On June 09, 2021 a
Answer
was filed
involving a dispute between
Paula A. Karnisky His Spouse,
Paula A. Karnisky
His Spouse,
Robert A. Karnisky,
and
Air & Liquid Systems Corporation As Successor By Merger To Buffalo Pumps, Inc.,
Air & Liquid Systems Corporation
As Successor By Merger To Buffalo Pumps, Inc.,
Alray Construction Corp. F K A Hebert Construction Corp.,
Alray Construction Corp.
F K A Hebert Construction Corp.,
Armstrong International, Inc.,
Armstrong Pumps Inc.,
Aurora Pump Company,
Cleaver-Brooks, Inc. F K A Aqua-Chem, Inc.,
Cleaver-Brooks, Inc.
F K A Aqua-Chem, Inc.,
Clyde Union Inc. F K A Union Pump Company,
Clyde Union Inc.
F K A Union Pump Company,
Crane Co.,
Elmer W. Davis Inc.,
Flowserve Corporation F K A The Duriron Company, Inc. Sued As Successor By Merger To Durco International,
Flowserve Corporation
F K A The Duriron Company, Inc. Sued As Successor By Merger To Durco International,
Flowserve Us, Inc. Solely As Successor To Rockwell Manufacturing Company Edward Valves, Inc. And Edward Vogt Valve Company,
Flowserve Us, Inc.
Solely As Successor To Rockwell Manufacturing Company Edward Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation Individually And As Successor To Northern Pump Company And Coffin,
Fmc Corporation
Individually And As Successor To Northern Pump Company And Coffin,
Foster Wheeler Llc,
Frontier Insulation Contractors, Inc. F K A Frontier Insulation And Asbestos, Inc.,
Frontier Insulation Contractors, Inc.
F K A Frontier Insulation And Asbestos, Inc.,
Gardner Denver, Inc.,
General Electric Company,
Goulds Pumps, Incorporated F K A Goulds Pumps Merger Corporation,
Goulds Pumps, Incorporated
F K A Goulds Pumps Merger Corporation,
Grinnell Llc,
Honeywell International Inc. F K A Alliedsignal, Inc. And As Successor In Interest To The Bendix Corporation,
Honeywell International Inc.
F K A Alliedsignal, Inc. And As Successor In Interest To The Bendix Corporation,
Imo Industries Inc. Individually And As Successor In Interest To Imo Delaval,
Imo Industries Inc.
Individually And As Successor In Interest To Imo Delaval,
Industrial Insulation Sales, Inc.,
Insulation Distributors, Inc.,
Itt Corporation F K A Itt Industries, Inc. Individually And As Successor To Itt Fluid Products Corp. Itt Hoffman Itt Bell & Gossett Company And Itt Marlow,
Itt Corporation
F K A Itt Industries, Inc. Individually And As Successor To Itt Fluid Products Corp. Itt Hoffman Itt Bell & Gossett Company And Itt Marlow,
Mader Capital, Inc.,
Mader Plastering Corp.,
Met-Pro Technologies Llc A Ceco Environmental Company Successor By Merger To Met-Pro Corporation On Behalf Of Its Dean Pump Division,
Met-Pro Technologies Llc
A Ceco Environmental Company Successor By Merger To Met-Pro Corporation On Behalf Of Its Dean Pump Division,
Neles-Jamesbury, Inc,
Pfaudler, Inc.,
R.E. Hebert And Company, Inc.,
Riley Power Inc. F K A Babcock Borsig Power, Inc. F K A Db Riley, Inc. F K A Riley Stoker Corporation,
Riley Power Inc.
F K A Babcock Borsig Power, Inc. F K A Db Riley, Inc. F K A Riley Stoker Corporation,
Rochester Acoustical Corp.,
Rochester Industrial Insulation, Inc.,
Spirax Sarco, Inc. Individually And As Successor To Sarco Company, Inc.,
Spirax Sarco, Inc.
Individually And As Successor To Sarco Company, Inc.,
Spx Cooling Technologies, Inc. F K A Marley Cooling Technologies, Inc. F K A The Marley Cooling Tower Company,
Spx Cooling Technologies, Inc.
F K A Marley Cooling Technologies, Inc. F K A The Marley Cooling Tower Company,
The Mader Corporation,
The Marley-Wylain Company F K A Weil-Mclain,
The Marley-Wylain Company
F K A Weil-Mclain,
The William Powell Company,
Union Carbide Corporation,
Velan Valve Corp.,
Viacomcbs, Inc.,
Warren Pumps Llc,
Watts Water Technologies, Inc
F K A Watts Industries, Inc, Individually And As Successor To Mueller Steam Specialty Company,
Weir Valves & Controls Usa, Inc. D B A Atwood & Morrill Co., Inc.,
Weir Valves & Controls Usa, Inc.
