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth
and/or accuracy of the allegations contained in paragraph “103” of the Standard Complaint to the
extent that they are directed to other Defendants.
LOSS OF CONSORTIUM
104. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “103” of the Standard Complaint as though fully
set forth at length herein.
105. Blodgett denies the allegations of paragraph “105” of the Standard Complaint as
directed against Blodgett and Blodgett respectfully refers all questions of law to the Court.
Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or
accuracy of the allegations contained in paragraph “105” of the Standard Complaint to the extent
that they are directed to other Defendants.
PUNITIVE DAMAGES
106. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the
allegations contained in paragraphs “1” through “105” of the Standard Complaint as though fully
set forth at length herein.
107-108. Blodgett denies the allegations of paragraphs “107” thru “108” of the
Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of
law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as
to the truth and/or accuracy of the allegations contained in paragraphs “107” thru “108” of the
Standard Complaint to the extent that they are directed to other Defendants.
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FIRST AFFIRMATIVE DEFENSE
Blodgett was free of any and all negligence.
SECOND AFFIRMATIVE DEFENSE
Blodgett acted reasonably and with due care.
THIRD AFFIRMATIVE DEFENSE
Blodgett owed no duty to Plaintiffs. In the alternative, if any duty was owed, that duty was
not violated by Blodgett.
FOURTH AFFIRMATIVE DEFENSE
The injuries and damages alleged by the Plaintiffs were the proximate result of
wrongdoing of third parties over whom Blodgett had no control.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ fault was greater than any alleged fault of Blodgett and, accordingly, Plaintiffs
are barred from recovery.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ recovery is reduced pursuant to C.P.L.R. Section 1411.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ recovery is limited pursuant to C.P.L.R. Section 1601.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ Complaints fail to state a claim upon which relief can be granted.
NINTH AFFIRMATIVE DEFENSE
Blodgett has not mined, manufactured, processed, designed, developed, fashioned,
fabricated, selected, assembled, inspected, tested, maintained for sale, marketed, promoted,
packaged, supplied, sold, distributed, delivered, or installed any asbestos-containing products to
or for Plaintiffs or Plaintiffs’ employers.
TENTH AFFIRMATIVE DEFENSE
Plaintiffs have failed to join indispensable parties to this action.
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ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ action is barred, in whole or in part, by applicable statute(s) of limitations.
TWELFTH AFFIRMATIVE DEFENSE
Blodgett denies any breach of warranties, express, implied, written or oral.
THIRTEENTH AFFIRMATIVE DEFENSE
Blodgett is not liable to Plaintiffs in strict liability in tort.
FOURTEENTH AFFIRMATIVE DEFENSE
The alleged sale and/or manufacture of products by Blodgett as referred to in Plaintiffs’
Complaints are not subject to the warranty acts as embodied in the New York Commercial Code.
FIFTEENTH AFFIRMATIVE DEFENSE
The incident and injuries complained of were caused by unauthorized, unintended and
improper use of the products complained of and as a result of Plaintiffs’ failure to exercise
reasonable and ordinary care, caution or vigilance.
SIXTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ damages were caused by the superseding and intervening acts or the fault of
other parties over whom Blodgett has no control and for whose actions Blodgett is not liable.
SEVENTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ action is barred by the doctrines of waiver, estoppel, and laches.
EIGHTEENTH AFFIRMATIVE DEFENSE
Inasmuch as Plaintiffs are unable to identify the manufacturer or supplier of the product
which allegedly caused their damages, Plaintiffs fail to state a claim upon which relief can be
granted, because if relief were granted in the absence of product identification, it would contravene
Blodgett’s constitutional right to substantive and procedural due process of law and equal
protection as preserved by the Fourteenth Amendment to the United States Constitution and the
New York State Constitution.
NINTEENTH AFFIRMATIVE DEFENSE
At all times relevant hereto, Blodgett complied with all the applicable laws, regulations
and standards.
