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 06/29/2021 02:44 PM INDEX NO. E2021005118
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2762881
Book Page CIVIL
Return To: No. Pages: 11
JASON ANTHONY BOTTICELLI
Instrument: ANSWER
Control #: 202106291211
Index #: E2021005118
Date: 06/29/2021
Karnisky, Robert A. Time: 2:45:29 PM
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
______________________________________________ SEVENTH JUDICIAL DISTRICT
ASBESTOS LITIGATION
In Re: Seventh Judicial District
Asbestos Litigation
______________________________________________
This Document Applies to:
ANSWER TO PLAINTIFFS’
SUPREME COURT OF THE STATE OF NEW YORK COMPLAINT WITH AFFIRMATIVE
COUNTY OF MONROE DEFENSES AND CROSS-CLAIM OF
______________________________________________ FRONTIER INSULATION
CONTRACTORS, INC.
ROBERT A. KARNISKY and PAULA A. KARNISKY,
his Spouse Index No. E2021005118
Plaintiffs,
vs.
AIR & LIQUID SYSTEMS CORPORATION, as
successor by merger to BUFFALO PUMPS, INC. et al.,
Defendants.
Defendant, FRONTIER INSULATION CONTRACTORS, INC. ("Frontier"),
by and through its attorneys, GOLDBERG SEGALLA LLP, as and for its Answer to the
Complaint herein alleges:
1. Denies knowledge or information sufficient to form a belief as to the
allegations as they pertain to this answering defendant contained in paragraphs 1, 3, 4, 5, 6, 7, 8,
9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35,
36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 81, 82, 83, 84, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98,
99, 100, 101, 102, 103, 104 and 107 of the Complaint.
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2. Denies the allegations as they pertain to this answering defendant
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, 75, 76, 77, 78, 79, 85, 86, 105 and 108 of the Complaint.
3. In response to paragraphs 52, 68, 74, 80 and 106 of the Complaint, this
answering defendant repeats and realleges each and every allegation contained in this Answer.
4. As to the allegations contained in paragraph 16 of the Complaint, admits
that this answering defendant is a duly organized corporation in the State of New York and doing
business and/or transacting business in the State of New York and denies the paragraph’s
remaining allegations.
5. As to the allegations in paragraph 53 of the Complaint, admits upon
information and belief that under some circumstances, inhalation of certain asbestos fibers may
be dangerous
AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
6. The claims alleged in the Complaint against this answering defendant are
barred by the applicable statutes of limitations.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
7. The Complaint fails to state a cause of action against this answering
defendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
8. Upon information and belief, plaintiffs assumed the risks and hazards of
injury and damage to themselves from the occurrences alleged in the Complaint.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
9. Upon information and belief, the occurrences alleged in the Complaint and
the damages flowing therefrom, resulted solely or in part from the negligent acts or omissions to
act on the part of the plaintiffs.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
10. Plaintiffs did not directly or indirectly purchase any asbestos-containing
products or materials from this answering defendant, and plaintiffs neither received nor relied
upon any representation or warranty allegedly made by this answering defendant.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
11. Upon information and belief, plaintiffs failed to mitigate or otherwise act
to lessen or reduce the injuries or disabilities claimed in the Complaint.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
12. Upon information and belief, plaintiffs have unduly delayed the bringing
of this claim to the prejudice of this answering defendant; therefore, the same is barred by the
Doctrine of Laches.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
13. Upon information and belief, plaintiffs’ claims are barred by the operation
of the Worker's Compensation Law of the State of New York.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
14. Upon information and belief, plaintiffs’ injuries and damages were
proximately caused by or contributed to by the negligence of other parties, including, but not
limited to, the employers and fellow workers of plaintiff, Robert Karnisky, and the labor
organization to which plaintiff belonged.
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
15. The Complaint fails to state a claim against this answering defendant upon
which punitive damages can be granted.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
16. The liability of this answering defendant, if any, constitutes less than fifty
percent (50%) of the culpable conduct causing or contributing to plaintiffs’ injuries, if any.