D B A Atwood & Morrill Co., Inc.,
William Summerhays' Sons Corporation,
Zurn Industries, Llc Individually And As Successor In Interest To Erie City Iron Workers Corporation,
Zurn Industries, Llc
Individually And As Successor In Interest To Erie City Iron Workers Corporation,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM INDEX NO. E2021005118
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2751533
Book Page CIVIL
Return To: No. Pages: 13
RONALD GEORGE HULL
69 Cascade Drive Instrument: MISCELLANEOUS DOCUMENT
Suite 102
Rochester, NY 16614 Control #: 202106170424
Index #: E2021005118
Date: 06/17/2021
Karnisky, Robert A. Time: 10:46:15 AM
Karnisky, Paula A.
Air & Liquid Systems Corporation
Alray Construction Corp.
Armstrong International, Inc.
Armstrong Pumps Inc.
Aurora Pump Company
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK
SEVENTH JUDICIAL DISTRICT
___________________________________________
In Re: Seventh Judicial District Asbestos Litigation
___________________________________________
This Document Applies to:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
___________________________________________
ROBERT A. KARNISKY and
PAULA A. KARNISKY, his spouse,
Plaintiffs, ANSWER TO
COMPLAINT
v.
Index No.: E2021005118
AIR & LIQUID SYSTEMS CORP., et al.,
Defendants.
____________________________________________
Defendant, ROCHESTER INDUSTRIAL INSULATIONS INC. (“RII”), by its attorneys,
Heisman Nunes & Hull LLP, for its Answer to Plaintiffs’ Complaint responds as follows:
1. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,
22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 53, 75, 76, 77,
78, 79, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 101, 102, 103, 104, 105,
and 107 of Plaintiffs’ Complaint and, therefore, denies the allegations.
2. Denies the allegations and characterizations contained in paragraphs 2, 46, 47, 48, 49,
50, 51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 69, 70, 71, 72, 73, 100, and 108 of
Plaintiffs’ Complaint.
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3. With respect to the allegations in Paragraphs 33, and 99 and of Plaintiffs’ Complaint,
admits only that RII is a domestic corporation registered to transact business in the State of New
York and a contractor of insulation services, but except as thus expressly admitted, denies the
remainder of the allegations and characterizations contained in that paragraph.
4. As to the allegations contained in paragraphs 52, 68, 74, 80, and 106 of Plaintiffs’
Complaint, Defendant RII repeats and realleges its responses to each of the paragraphs incorporated
by reference in paragraphs 52, 68, 74, 80, and 106 of Plaintiffs’ Complaint.
5. Denies each and every other allegation contained in Plaintiffs’ Complaint not already
admitted, denied or otherwise controverted.
FIRST AFFIRMATIVE DEFENSE
1. Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of
limitations.
SECOND AFFIRMATIVE DEFENSE
2. Plaintiffs’ claims have not been maintained in a timely fashion and have been
neglected and are barred by the doctrine of laches, waiver and estoppel.
THIRD AFFIRMATIVE DEFENSE
3. All claims brought on the New York Statute of Limitations enacted on or about July
31, 1986, are time-barred because the statute is unconstitutional.
FOURTH AFFIRMATIVE DEFENSE
4. Plaintiffs’ claims fail to state a cause of action upon which relief can be granted.
FIFTH AFFIRMATIVE DEFENSE
5. In the event that either Plaintiff was employed by RII, Plaintiffs’ sole and exclusive
remedy is under the Workers’ Compensation Law of the State of New York.
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SIXTH AFFIRMATIVE DEFENSE
The state of knowledge, or state of the art, at the time of manufacture and/or distribution of
the product or materials, did not reasonably allow RII to know about, or to take steps sufficient to
alleviate, the alleged risks of which Plaintiffs complain.
SEVENTH AFFIRMATIVE DEFENSE
6. The injuries, losses or damages alleged in the Complaint were caused by the
contributory fault, negligence and lack of care of Plaintiffs or other individuals for whose conduct
RII is not responsible.
EIGHTH AFFIRMATIVE DEFENSE
7. The injuries, losses, damages and occurrences alleged in the Complaint were the
result of an independent and intervening cause or causes over which RII had no control or right of
control and in no way participated.