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TWENTIETH AFFIRMATIVE DEFENSE
Plaintiffs’ claim for punitive damages violates Blodgett’s procedural and substantive due
process rights and equal protection rights under the Fifth and Fourteenth Amendments to the
United States Constitution and under the New York State Constitution.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claim for punitive damages is barred by the proscription of the Eighth
Amendment of the United States Constitution, as applied to the States through the Fourteenth
Amendment, prohibiting the imposition of excessive fines, and Article I, Section 5 of the New
York State Constitution.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Blodgett denies the applicability of punitive damages theories under the facts of this
litigation and, in any event, denies it is liable under said theories.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Plaintiffs failed to mitigate or minimize any damages allegedly sustained by Plaintiffs.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
To the extent that the cause of action set forth in Plaintiffs’ Complaints seeks damages for
which payment was received from collateral sources, such damages must be reduced pursuant to
the provisions of C.P.L.R. Section 4545(c).
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Blodgett is entitled to set-off pursuant to G.O.L. Section 15-108, including, without
limitation, set-off of the liability shares of bankrupt non-parties.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
The damages sustained by the Plaintiffs were not caused by any product produced,
manufactured, sold, distributed, or installed by Blodgett.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Blodgett asserts that Plaintiffs’ claims are barred from recovery because the Blodgett
product, in question, if any, was state-of-the-art at the time of its manufacture and/or contained
an adequate warning.
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims and/or causes of action are preempted by the federal regulations of the
Occupational Safety and Health Administration and other applicable federal laws and
regulations.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Plaintiffs’ Complaints should be dismissed for lack of jurisdiction over the subject
matter, lack of jurisdiction over the person and/or lack of venue and Blodgett reserves its right
to move to dismiss or transfer Plaintiffs’ Complaints.
THIRTIETH AFFIRMATIVE DEFENSE
Plaintiffs assumed the risk and were fully cognizant of any and all circumstances
surrounding the alleged incidents complained of and are therefore barred from recovery.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Blodgett denies the existence and/or the applicability of the doctrines of absolute,
enterprise, market share, concerted action, risk contribution, or alternative liability under New
York law and the facts of this case, and denies that it is liable under any of those theories.
THIRTY-SECOND AFFIRMATIVE DEFENSE
No product for which Blodgett may be responsible was a substantial contributing factor
in causing Plaintiffs any illness, injury and/or disease.
THIRTY-THIRD AFFIRMATIVE DEFENSE
The conditions at any premises for which Blodgett may be responsible were not a
substantial contributing factor in causing Plaintiffs any illness, injury and/or disease.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to recover under the doctrine of peculiar risk.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the doctrine of sophisticated intermediaries.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ cause of action for exemplary or punitive damages is barred because such
damages are not recoverable or warranted in this action.
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THIRTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ demand for punitive damages is barred by the “double jeopardy” clause of the
Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth
Amendment, and Article I, Section 6 of the New York State Constitution.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ demand for punitive damages is barred by the “ex post facto” clause of the
United States Constitution.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Blodgett hereby incorporates by reference and further would rely upon all defenses which
have been or will be asserted by other Defendants or Third Parties in this action, except to the
extent that they would impose liability on Blodgett, and are adopted and incorporated by
reference as if fully set forth at length herein as defenses to Plaintiffs’ Complaints.
FORTIETH AFFIRMATIVE DEFENSE
Blodgett reserves the right to assert additional defenses and objections as a continuing
investigation and/or discovery may disclose.
WHEREFORE, Defendant G.S. Blodgett Corporation (“Blodgett”), demands judgment
against Plaintiffs in its favor:
(a) Dismissing the Complaints against Blodgett on the merits with prejudice and in its
entirety;
(b) Awarding Blodgett its costs and disbursements, including reasonable attorneys’
fees incurred in this action; and
(c) Granting Blodgett such other and further relief as the Court may deem just and
proper.
CROSS-CLAIMS
Defendant G.S. Blodgett Corporation (“Blodgett”), by way of cross-claim against all other
Defendants, however constituted, joined in this action, or to be joined in this action, states as
follows:
FIRST COUNT
1. While denying any liability for the alleged incident and damages alleged in
Plaintiffs’ Complaint, if judgment is recovered by Plaintiffs against Blodgett, the damages
allegedly sustained by Plaintiffs arose through the direct and primary negligence of and/or other
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tortious actions of the co-defendants, and the alleged negligence of Blodgett was merely
secondary, constructive, technical, imputed and/or vicarious.