Therefore, pursuant to Article 16 of the CPLR, the liability of this answering defendant, if any, is
limited to its equitable share of the total liability, if any, to be established in the instant action.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
17. The Complaint fails to state in sufficient detail the circumstances
constituting the alleged misrepresentation, fraud, concealment, deceit and conspiracy involving
this answering defendant.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
18. If it is determined that the Laws of New York, 1986 c.682 (effective July
8, 1986) apply to the causes of action asserted by plaintiffs against this answering defendant in
this lawsuit, the aforementioned statute violates both the United States and New York State
Constitutions as applied to this defendant.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
19. Plaintiffs’ demand for punitive damages is barred by the United States
Constitution and the Constitution of the State of New York.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
20. If it is proven at trial that any product attributable to this answering
defendant was furnished to said plaintiff’s, Robert Karnisky, employers, and said plaintiff was
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exposed to the product, all of which is expressly denied, then any products attributable to this
answering defendant and to which said plaintiff may have been exposed were furnished in strict
conformity to the specifications furnished by the U.S. Government and/or said plaintiff’s
employers.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
21. That to the extent that any of the products for which liability is charged
herein to this answering defendant, which liability is denied, were modified, assembled, altered,
quantified or in any way materially varied, which same may be causally related to the claims of
plaintiffs, the action of plaintiffs is barred herein.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
22. If the Court finds that 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 the plaintiff, Robert Karnisky, his co-workers and/or
employers bears to the conduct which caused the alleged damages or injuries.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
23. That the cause of action pleaded in the Complaint insofar as it asserts an
alleged cause of action for express and/or implied warranties and the alleged breaches thereof, as
against this answering defendant, is legally insufficient by reason of the failure to allege privity
of contract and/or privity of warranties between the plaintiffs and this answering defendant.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
24. That to the extent that the use, application, employment, surrounding
conditions, safety precautions and other circumstances attendant upon the material allegedly used
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by plaintiff, Robert Karnisky, were determined, controlled, selected or limited by his employers
or by others for whose acts, omissions or breach this answering defendant is not liable, the
Complaint is barred, in whole or in part.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
25. Upon information and belief, during the relevant time period, this
answering defendant neither manufactured nor sold asbestos-containing products.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
26. At all material times, the state of medical, industrial and scientific
knowledge was such that there was no generally accepted or recognized knowledge of any
unavoidably unsafe, inherently dangerous or hazardous character or nature of asbestos products.
Accordingly, even if this answering defendant had sold any asbestos-containing product to
plaintiff’s employers, which this answering defendant specifically denies, this answering
defendant had no duty to know of such character or nature or to warn plaintiff or others similarly
situated.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
27. Upon information and belief, this answering defendant conformed to the
scientific knowledge and data available in the industry and fulfilled its obligations, if any, and its
activities and undertakings, if any, were conducted in a reasonable fashion, without recklessness,
malice or wantonness, and the plaintiffs may not recover herein any exemplary damages or
punitive damages against this answering defendant.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
28. Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor,
Forty-Eight Insulations and/or Standard Insulations, and all other entities in bankruptcy relating
thereto, would be in violation of this answering defendant’s constitutional rights.
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AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE,
FRONTIER ALLEGES:
29. Any recovery by the plaintiffs herein must be reduced by collateral source
payments pursuant to CPLR Section 4545.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE,
AND BY WAY OF CROSS-CLAIM, FRONTIER ALLEGES:
30. This answering defendant denies specifically that, during the periods of
exposure alleged in the Complaint by the plaintiffs, it mined, processed, manufactured,
produced, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold
and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the
asbestos products to which plaintiffs were caused to come into contact and which plaintiff,
Robert Karnisky, was caused to breathe, inhale and digest and which thereby caused the
plaintiff’s injuries and resulting damages alleged in the Complaint herein.
31. In the event the Court finds after trial that any misuse, abuse, mistreatment
or misapplication of the said products by the other defendants caused or contributed to the
alleged damages or injury to the plaintiffs and that plaintiffs are entitled to recover a judgment
against this answering defendant, then this answering defendant is entitled to contribution from
any or all such other defendants.
32. If plaintiffs were caused to sustain damages through any carelessness,
recklessness, negligence or culpable conduct, other than that of plaintiffs’ own negligence or
culpable conduct, in the manufacture, distribution or use of any product, breaches of warranty,
either expressed or implied, or in strict liability in tort, said damages will have been caused and
brought about by reason of the carelessness, recklessness, negligence and/or culpable conduct in
the manufacture, distribution or use of the product, breaches of warranty, either expressed or
implied, or in the strict liability in tort of the other defendants.