NINTH AFFIRMATIVE DEFENSE
8. Defendant, RII, claims limitation of liability pursuant to CPLR Article 16.
TENTH AFFIRMATIVE DEFENSE
9. There exists no proximate causation between any alleged act or alleged breach of duty
by RII and Plaintiffs’ alleged damages, and all of Plaintiffs alleged damages were the result of the
conduct of persons other than RII.
ELEVENTH AFFIRMATIVE DEFENSE
10. The product and/or material alleged to have been manufactured or distributed by RII
was not in the same condition at the time of the alleged exposures as it was when it left RII’s custody
and control.
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TWELFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are diminished, in whole or in part, in an amount fairly allocable to any
party with which Plaintiffs have settled or may settle.
THIRTEENTH AFFIRMATIVE DEFENSE
11. RII complied with all applicable laws, regulations and standards at all relevant times.
FOURTEENTH AFFIRMATIVE DEFENSE
12. Plaintiff failed to cooperate fully in his medical care and treatment and did not inform
his treating physicians of his complete medical history and/or give complete and truthful responses
to questions posed.
FIFTEENTH AFFIRMATIVE DEFENSE
13. In so far as the Complaint and each cause of action considered separately allege a
claim to recover damages for personal injuries which accrued on or after September 1, 1975, the
amount of damages recoverable thereon must be diminished by reason of the culpable conduct
attributable to Plaintiffs including contributory negligence and assumption of risk, in a proportion
which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which caused the
damages.
SIXTEENTH AFFIRMATIVE DEFENSE
14. In so far as the Complaint and each cause of action considered separately may allege
a cause of action accruing before September 1, 1975, each such claim is barred by reason of the
culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk.
SEVENTEENTH AFFIRMATIVE DEFENSE
15. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and
unavailable because of the provisions of the applicable statute of frauds.
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EIGHTEENTH AFFIRMATIVE DEFENSE
16. If it should be proven at the time of trial that any of the products or materials
distributed by RII were furnished to Plaintiff’s employers (or to the United States Government) and
that Plaintiff thereafter came into contact with these products or materials (which is specifically
denied), then any such products or materials were furnished in strict conformity to the conditions
specified or to the specifications furnished by Plaintiff’s employers (or the United States
government).
NINETEENTH AFFIRMATIVE DEFENSE
17. Upon information and belief, Plaintiff, his co-workers, employers and others misused,
abused, mistreated and misapplied the alleged asbestos-containing product as alleged in Plaintiffs’
Complaint.
18. If the Court finds any misuse, abuse, mistreatment and/or misapplication of the
product caused and/or contributed to the alleged damages or injuries to Plaintiff, then, this answering
Defendant requests that the amount of damages which might be recoverable shall be diminished by
the proportion which the same misuse, abuse, mistreatment and/or misapplication, attributed to
Plaintiff, his co-workers, employers and/or other bears to the conduct which caused the alleged
damages or injuries.
TWENTIETH AFFIRMATIVE DEFENSE
19. As to all causes of action which are based upon express or implied warranties and/or
representations, these causes of action are legally insufficient as against this answering Defendant by
reason of lack of privity of contract between Plaintiff and this answering Defendant.
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TWENTY-FIRST AFFIRMATIVE DEFENSE
20. In the event that any breach of warranty is proven, Plaintiff failed to give proper and
prompt notice of any such breach of warranty to this answering Defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE
21. Plaintiff did not directly or indirectly purchase any asbestos-containing products or
materials from this answering Defendant and Plaintiff neither received nor relied upon any
representation or warranty allegedly made by this answering Defendant.
TWENTY-THIRD AFFIRMATIVE DEFENSE
22. To the extent that the causes of action pled by Plaintiffs fails to accord with the
Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, the Plaintiffs’ claim
is time-barred.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
23. This answering Defendant denies that Plaintiff had any exposure to any asbestos-
containing product mined, processed, manufactured, supplied, developed, tested, fashioned,
packaged, distributed, delivered, sold and/or otherwise placed into the stream of commerce by this
answering Defendant, and more particularly, denies, upon information and belief, that this answering
Defendant mined, processed, manufactured, supplied, developed, tested, fashioned, packaged,
distributed, delivered, sold and/or otherwise placed into the stream of commerce any asbestos-
containing product at the time and upon the dates alleged in the Complaint.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
24. This answering Defendant denies specifically that, during the periods of exposure
alleged in the Complaint by Plaintiff, itmined, processed, manufactured, designed, supplied,
developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed into the
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stream of commerce a substantial and/or any percentage of the asbestos-containing product to which
Plaintiff caused to come into contact and which Plaintiff was caused to breathe, inhale and digest
which thereby allegedly caused the Plaintiff’s injuries and resultant damages alleged in the
Complaint.