2. Accordingly, said co-defendants are obligated, by the operation of law, contract or
otherwise, to indemnify Blodgett and to hold Blodgett harmless from any and all claims as to the
subject incident and damages.
WHEREFORE, Defendant G.S. Blodgett Corporation, demands judgment against all co-
defendants and indemnification for any and all sums as may be found due against it in favor of
Plaintiffs, together with interest and costs.
SECOND COUNT
1. Pursuant to C.P.L.R. § 1401, Blodgett is entitled to contribution from and against
all persons and entities that share liability to Plaintiff(s), including, without limitation, bankrupt
non-parties and parties not joined in this action.
WHEREFORE, Defendant G.S. Blodgett Corporation, demands judgment against all co-
defendants and contribution from any and all sums as may be found due against it in favor of
Plaintiff(s), together with interest and costs.
ANSWER TO ALL CROSS-CLAIMS
Defendant G.S. Blodgett Corporation denies any and all allegations in any cross-claims or
other claims for contribution or indemnity or otherwise asserted or to be asserted against it by any
other party.
DEMAND FOR JURY TRIAL
Defendant G.S. Blodgett Corporation demands a trial by jury as to all issues contained
herein.
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WHEREFORE, Defendant G.S. Blodgett Corporation demands judgment dismissing
Plaintiffs’ Complaints and all cross-claims in their entirety, with costs and disbursements, and in
the event of any judgment over and against G.S. Blodgett Corporation, demands judgment,
contribution, and/or indemnity in accordance with the principles of fault and apportionment, along
with costs and disbursements, including reasonable attorneys’ fees.
Dated: June 21, 2022
Respectfully Submitted,
Jason Liam Schmolze
Jason Liam Schmolze
Attorneys for Defendant G.S. Blodgett Corporation
Wilson Elser Moskowitz Edelman & Dicker LLP
150 East 42nd Street, Suite #23
New York, NY 10017
973.735.1445 (Direct)
To: Levy Konigsberg, LLP
Attorneys for Plaintiffs
800 Third Avenue, 11th Floor
New York, NY 10022
All Known Defendants (Via NYSCEF)
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ATTORNEY’S VERIFICATION
STATE OF NEW JERSEY }
} s.s.
COUNTY OF NEW YORK }
Jason Liam Schmolze, being duly sworn, deposes and says that I am an attorney with the
law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, that I have read the foregoing
Answer by Defendant G.S. Blodgett Corporation and know the contents thereof, and that the same
is true to my own knowledge, except as to matters therein stated to be alleged upon information
and belief, and that as to those matters, I believe them to be true. The source of deponent’s
information and the grounds of his belief as to all the matters therein alleged upon information and
belief are reports from and communication had with said Defendant. The reason this verification
is made by deponent and not by Defendant is because Defendant does not reside within the County
where their attorneys have an office.
Dated: June 21, 2022
Jason Liam Schmolze
Jason Liam Schmolze
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FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------x Index No. 190247/2021 CARMEN CATALANOTTO, Individually and as Executrix of the Estate of VINCENT CATALANOTTO, ANSWER TO PLAINTIFFS’ COMPLAINTS, AFFIRMATIVE Plaintiff(s), DEFENSES, CROSSCLAIMS, ANSWERS TO CROSSCLAIMS AND DEMAND FOR JURY TRIAL -against- BY G.S. BLODGETT CORPORATION A.O. SMITH WATER PRODUCTS CO., et. al. Defendants. --------------------------------------------------------------------x Defendant G.S. Blodgett Corporation (“Blodgett”), by and through its attorneys, Wilson Elser Moskowitz Edelman & Dicker LLP, hereby submits its Answer to Plaintiffs’ Verified Complaint, Amended Verified Complaint and Levy Konigsberg LLP’s Standard Asbestos Complaint for Wrongful Death and Survival Damages states as follows: ANSWER TO PLAINTIFFS’ VERIFIED COMPLAINT 1. Blodgett hereby incorporates as if fully stated herein its Answer to Levy Konigsberg LLP’s Standard Asbestos Complaint for Wrongful Death and Survival Damages and raises each of the affirmative defenses and cross-claims as set forth below. 2. Blodgett denies having knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraph “2” of the Verified Complaint and, therefore, denies same. 3. Paragraph "3" of the Second Amended Verified Complaint contains no allegation of fact to which a responsive pleading is required. Page 1 of 15 269832875v.1 1 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 4. Blodgett denies having knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraph “4” of the Verified Complaint and, therefore, denies same. ANSWER TO PLAINTIFFS’ AMENDED VERIFIED COMPLAINT 1. Blodgett hereby incorporates as if fully stated herein its Answer to Levy Konigsberg LLP’s Standard Asbestos Complaint for Wrongful Death and Survival Damages and raises each of the affirmative defenses and cross-claims as set forth below. 