33. By reason of the foregoing, if the plaintiffs should recover a judgment
against this answering defendant, by operation of law or otherwise, this answering defendant will
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be entitled to judgment and indemnity over and against each of the other defendants, their agents,
servants and/or employees, by reason of their carelessness, recklessness, negligence, culpable
conduct or negligence in the manufacture, distribution or use of the product, breaches of
warranty, either expressed or implied, or in strict liability of tort, for the amount of any such
recovery or a portion thereof, in accordance with principles of law and fault apportionment,
along with costs, disbursements and the reasonable expenses of the investigation and defense of
plaintiffs’ claims and actions, along with reasonable attorneys' fees.
WHEREFORE, this answering defendant demands judgment as follows:
A. Dismissing plaintiffs’ Complaint, together with the costs and
disbursements of this action;
B. Determining the ultimate rights and responsibilities among the defendants;
C. Granting judgment in favor of this answering defendant over and against
the other defendants as set forth above for the amount of the recovery against this answering
defendant or such part thereof as may be determined, together with costs and disbursements of
this action; and
D. Such other and further relief as to the Court may seem just and proper.
Dated: Buffalo, New York
June 29, 2021
GOLDBERG SEGALLA LLP
By: _______________________
Jason A. Botticelli, Esq.
Joseph J. Welter, Esq.
Attorneys for Defendant
Frontier Insulation Contractors, Inc.
665 Main Street
Buffalo, New York 14203
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TO: Sean Esford Esq.
Lipsitz, Ponterio & Comerford
Attorneys for the Plaintiffs
424 Main Street, Suite 1500
Buffalo, NY 14202
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V E R IFI C A TIO N
STATE OF NEW YORK
) ss:
COUNTY OF ERIE
JON WOPPERER, being duly sworn, deposes and says: that he is an officer of Frontier
Insulation Contractors, Inc.; that he has read the foregoing Answer and knows the contents
thereof; that the same is true to his own knowledge, except as to matters therein stated to be upon
information and belief, and as to those matters, he believes it to be true.
Sworn to before me this
£ 2 .--day of June 2021
Notary Public
DEANNA M.GOOD
NOTARY PUBLIC,STATE OF NEW YORK
Reg. No.01606076737
QUALIFIED IN ERIE COUNTY
My Camino Expires July 1,10,E
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FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM INDEX NO. E2021005118 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2762881 Book Page CIVIL Return To: No. Pages: 11 JASON ANTHONY BOTTICELLI Instrument: ANSWER Control #: 202106291211 Index #: E2021005118 Date: 06/29/2021 Karnisky, Robert A. Time: 2:45:29 PM 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 11 202106291211 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 SUPREME COURT OF THE STATE OF NEW YORK SEVENTH JUDICIAL DISTRICT ______________________________________________ SEVENTH JUDICIAL DISTRICT ASBESTOS LITIGATION In Re: Seventh Judicial District Asbestos Litigation ______________________________________________ This Document Applies to: ANSWER TO PLAINTIFFS’ SUPREME COURT OF THE STATE OF NEW YORK COMPLAINT WITH AFFIRMATIVE COUNTY OF MONROE DEFENSES AND CROSS-CLAIM OF ______________________________________________ FRONTIER INSULATION CONTRACTORS, INC. ROBERT A. KARNISKY and PAULA A. KARNISKY, his Spouse Index No. E2021005118 Plaintiffs, vs. AIR & LIQUID SYSTEMS CORPORATION, as successor by merger to BUFFALO PUMPS, INC. et al., Defendants. Defendant, FRONTIER INSULATION CONTRACTORS, INC. ("Frontier"), by and through its attorneys, GOLDBERG SEGALLA LLP, as and for its Answer to the Complaint herein alleges: 1. Denies knowledge or information sufficient to form a belief as to the allegations as they pertain to this answering defendant contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 81, 82, 83, 84, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104 and 107 of the Complaint. 30332911.v1 2 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 2. Denies the allegations as they pertain to this answering defendant 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, 75, 76, 77, 78, 79, 85, 86, 105 and 108 of the Complaint. 3. In response to paragraphs 52, 68, 74, 80 and 106 of the Complaint, this answering defendant repeats and realleges each and every allegation contained in this Answer. 4. As to the allegations contained in paragraph 16 of the Complaint, admits that this answering defendant is a duly organized corporation in the State of New York and doing business and/or transacting business in the State of New York and denies the paragraph’s remaining allegations. 5. As to the allegations in paragraph 53 of the Complaint, admits upon information and belief that under some circumstances, inhalation of certain asbestos fibers may be dangerous AS AND FOR A FIRST AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 6. The claims alleged in the Complaint against this answering defendant are barred by the applicable statutes of limitations. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 7. The Complaint fails to state a cause of action against this answering defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 8. Upon information and belief, plaintiffs assumed the risks and hazards of injury and damage to themselves from the occurrences alleged in the Complaint. - 2 - 30332911.v1 3 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 9. Upon information and belief, the occurrences alleged in the Complaint and the damages flowing therefrom, resulted solely or in part from the negligent acts or omissions to act on the part of the plaintiffs. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 10. Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from this answering defendant, and plaintiffs neither received nor relied upon any representation or warranty allegedly made by this answering defendant. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 11. Upon information and belief, plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries or disabilities claimed in the Complaint. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 12. Upon information and belief, plaintiffs have unduly delayed the bringing of this claim to the prejudice of this answering defendant; therefore, the same is barred by the Doctrine of Laches. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 13. Upon information and belief, plaintiffs’ claims are barred by the operation of the Worker's Compensation Law of the State of New York. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 14. Upon information and belief, plaintiffs’ injuries and damages were proximately caused by or contributed to by the negligence of other parties, including, but not limited to, the employers and fellow workers of plaintiff, Robert Karnisky, and the labor organization to which plaintiff belonged. - 3 - 30332911.v1 4 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 AS AND FOR A TENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 15. The Complaint fails to state a claim against this answering defendant upon which punitive damages can be granted. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 16. The liability of this answering defendant, if any, constitutes less than fifty percent (50%) of the culpable conduct causing or contributing to plaintiffs’ injuries, if any. Therefore, pursuant to Article 16 of the CPLR, the liability of this answering defendant, if any, is limited to its equitable share of the total liability, if any, to be established in the instant action. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 17. The Complaint fails to state in sufficient detail the circumstances constituting the alleged misrepresentation, fraud, concealment, deceit and conspiracy involving this answering defendant. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 18. If it is determined that the Laws of New York, 1986 c.682 (effective July 8, 1986) apply to the causes of action asserted by plaintiffs against this answering defendant in this lawsuit, the aforementioned statute violates both the United States and New York State Constitutions as applied to this defendant. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 19. Plaintiffs’ demand for punitive damages is barred by the United States Constitution and the Constitution of the State of New York. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 20. If it is proven at trial that any product attributable to this answering defendant was furnished to said plaintiff’s, Robert Karnisky, employers, and said plaintiff was - 4 - 30332911.v1 5 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 exposed to the product, all of which is expressly denied, then any products attributable to this answering defendant and to which said plaintiff may have been exposed were furnished in strict conformity to the specifications furnished by the U.S. Government and/or said plaintiff’s employers. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 21. That to the extent that any of the products for which liability is charged herein to this answering defendant, which liability is denied, were modified, assembled, altered, quantified or in any way materially varied, which same may be causally related to the claims of plaintiffs, the action of plaintiffs is barred herein. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 22. If the Court finds that 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 the plaintiff, Robert Karnisky, his co-workers and/or employers bears to the conduct which caused the alleged damages or injuries. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 23. That the cause of action pleaded in the Complaint insofar as it asserts an alleged cause of action for express and/or implied warranties and the alleged breaches thereof, as against this answering defendant, is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between the plaintiffs and this answering defendant. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 24. That to the extent that the use, application, employment, surrounding conditions, safety precautions and other circumstances attendant upon the material allegedly used - 5 - 30332911.v1 6 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 by plaintiff, Robert Karnisky, were determined, controlled, selected or limited by his employers or by others for whose acts, omissions or breach this answering defendant is not liable, the Complaint is barred, in whole or in part. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 25. Upon information and belief, during the relevant time period, this answering defendant neither manufactured nor sold asbestos-containing products. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 26. At all material times, the state of medical, industrial and scientific knowledge was such that there was no generally accepted or recognized knowledge of any unavoidably unsafe, inherently dangerous or hazardous character or nature of asbestos products. Accordingly, even if this answering defendant had sold any asbestos-containing product to plaintiff’s employers, which this answering defendant specifically denies, this answering defendant had no duty to know of such character or nature or to warn plaintiff or others similarly situated. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 27. Upon information and belief, this answering defendant conformed to the scientific knowledge and data available in the industry and fulfilled its obligations, if any, and its activities and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and the plaintiffs may not recover herein any exemplary damages or punitive damages against this answering defendant. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 28. Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight Insulations and/or Standard Insulations, and all other entities in bankruptcy relating thereto, would be in violation of this answering defendant’s constitutional rights. - 6 - 30332911.v1 7 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE, FRONTIER ALLEGES: 29. Any recovery by the plaintiffs herein must be reduced by collateral source payments pursuant to CPLR Section 4545. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE, AND BY WAY OF CROSS-CLAIM, FRONTIER ALLEGES: 30. This answering defendant denies specifically that, during the periods of exposure alleged in the Complaint by the plaintiffs, it mined, processed, manufactured, produced, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos products to which plaintiffs were caused to come into contact and which plaintiff, Robert Karnisky, was caused to breathe, inhale and digest and which thereby caused the plaintiff’s injuries and resulting damages alleged in the Complaint herein. 31. In the event the Court finds after trial that any misuse, abuse, mistreatment or misapplication of the said products by the other defendants caused or contributed to the alleged damages or injury to the plaintiffs and that plaintiffs are entitled to recover a judgment against this answering defendant, then this answering defendant is entitled to contribution from any or all such other defendants. 32. If plaintiffs were caused to sustain damages through any carelessness, recklessness, negligence or culpable conduct, other than that of plaintiffs’ own negligence or culpable conduct, in the manufacture, distribution or use of any product, breaches of warranty, either expressed or implied, or in strict liability in tort, said damages will have been caused and brought about by reason of the carelessness, recklessness, negligence and/or culpable conduct in the manufacture, distribution or use of the product, breaches of warranty, either expressed or implied, or in the strict liability in tort of the other defendants. 33. By reason of the foregoing, if the plaintiffs should recover a judgment against this answering defendant, by operation of law or otherwise, this answering defendant will - 7 - 30332911.v1 8 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 be entitled to judgment and indemnity over and against each of the other defendants, their agents, servants and/or employees, by reason of their carelessness, recklessness, negligence, culpable conduct or negligence in the manufacture, distribution or use of the product, breaches of warranty, either expressed or implied, or in strict liability of tort, for the amount of any such recovery or a portion thereof, in accordance with principles of law and fault apportionment, along with costs, disbursements and the reasonable expenses of the investigation and defense of plaintiffs’ claims and actions, along with reasonable attorneys' fees. WHEREFORE, this answering defendant demands judgment as follows: A. Dismissing plaintiffs’ Complaint, together with the costs and disbursements of this action; B. Determining the ultimate rights and responsibilities among the defendants; C. Granting judgment in favor of this answering defendant over and against the other defendants as set forth above for the amount of the recovery against this answering defendant or such part thereof as may be determined, together with costs and disbursements of this action; and D. Such other and further relief as to the Court may seem just and proper. Dated: Buffalo, New York June 29, 2021 GOLDBERG SEGALLA LLP By: _______________________ Jason A. Botticelli, Esq. Joseph J. Welter, Esq. Attorneys for Defendant Frontier Insulation Contractors, Inc. 665 Main Street Buffalo, New York 14203 - 8 - 30332911.v1 9 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 TO: Sean Esford Esq. Lipsitz, Ponterio & Comerford Attorneys for the Plaintiffs 424 Main Street, Suite 1500 Buffalo, NY 14202 - 9 - 30332911.v1 10 of 11 202106291211 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 06/29/2021 02:44 PM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/29/2021 V E R IFI C A TIO N STATE OF NEW YORK ) ss: COUNTY OF ERIE JON WOPPERER, being duly sworn, deposes and says: that he is an officer of Frontier Insulation Contractors, Inc.; that he has read the foregoing Answer and knows the contents thereof; that the same is true to his own knowledge, except as to matters therein stated to be upon information and belief, and as to those matters, he believes it to be true. Sworn to before me this £ 2 .--day of June 2021 Notary Public DEANNA M.GOOD NOTARY PUBLIC,STATE OF NEW YORK Reg. No.01606076737 QUALIFIED IN ERIE COUNTY My Camino Expires July 1,10,E - 10 - Error! Unknown document property name. 11 of 11