25. In the event it should be proven at the time of trial that this Defendant is subject to
market share liability, then this answering Defendant's share of such liability would be of such a de
minimis amount as to make its contribution for damages negligible, and this answering Defendant
would be entitled to contribution, either in whole or in part, from the co-Defendants.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
26. Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or
reduce the injuries and disability alleged in Plaintiffs’ Complaint.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
27. This answering Defendant specifically denies that the asbestos-containing products
alleged in Plaintiffs’ Complaint are products within the meaning and scope of Restatement of Torts
§402(a) and as such, the Complaint fails to state a cause of action in strict liability.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
28. Upon information and belief, Plaintiff contributed to his illnesses and injuries, either
in whole or in part, by the exposure to and use of other substances, products, medications and drugs.
TWENTY-NINTH AFFIRMATIVE DEFENSE
29. This action cannot proceed in the absence of all parties who should be named in
accordance with CPLR §1001.
THIRTIETH AFFIRMATIVE DEFENSE
30. Plaintiffs have failed to plead and cannot prove special damages.
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THIRTY-FIRST AFFIRMATIVE DEFENSE
31. Any damage sustained by the Plaintiff was caused by the culpable conduct of the
Plaintiff including contributory negligence or assumption of risk and not by the culpable conduct or
negligence of the answering Defendant.
THIRTY-SECOND AFFIRMATIVE DEFENSE
32. In the event it is established that the conduct of this answering Defendant caused or
contributed, in whole or in part, to the injuries claimed by the Plaintiffs herein, the conduct on the
part of this answering Defendant was not wanton, reckless, malicious, willful or intentional, and was
otherwise privileged and justified.
THIRTY-THIRD AFFIRMATIVE DEFENSE
33. Plaintiffs’ Complaint, to the extent that it seeks exemplary or punitive damages,
violates Defendant's rights to procedural due process under the Fourteenth Amendment of the United
States Constitution, the Constitution of the State of New York and, therefore, fails to state a cause of
action upon which either exemplary or punitive damages can be awarded.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
34. Plaintiffs’ Complaint, to the extent that it seeks exemplary or punitive damages,
violates Defendant's rights to protection from "excessive fines" as provided in the Eighth
Amendment of the United States Constitution, Article I, Section 5 of the Constitution of the State of
New York and violates Defendant's rights to substantive due process as provided in the Fifth and
Fourteenth Amendments of the United States Constitution, the Constitution of the State of New
York and, therefore, fails to state a cause of action supporting the exemplary or punitive damages
claimed.
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THIRTY-FIFTH AFFIRMATIVE DEFENSE
35. Plaintiffs’ Complaint, to the extent that it seeks exemplary or punitive damages, is
barred by the double jeopardy clauses of the Fifth Amendment of the United States Constitution, as
applied to the states through the Fourteenth Amendment and Article 1, Section 6 of the New York
State Constitution.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
36. Upon information and belief, the product distributed by the answering Defendant was
not defective.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
37. Upon information and belief, if the product was defective, the defect was not a
substantial factor in bringing about the damages sustained by Plaintiff.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
38. Upon information and belief, at the time of the occurrence described in the
Complaint, the product was not being used for the purpose and in the manner normally intended.
THIRTY-NINTH AFFIRMATIVE DEFENSE
39. Upon information and belief, the Plaintiff, as user of the product, would, by the
exercise of reasonable care, have both discovered the defect and perceived its danger and the
Plaintiff, by the exercise of reasonable care, would have otherwise averted injuries.
FORTIETH AFFIRMATIVE DEFENSE
40. Upon information and belief, the injuries and damages sustained by the Plaintiff, if
any, were caused, in whole or in part, by the operation of nature.
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FORTY-FIRST AFFIRMATIVE DEFENSE
41. All defenses which have been, or will be, asserted by other Defendants and/or any
third-party defendants in this action, are adopted and incorporated by reference, as if more fully set
forth herein, as defenses to Plaintiffs’ Complaint. In addition, RII will reply upon any and all further
defenses which become available or appear during discovery proceedings in this action, and hereby
specifically reserves the right to amend its answer for the purpose of asserting any such additional
affirmative defenses.
FORTY-SECOND AFFIRMATIVE DEFENSE
42. No acts and/or omissions of this Defendant proximately caused Plaintiffs any
damages.