2. Paragraph “2” of the Amended Verified Complaint do not contain allegations directed against Blodgett; therefore, Blodgett neither admits nor denies the allegations of paragraph “2” of the Amended Verified Complaint. To the extent a response is necessary, Blodgett denies the allegations contained therein. 3. Blodgett denies having knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraph “3” of the Amended Verified Complaint and, therefore, denies same. 4. Paragraph "4" of the Amended Verified Complaint contains no allegation of fact to which a responsive pleading is required. 5. Blodgett denies having knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraph “5” of the Amended Verified Complaint and, therefore, denies same. Page 2 of 15 269832875v.1 2 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 ANSWER TO LEVY KONIGSBERG LLP’S STANDARD ASBESTOS COMPLAINT FOR WRONGFUL DEATH AND SURVIVAL DAMAGES 1-2. Paragraphs "1" thru “2” of the Levy Konigsberg LLP’s Standard Asbestos Complaint for Wrongful Death and Survival Damages (“Standard Complaint”) contains no allegation of fact to which a responsive pleading is required. 3-17. Blodgett denies the allegations of paragraphs “3” thru “17” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “3” thru “17” of the Standard Complaint to the extent that they are directed to other Defendants. COUNT I - NEGLIGENCE 18. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “17” of the Standard Complaint as though fully set forth at length herein. 19-34. Blodgett denies the allegations of paragraphs “19” thru “34” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “19” thru “34” of the Standard Complaint to the extent that they are directed to other Defendants. COUNT II – STRICT LIABILITY 35. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “34” of the Standard Complaint as though fully set forth at length herein. Page 3 of 15 269832875v.1 3 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 36-46. Blodgett denies the allegations of paragraphs “36” thru “46” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “36” thru “46” of the Standard Complaint to the extent that they are directed to other Defendants. COUNT III – BREACH OF WARRANTY 47. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “46” of the Standard Complaint as though fully set forth at length herein. 48-52. Blodgett denies the allegations of paragraphs “48” thru “52” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “48” thru “52” of the Standard Complaint to the extent that they are directed to other Defendants. COUNT IV – PREMISES LIABILITY & LABOR LAW AND NYS INDUSTRIAL CODE VIOLATIONS 53. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “52” of the Standard Complaint as though fully set forth at length herein. 54-64. Blodgett denies the allegations of paragraphs “54” thru “64” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “54” thru “64” of the Standard Complaint to the extent that they are directed to other Defendants. Page 4 of 15 269832875v.1 4 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 COUNT V – LIABILITY FOR CONTRACTORS AND SUB-CONTRACTORS 65. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “64” of the Standard Complaint as though fully set forth at length herein. 66. Paragraph "66" of the Standard Complaint contains no allegation of fact to which a responsive pleading is required. 67-78. Blodgett denies the allegations of paragraphs “67” thru “78” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “67” thru “78” of the Standard Complaint to the extent that they are directed to other Defendants. COUNT VI – LIABILITY FOR “DUST MASK” DEFENDANTS 79. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “78” of the Standard Complaint as though fully set forth at length herein. 80. Paragraph "80" of the Standard Complaint contains no allegation of fact to which a responsive pleading is required. 81-92. Blodgett denies the allegations of paragraphs “81” thru “92” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “81” thru “92” of the Standard Complaint to the extent that they are directed to other Defendants. Page 5 of 15 269832875v.1 5 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 COUNT VII – CIVIL CONSPIRACY AND FRAUD 93. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “92” of the Standard Complaint as though fully set forth at length herein. 