FORTY- THIRD AFFIRMATIVE DEFENSE AND
FIRST CROSS-CLAIM AGAINST ALL CO-DEFENDANTS
43. If Plaintiffs sustained injury and damages alleged in the Complaint by reason of fault
other than their own and judgment is recovered against this answering Defendant, then the liability
of RII will have been brought about by reason of the primary carelessness of the co-Defendants,
without any carelessness on the part of RII who is thereby entitled to indemnity and/or contribution
from the co-Defendants for all or part of such judgment and such amount as shall be determined
ultimately at the trial of this action.
WHEREFORE, Defendant, Rochester Industrial Insulations Inc., demands judgment for the
following relief:
1. Dismissing Plaintiffs’ Complaint;
2. Demanding that in the event Plaintiffs recover judgment herein, that any such
judgment be diminished pursuant to the provisions of Article 14 of the CPLR;
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3. Demanding that the ultimate rights and responsibilities among the Defendants be
determined in this action with judgment over accordingly;
4. Demanding indemnification and contribution from the co-Defendants in the event
that Plaintiffs recover judgment against the Defendant, Rochester Industrial
Insulations Inc.;
5. The costs and disbursements incurred as a result of this action; and
6. Such other and further relief as this Court deems just and proper.
Dated: June 17, 2021 HEISMAN NUNES & HULL LLP
Rochester, New York
s/Ronald G. Hull
Ronald G. Hull, Esq., of Counsel
Attorneys for Defendant
Rochester Industrial Insulations Inc.
69 Cascade Drive; Suite 102
Rochester, New York 14614
585-270-6207
TO: LIPSITZ, PONTERIO & COMERFORD, LLC
Sean M. Esford, Esq.
Attorneys for Plaintiff s
424 Main Street, Suite 1500
Buffalo, New York 14202
All Defense Counsel of Record
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VERIFICATION
STATE OF NEW YORK)
COUNTY OF MONROE) ss.:
RONALD G. HULL, ESQ., being duly sworn, deposes and says:
That he is member of the law firm of Heisman Nunes & Hull LLP, the attorneys for
Defendant, Rochester Industrial Insulations Inc., herein; that he has read the foregoing Answer to
Complaint and knows the contents thereof; that the same is true to his own knowledge except as to
the matters therein stated to be alleged upon information and belief and as to those matters, he
believes them to be true.
That the reason this verification is made by the deponent and not by Defendant is that the
Defendant is a corporation not located in the county where your deponent’s offices are located.
That the sources of deponent’s knowledge and the grounds for his belief are from the
correspondence with said Defendant and correspondence and conversations with the representatives
of said defendant.
s/Ronald G. Hull _________________
Ronald G. Hull
Sworn to before me this
17th day of June, 2021.
s/Janice I. Hance______
Notary Public
JANICE I. HANCE
Notary Public, State of New York
MONROE COUNTY
Commission Expires on Nov. 9, 2022
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FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM INDEX NO. E2021005118 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2751533 Book Page CIVIL Return To: No. Pages: 13 RONALD GEORGE HULL 69 Cascade Drive Instrument: MISCELLANEOUS DOCUMENT Suite 102 Rochester, NY 16614 Control #: 202106170424 Index #: E2021005118 Date: 06/17/2021 Karnisky, Robert A. Time: 10:46:15 AM Karnisky, Paula A. Air & Liquid Systems Corporation Alray Construction Corp. Armstrong International, Inc. Armstrong Pumps Inc. Aurora Pump Company Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 13 202106170424 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 SUPREME COURT OF THE STATE OF NEW YORK SEVENTH JUDICIAL DISTRICT ___________________________________________ In Re: Seventh Judicial District Asbestos Litigation ___________________________________________ This Document Applies to: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE ___________________________________________ ROBERT A. KARNISKY and PAULA A. KARNISKY, his spouse, Plaintiffs, ANSWER TO COMPLAINT v. Index No.: E2021005118 AIR & LIQUID SYSTEMS CORP., et al., Defendants. ____________________________________________ Defendant, ROCHESTER INDUSTRIAL INSULATIONS INC. (“RII”), by its attorneys, Heisman Nunes & Hull LLP, for its Answer to Plaintiffs’ Complaint responds as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 53, 75, 76, 77, 78, 79, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 101, 102, 103, 104, 105, and 107 of Plaintiffs’ Complaint and, therefore, denies the allegations. 2. Denies the allegations and characterizations contained in paragraphs 2, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 69, 70, 71, 72, 73, 100, and 108 of Plaintiffs’ Complaint. 2 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 3. With respect to the allegations in Paragraphs 33, and 99 and of Plaintiffs’ Complaint, admits only that RII is a domestic corporation registered to transact business in the State of New York and a contractor of insulation services, but except as thus expressly admitted, denies the remainder of the allegations and characterizations contained in that paragraph. 4. As to the allegations contained in paragraphs 52, 68, 74, 80, and 106 of Plaintiffs’ Complaint, Defendant RII repeats and realleges its responses to each of the paragraphs incorporated by reference in paragraphs 52, 68, 74, 80, and 106 of Plaintiffs’ Complaint. 5. Denies each and every other allegation contained in Plaintiffs’ Complaint not already admitted, denied or otherwise controverted. FIRST AFFIRMATIVE DEFENSE 1. Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of limitations. SECOND AFFIRMATIVE DEFENSE 2. Plaintiffs’ claims have not been maintained in a timely fashion and have been neglected and are barred by the doctrine of laches, waiver and estoppel. THIRD AFFIRMATIVE DEFENSE 3. All claims brought on the New York Statute of Limitations enacted on or about July 31, 1986, are time-barred because the statute is unconstitutional. FOURTH AFFIRMATIVE DEFENSE 4. Plaintiffs’ claims fail to state a cause of action upon which relief can be granted. FIFTH AFFIRMATIVE DEFENSE 5. In the event that either Plaintiff was employed by RII, Plaintiffs’ sole and exclusive remedy is under the Workers’ Compensation Law of the State of New York. 2 3 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 SIXTH AFFIRMATIVE DEFENSE The state of knowledge, or state of the art, at the time of manufacture and/or distribution of the product or materials, did not reasonably allow RII to know about, or to take steps sufficient to alleviate, the alleged risks of which Plaintiffs complain. SEVENTH AFFIRMATIVE DEFENSE 6. The injuries, losses or damages alleged in the Complaint were caused by the contributory fault, negligence and lack of care of Plaintiffs or other individuals for whose conduct RII is not responsible. EIGHTH AFFIRMATIVE DEFENSE 7. The injuries, losses, damages and occurrences alleged in the Complaint were the result of an independent and intervening cause or causes over which RII had no control or right of control and in no way participated. NINTH AFFIRMATIVE DEFENSE 8. Defendant, RII, claims limitation of liability pursuant to CPLR Article 16. TENTH AFFIRMATIVE DEFENSE 9. There exists no proximate causation between any alleged act or alleged breach of duty by RII and Plaintiffs’ alleged damages, and all of Plaintiffs alleged damages were the result of the conduct of persons other than RII. ELEVENTH AFFIRMATIVE DEFENSE 10. The product and/or material alleged to have been manufactured or distributed by RII was not in the same condition at the time of the alleged exposures as it was when it left RII’s custody and control. 3 4 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 TWELFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are diminished, in whole or in part, in an amount fairly allocable to any party with which Plaintiffs have settled or may settle. THIRTEENTH AFFIRMATIVE DEFENSE 11. RII complied with all applicable laws, regulations and standards at all relevant times. FOURTEENTH AFFIRMATIVE DEFENSE 12. Plaintiff failed to cooperate fully in his medical care and treatment and did not inform his treating physicians of his complete medical history and/or give complete and truthful responses to questions posed. FIFTEENTH AFFIRMATIVE DEFENSE 13. In so far as the Complaint and each cause of action considered separately allege a claim to recover damages for personal injuries which accrued on or after September 1, 1975, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiffs including contributory negligence and assumption of risk, in a proportion which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which caused the damages. SIXTEENTH AFFIRMATIVE DEFENSE 14. In so far as the Complaint and each cause of action considered separately may allege a cause of action accruing before September 1, 1975, each such claim is barred by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk. SEVENTEENTH AFFIRMATIVE DEFENSE 15. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and unavailable because of the provisions of the applicable statute of frauds. 4 5 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 EIGHTEENTH AFFIRMATIVE DEFENSE 16. If it should be proven at the time of trial that any of the products or materials distributed by RII were furnished to Plaintiff’s employers (or to the United States Government) and that Plaintiff thereafter came into contact with these products or materials (which is specifically denied), then any such products or materials were furnished in strict conformity to the conditions specified or to the specifications furnished by Plaintiff’s employers (or the United States government). NINETEENTH AFFIRMATIVE DEFENSE 17. Upon information and belief, Plaintiff, his co-workers, employers and others misused, abused, mistreated and misapplied the alleged asbestos-containing product as alleged in Plaintiffs’ Complaint. 