94-99. Blodgett denies the allegations of paragraphs “94” thru “99” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “94” thru “99” of the Standard Complaint to the extent that they are directed to other Defendants. JOINT AND SEVERAL LIABILITY – EXCEPTIONS TO ARTICLE 16 100. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “99” of the Standard Complaint as though fully set forth at length herein. 101-102. Blodgett denies the allegations of paragraphs “101” thru “102” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “101” thru “102” of the Standard Complaint to the extent that they are directed to other Defendants. DISCLAIMER OF FEDERAL JURISDICTION 103. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “102” of the Standard Complaint as though fully set forth at length herein. Blodgett denies the allegations of paragraph “103” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Page 6 of 15 269832875v.1 6 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraph “103” of the Standard Complaint to the extent that they are directed to other Defendants. LOSS OF CONSORTIUM 104. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “103” of the Standard Complaint as though fully set forth at length herein. 105. Blodgett denies the allegations of paragraph “105” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraph “105” of the Standard Complaint to the extent that they are directed to other Defendants. PUNITIVE DAMAGES 106. Blodgett repeats, reiterates and re-alleges each and every one of its responses to the allegations contained in paragraphs “1” through “105” of the Standard Complaint as though fully set forth at length herein. 107-108. Blodgett denies the allegations of paragraphs “107” thru “108” of the Standard Complaint as directed against Blodgett and Blodgett respectfully refers all questions of law to the Court. Blodgett denies having knowledge or information sufficient to form a belief as to the truth and/or accuracy of the allegations contained in paragraphs “107” thru “108” of the Standard Complaint to the extent that they are directed to other Defendants. Page 7 of 15 269832875v.1 7 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 FIRST AFFIRMATIVE DEFENSE Blodgett was free of any and all negligence. SECOND AFFIRMATIVE DEFENSE Blodgett acted reasonably and with due care. THIRD AFFIRMATIVE DEFENSE Blodgett owed no duty to Plaintiffs. In the alternative, if any duty was owed, that duty was not violated by Blodgett. FOURTH AFFIRMATIVE DEFENSE The injuries and damages alleged by the Plaintiffs were the proximate result of wrongdoing of third parties over whom Blodgett had no control. FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ fault was greater than any alleged fault of Blodgett and, accordingly, Plaintiffs are barred from recovery. SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ recovery is reduced pursuant to C.P.L.R. Section 1411. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ recovery is limited pursuant to C.P.L.R. Section 1601. EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ Complaints fail to state a claim upon which relief can be granted. NINTH AFFIRMATIVE DEFENSE Blodgett has not mined, manufactured, processed, designed, developed, fashioned, fabricated, selected, assembled, inspected, tested, maintained for sale, marketed, promoted, packaged, supplied, sold, distributed, delivered, or installed any asbestos-containing products to or for Plaintiffs or Plaintiffs’ employers. TENTH AFFIRMATIVE DEFENSE Plaintiffs have failed to join indispensable parties to this action. Page 8 of 15 269832875v.1 8 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ action is barred, in whole or in part, by applicable statute(s) of limitations. TWELFTH AFFIRMATIVE DEFENSE Blodgett denies any breach of warranties, express, implied, written or oral. THIRTEENTH AFFIRMATIVE DEFENSE Blodgett is not liable to Plaintiffs in strict liability in tort. FOURTEENTH AFFIRMATIVE DEFENSE The alleged sale and/or manufacture of products by Blodgett as referred to in Plaintiffs’ Complaints are not subject to the warranty acts as embodied in the New York Commercial Code. FIFTEENTH AFFIRMATIVE DEFENSE The incident and injuries complained of were caused by unauthorized, unintended and improper use of the products complained of and as a result of Plaintiffs’ failure to exercise reasonable and ordinary care, caution or vigilance. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ damages were caused by the superseding and intervening acts or the fault of other parties over whom Blodgett has no control and for whose actions Blodgett is not liable. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ action is barred by the doctrines of waiver, estoppel, and laches. EIGHTEENTH AFFIRMATIVE DEFENSE Inasmuch as Plaintiffs are unable to identify the manufacturer or supplier of the product which allegedly caused their damages, Plaintiffs fail to state a claim upon which relief can be granted, because if relief were granted in the absence of product identification, it would contravene Blodgett’s constitutional right to substantive and procedural due process of law and equal protection as preserved by the Fourteenth Amendment to the United States Constitution and the New York State Constitution. NINTEENTH AFFIRMATIVE DEFENSE At all times relevant hereto, Blodgett complied with all the applicable laws, regulations and standards. Page 9 of 15 269832875v.1 9 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 TWENTIETH AFFIRMATIVE DEFENSE Plaintiffs’ claim for punitive damages violates Blodgett’s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and under the New York State Constitution. TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claim for punitive damages is barred by the proscription of the Eighth Amendment of the United States Constitution, as applied to the States through the Fourteenth Amendment, prohibiting the imposition of excessive fines, and Article I, Section 5 of the New York State Constitution. TWENTY-SECOND AFFIRMATIVE DEFENSE Blodgett denies the applicability of punitive damages theories under the facts of this litigation and, in any event, denies it is liable under said theories. TWENTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs failed to mitigate or minimize any damages allegedly sustained by Plaintiffs. TWENTY-FOURTH AFFIRMATIVE DEFENSE To the extent that the cause of action set forth in Plaintiffs’ Complaints seeks damages for which payment was received from collateral sources, such damages must be reduced pursuant to the provisions of C.P.L.R. Section 4545(c). TWENTY-FIFTH AFFIRMATIVE DEFENSE Blodgett is entitled to set-off pursuant to G.O.L. Section 15-108, including, without limitation, set-off of the liability shares of bankrupt non-parties. TWENTY-SIXTH AFFIRMATIVE DEFENSE The damages sustained by the Plaintiffs were not caused by any product produced, manufactured, sold, distributed, or installed by Blodgett. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Blodgett asserts that Plaintiffs’ claims are barred from recovery because the Blodgett product, in question, if any, was state-of-the-art at the time of its manufacture and/or contained an adequate warning. Page 10 of 15 269832875v.1 10 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claims and/or causes of action are preempted by the federal regulations of the Occupational Safety and Health Administration and other applicable federal laws and regulations. TWENTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs’ Complaints should be dismissed for lack of jurisdiction over the subject matter, lack of jurisdiction over the person and/or lack of venue and Blodgett reserves its right to move to dismiss or transfer Plaintiffs’ Complaints. THIRTIETH AFFIRMATIVE DEFENSE Plaintiffs assumed the risk and were fully cognizant of any and all circumstances surrounding the alleged incidents complained of and are therefore barred from recovery. THIRTY-FIRST AFFIRMATIVE DEFENSE Blodgett denies the existence and/or the applicability of the doctrines of absolute, enterprise, market share, concerted action, risk contribution, or alternative liability under New York law and the facts of this case, and denies that it is liable under any of those theories. THIRTY-SECOND AFFIRMATIVE DEFENSE No product for which Blodgett may be responsible was a substantial contributing factor in causing Plaintiffs any illness, injury and/or disease. THIRTY-THIRD AFFIRMATIVE DEFENSE The conditions at any premises for which Blodgett may be responsible were not a substantial contributing factor in causing Plaintiffs any illness, injury and/or disease. THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to recover under the doctrine of peculiar risk. THIRTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the doctrine of sophisticated intermediaries. THIRTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ cause of action for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. Page 11 of 15 269832875v.1 11 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 THIRTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ demand for punitive damages is barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution. THIRTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ demand for punitive damages is barred by the “ex post facto” clause of the United States Constitution. THIRTY-NINTH AFFIRMATIVE DEFENSE Blodgett hereby incorporates by reference and further would rely upon all defenses which have been or will be asserted by other Defendants or Third Parties in this action, except to the