18. If the Court finds any misuse, abuse, mistreatment and/or misapplication of the product caused and/or contributed to the alleged damages or injuries to Plaintiff, then, this answering Defendant requests that the amount of damages which might be recoverable shall be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication, attributed to Plaintiff, his co-workers, employers and/or other bears to the conduct which caused the alleged damages or injuries. TWENTIETH AFFIRMATIVE DEFENSE 19. As to all causes of action which are based upon express or implied warranties and/or representations, these causes of action are legally insufficient as against this answering Defendant by reason of lack of privity of contract between Plaintiff and this answering Defendant. 5 6 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 TWENTY-FIRST AFFIRMATIVE DEFENSE 20. In the event that any breach of warranty is proven, Plaintiff failed to give proper and prompt notice of any such breach of warranty to this answering Defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE 21. Plaintiff did not directly or indirectly purchase any asbestos-containing products or materials from this answering Defendant and Plaintiff neither received nor relied upon any representation or warranty allegedly made by this answering Defendant. TWENTY-THIRD AFFIRMATIVE DEFENSE 22. To the extent that the causes of action pled by Plaintiffs fails to accord with the Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, the Plaintiffs’ claim is time-barred. TWENTY-FOURTH AFFIRMATIVE DEFENSE 23. This answering Defendant denies that Plaintiff had any exposure to any asbestos- containing product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed into the stream of commerce by this answering Defendant, and more particularly, denies, upon information and belief, that this answering Defendant mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed into the stream of commerce any asbestos- containing product at the time and upon the dates alleged in the Complaint. TWENTY-FIFTH AFFIRMATIVE DEFENSE 24. This answering Defendant denies specifically that, during the periods of exposure alleged in the Complaint by Plaintiff, itmined, processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed into the 6 7 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 stream of commerce a substantial and/or any percentage of the asbestos-containing product to which Plaintiff caused to come into contact and which Plaintiff was caused to breathe, inhale and digest which thereby allegedly caused the Plaintiff’s injuries and resultant damages alleged in the Complaint. 25. In the event it should be proven at the time of trial that this Defendant is subject to market share liability, then this answering Defendant's share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and this answering Defendant would be entitled to contribution, either in whole or in part, from the co-Defendants. TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disability alleged in Plaintiffs’ Complaint. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27. This answering Defendant specifically denies that the asbestos-containing products alleged in Plaintiffs’ Complaint are products within the meaning and scope of Restatement of Torts §402(a) and as such, the Complaint fails to state a cause of action in strict liability. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. Upon information and belief, Plaintiff contributed to his illnesses and injuries, either in whole or in part, by the exposure to and use of other substances, products, medications and drugs. TWENTY-NINTH AFFIRMATIVE DEFENSE 29. This action cannot proceed in the absence of all parties who should be named in accordance with CPLR §1001. THIRTIETH AFFIRMATIVE DEFENSE 30. Plaintiffs have failed to plead and cannot prove special damages. 7 8 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 THIRTY-FIRST AFFIRMATIVE DEFENSE 31. Any damage sustained by the Plaintiff was caused by the culpable conduct of the Plaintiff including contributory negligence or assumption of risk and not by the culpable conduct or negligence of the answering Defendant. THIRTY-SECOND AFFIRMATIVE DEFENSE 32. In the event it is established that the conduct of this answering Defendant caused or contributed, in whole or in part, to the injuries claimed by the Plaintiffs herein, the conduct on the part of this answering Defendant was not wanton, reckless, malicious, willful or intentional, and was otherwise privileged and justified. THIRTY-THIRD AFFIRMATIVE DEFENSE 33. Plaintiffs’ Complaint, to the extent that it seeks exemplary or punitive damages, violates Defendant's rights to procedural due process under the Fourteenth Amendment of the United States Constitution, the Constitution of the State of New York and, therefore, fails to state a cause of action upon which either exemplary or punitive damages can be awarded. THIRTY-FOURTH AFFIRMATIVE DEFENSE 34. Plaintiffs’ Complaint, to the extent that it seeks exemplary or punitive damages, violates Defendant's rights to protection from "excessive fines" as provided in the Eighth Amendment of the United States Constitution, Article I, Section 5 of the Constitution of the State of New York and violates Defendant's rights to substantive due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution, the Constitution of the State of New York and, therefore, fails to state a cause of action supporting the exemplary or punitive damages claimed. 