extent that they would impose liability on Blodgett, and are adopted and incorporated by reference as if fully set forth at length herein as defenses to Plaintiffs’ Complaints. FORTIETH AFFIRMATIVE DEFENSE Blodgett reserves the right to assert additional defenses and objections as a continuing investigation and/or discovery may disclose. WHEREFORE, Defendant G.S. Blodgett Corporation (“Blodgett”), demands judgment against Plaintiffs in its favor: (a) Dismissing the Complaints against Blodgett on the merits with prejudice and in its entirety; (b) Awarding Blodgett its costs and disbursements, including reasonable attorneys’ fees incurred in this action; and (c) Granting Blodgett such other and further relief as the Court may deem just and proper. CROSS-CLAIMS Defendant G.S. Blodgett Corporation (“Blodgett”), by way of cross-claim against all other Defendants, however constituted, joined in this action, or to be joined in this action, states as follows: FIRST COUNT 1. While denying any liability for the alleged incident and damages alleged in Plaintiffs’ Complaint, if judgment is recovered by Plaintiffs against Blodgett, the damages allegedly sustained by Plaintiffs arose through the direct and primary negligence of and/or other Page 12 of 15 269832875v.1 12 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 tortious actions of the co-defendants, and the alleged negligence of Blodgett was merely secondary, constructive, technical, imputed and/or vicarious. 2. Accordingly, said co-defendants are obligated, by the operation of law, contract or otherwise, to indemnify Blodgett and to hold Blodgett harmless from any and all claims as to the subject incident and damages. WHEREFORE, Defendant G.S. Blodgett Corporation, demands judgment against all co- defendants and indemnification for any and all sums as may be found due against it in favor of Plaintiffs, together with interest and costs. SECOND COUNT 1. Pursuant to C.P.L.R. § 1401, Blodgett is entitled to contribution from and against all persons and entities that share liability to Plaintiff(s), including, without limitation, bankrupt non-parties and parties not joined in this action. WHEREFORE, Defendant G.S. Blodgett Corporation, demands judgment against all co- defendants and contribution from any and all sums as may be found due against it in favor of Plaintiff(s), together with interest and costs. ANSWER TO ALL CROSS-CLAIMS Defendant G.S. Blodgett Corporation denies any and all allegations in any cross-claims or other claims for contribution or indemnity or otherwise asserted or to be asserted against it by any other party. DEMAND FOR JURY TRIAL Defendant G.S. Blodgett Corporation demands a trial by jury as to all issues contained herein. Page 13 of 15 269832875v.1 13 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 WHEREFORE, Defendant G.S. Blodgett Corporation demands judgment dismissing Plaintiffs’ Complaints and all cross-claims in their entirety, with costs and disbursements, and in the event of any judgment over and against G.S. Blodgett Corporation, demands judgment, contribution, and/or indemnity in accordance with the principles of fault and apportionment, along with costs and disbursements, including reasonable attorneys’ fees. Dated: June 21, 2022 Respectfully Submitted, Jason Liam Schmolze Jason Liam Schmolze Attorneys for Defendant G.S. Blodgett Corporation Wilson Elser Moskowitz Edelman & Dicker LLP 150 East 42nd Street, Suite #23 New York, NY 10017 973.735.1445 (Direct) To: Levy Konigsberg, LLP Attorneys for Plaintiffs 800 Third Avenue, 11th Floor New York, NY 10022 All Known Defendants (Via NYSCEF) Page 14 of 15 269832875v.1 14 of 15 FILED: NEW YORK COUNTY CLERK 06/21/2022 01:17 PM INDEX NO. 190247/2021 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 06/21/2022 ATTORNEY’S VERIFICATION STATE OF NEW JERSEY } } s.s. COUNTY OF NEW YORK } Jason Liam Schmolze, being duly sworn, deposes and says that I am an attorney with the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, that I have read the foregoing Answer by Defendant G.S. Blodgett Corporation and know the contents thereof, and that the same is true to my own knowledge, except as to matters therein stated to be alleged upon information and belief, and that as to those matters, I believe them to be true. The source of deponent’s information and the grounds of his belief as to all the matters therein alleged upon information and belief are reports from and communication had with said Defendant. The reason this verification is made by deponent and not by Defendant is because Defendant does not reside within the County where their attorneys have an office. Dated: June 21, 2022 Jason Liam Schmolze Jason Liam Schmolze Page 15 of 15 269832875v.1 15 of 15