8 9 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 THIRTY-FIFTH AFFIRMATIVE DEFENSE 35. Plaintiffs’ Complaint, to the extent that it seeks exemplary or punitive damages, is barred by the double jeopardy clauses of the Fifth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment and Article 1, Section 6 of the New York State Constitution. THIRTY-SIXTH AFFIRMATIVE DEFENSE 36. Upon information and belief, the product distributed by the answering Defendant was not defective. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 37. Upon information and belief, if the product was defective, the defect was not a substantial factor in bringing about the damages sustained by Plaintiff. THIRTY-EIGHTH AFFIRMATIVE DEFENSE 38. Upon information and belief, at the time of the occurrence described in the Complaint, the product was not being used for the purpose and in the manner normally intended. THIRTY-NINTH AFFIRMATIVE DEFENSE 39. Upon information and belief, the Plaintiff, as user of the product, would, by the exercise of reasonable care, have both discovered the defect and perceived its danger and the Plaintiff, by the exercise of reasonable care, would have otherwise averted injuries. FORTIETH AFFIRMATIVE DEFENSE 40. Upon information and belief, the injuries and damages sustained by the Plaintiff, if any, were caused, in whole or in part, by the operation of nature. 9 10 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 FORTY-FIRST AFFIRMATIVE DEFENSE 41. All defenses which have been, or will be, asserted by other Defendants and/or any third-party defendants in this action, are adopted and incorporated by reference, as if more fully set forth herein, as defenses to Plaintiffs’ Complaint. In addition, RII will reply upon any and all further defenses which become available or appear during discovery proceedings in this action, and hereby specifically reserves the right to amend its answer for the purpose of asserting any such additional affirmative defenses. FORTY-SECOND AFFIRMATIVE DEFENSE 42. No acts and/or omissions of this Defendant proximately caused Plaintiffs any damages. FORTY- THIRD AFFIRMATIVE DEFENSE AND FIRST CROSS-CLAIM AGAINST ALL CO-DEFENDANTS 43. If Plaintiffs sustained injury and damages alleged in the Complaint by reason of fault other than their own and judgment is recovered against this answering Defendant, then the liability of RII will have been brought about by reason of the primary carelessness of the co-Defendants, without any carelessness on the part of RII who is thereby entitled to indemnity and/or contribution from the co-Defendants for all or part of such judgment and such amount as shall be determined ultimately at the trial of this action. WHEREFORE, Defendant, Rochester Industrial Insulations Inc., demands judgment for the following relief: 1. Dismissing Plaintiffs’ Complaint; 2. Demanding that in the event Plaintiffs recover judgment herein, that any such judgment be diminished pursuant to the provisions of Article 14 of the CPLR; 10 11 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 3. Demanding that the ultimate rights and responsibilities among the Defendants be determined in this action with judgment over accordingly; 4. Demanding indemnification and contribution from the co-Defendants in the event that Plaintiffs recover judgment against the Defendant, Rochester Industrial Insulations Inc.; 5. The costs and disbursements incurred as a result of this action; and 6. Such other and further relief as this Court deems just and proper. Dated: June 17, 2021 HEISMAN NUNES & HULL LLP Rochester, New York s/Ronald G. Hull Ronald G. Hull, Esq., of Counsel Attorneys for Defendant Rochester Industrial Insulations Inc. 69 Cascade Drive; Suite 102 Rochester, New York 14614 585-270-6207 TO: LIPSITZ, PONTERIO & COMERFORD, LLC Sean M. Esford, Esq. Attorneys for Plaintiff s 424 Main Street, Suite 1500 Buffalo, New York 14202 All Defense Counsel of Record 11 12 of 13 202106170424 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/17/2021 10:45 AM NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/17/2021 VERIFICATION STATE OF NEW YORK) COUNTY OF MONROE) ss.: RONALD G. HULL, ESQ., being duly sworn, deposes and says: That he is member of the law firm of Heisman Nunes & Hull LLP, the attorneys for Defendant, Rochester Industrial Insulations Inc., herein; that he has read the foregoing Answer to Complaint and knows the contents thereof; that the same is true to his own knowledge except as to the matters therein stated to be alleged upon information and belief and as to those matters, he believes them to be true. That the reason this verification is made by the deponent and not by Defendant is that the Defendant is a corporation not located in the county where your deponent’s offices are located. That the sources of deponent’s knowledge and the grounds for his belief are from the correspondence with said Defendant and correspondence and conversations with the representatives of said defendant. s/Ronald G. Hull _________________ Ronald G. Hull Sworn to before me this 17th day of June, 2021. s/Janice I. Hance______ Notary Public JANICE I. HANCE Notary Public, State of New York MONROE COUNTY Commission Expires on Nov. 9, 2022 12 13 of 13