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 07/09/2021 05:40 PM INDEX NO. E2021005118
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2773161
Book Page CIVIL
Return To: No. Pages: 12
CAROL GUCK SNIDER
AVANT BUILDING Instrument: MISCELLANEOUS DOCUMENT
200 DELAWARE AVE SUITE 1200
BUFFALO, NY 14202 Control #: 202107091493
Index #: E2021005118
Date: 07/09/2021
Karnisky, Robert A. Time: 5:41:32 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
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,
Index No.: E2021005118
vs.
AIR & LIQUID SYSTEMS CORPORATION
as successor by merger to
BUFFALO PUMPS, INC., et al.,
Defendants.
ANSWER OF FLOWSERVE CORPORATION f/k/a
THE DURIRON COMPANY, INC. TO THE VERIFIED COMPLAINT
Defendant, Flowserve Corporation f/k/a The Duriron Company, Inc., improperly
denominated as Flowserve Corporation, Individually, and as successor by merger to Durco
International, previously known as the Duriron Company, (hereinafter “Duriron”), by its attorneys,
Barclay Damon LLP, as and for its verified answer to the complaint of plaintiffs, respectfully
alleges upon information and belief, as follows:
1. Denies knowledge or information sufficient to form a belief as to the truth of each
and every allegation contained in Paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 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,
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65, 75, 76, 77, 78, 79, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100,
101, 102, 103, 104, 105 and 107 of the plaintiffs’ complaint.
2. Denies each and every allegation, and all subparts thereto, contained in Paragraphs
2, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67, 69, 70, 71, 72, 73 and
108 of the plaintiffs’ complaint as it relates to defendant Duriron, and denies knowledge or
information sufficient to form a belief as to the truth of the allegations as to the co-defendants.
3. Denies each and every allegation, and all subparts thereto, contained in Paragraph
53 of the complaint.
4. In answering Paragraph 12 plaintiffs’ complaint, defendant Duriron admits that it
was a domestic corporation duly organized under and by virtue of the laws of the State of New
York and denies the rest and remainder of said paragraph.
5. Repeats, reiterates and realleges each and every admission or denial of the
allegations contained in Paragraphs 52, 68, 74, 80 and 106 in plaintiffs’ complaint with the same
force and effect as though fully set forth therein.
6. Denies each and every other remaining allegations of the plaintiffs’ complaint not
hereinbefore specifically admitted or otherwise denied.
First Affirmative Defense
7. Plaintiffs’ complaint fails to state a claim against defendant Duriron for which relief
may be granted.
Second Affirmative Defense
8. Any injury that plaintiffs may have suffered was caused by their sole negligence
and/or negligence properly imputed to said plaintiffs.
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Third Affirmative Defense
9. The conduct of the plaintiffs and the conduct imputed to plaintiffs was willful,
wanton and/or reckless.
Fourth Affirmative Defense
10. Plaintiffs assumed the risk of conduct which caused any alleged damages. Insofar
as the complaint of each cause of action therein, considered separately, allege that a cause of action
occurred, the recovered damages for personal injuries and the amount of damages recoverable
thereon must be diminished by reason of the culpable conduct attributed to plaintiffs.
Fifth Affirmative Defense
11. Plaintiffs assumed the risk of his conduct improperly imputed to the defendant,
Duriron.
Sixth Affirmative Defense
12. Negligence, if any, was caused by the acts or omissions of third parties over whom
this defendant exercised no control.
Seventh Affirmative Defense
13. Defendant, Duriron, at all relevant times comported with the applicable state of the
art in the sale and/or distribution of products during the time period relevant to the plaintiffs’
complaint.
Eighth Affirmative Defense
14. Defendant, Duriron, reserves the right to amend its answer and adopt additional
defenses which have been or will be served by other defendants in this action. In addition, Duriron,
will rely upon further defenses which become available or appear during discovery proceedings in
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this action and hereby specifically reserves the right to amend its answer for the purposes of
asserting any such additional defenses.
Ninth Affirmative Defense
15. Plaintiffs’ actions are barred by the doctrines of estoppel, waiver and laches.
Tenth Affirmative Defense
16. This Court lacks jurisdiction over the subject matter of this action.
Eleventh Affirmative Defense
17. This Court lacks jurisdiction over this defendant.
Twelfth Affirmative Defense
18. The venue of this action is improper and this defendant reserves the right to move
for transfer.
Thirteenth Affirmative Defense
19. Flowserve Corporation f/k/a The Duriron Company, Inc. is erroneously named in
the complaint as Flowserve US, Inc., solely as Successor to Rockwell Manufacturing Company,
Edward Valves, Inc., Nordstrom Valves, Inc. and Edward Vogt Valve Company.
Fourteenth Affirmative Defense
20. The incident and the injuries and damages complained of were caused by the
unauthorized, unintended or improper use of the products complained of and as a result of a failure
to exercise reasonable and ordinary care, caution or prudence, plaintiffs have been contributory
negligent in proximity causing any alleged injury.
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Fifteenth Affirmative Defense
21. Applicable laws, rules, statutes or regulations including the relevant statute of
limitations controlling or requiring the institution of suit within a certain period of time was not
complied with by the plaintiffs, and accordingly, the plaintiff’s claims are barred as a matter of
law.
Sixteenth Affirmative Defense
22. Although the defendant denies the allegations of the plaintiffs as to injuries and
damages alleged, these injuries and damages, if any, were caused by the intervening acts and/or
superseding negligence of persons, parties or corporate entities over whom this defendant had no
control.
Seventeenth Affirmative Defense
23. Inasmuch as the plaintiffs are unable to identify the manufacturer of product(s)
which allegedly caused their injuries, plaintiffs’ claim for relief cannot be granted since the
granting of such relief in the absence of product identification would contravene defendants
constitutional right to procedural due process of law and equal protection as preserved by the
United States Constitution and the Constitution of the State of New York as well as contravene
this defendants constitution right to protect against the taking of private property for public use
without just compensation as preserved by the United States constitution and Constitution of the
State of New York.
Eighteenth Affirmative Defense
24. This defendant has complied with all applicable laws, regulations and standards at
all relevant times during plaintiffs’ alleged injuries. This defendant denies that it was guilty of any
malicious or intentional conduct which would permit the award of judgment for punitive damages.
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Nineteenth Affirmative Defense
25. Plaintiffs’ claims for punitive damages are barred by the due process clause of the
Fourteenth Amendment to the United States Constitution.
Twentieth Affirmative Defense
26. Plaintiffs’ claims for punitive damages are barred by the Eighth Amendment of the
United States Constitution applied to the states by the Fourteenth Amendment, prohibiting the
imposition of excessive fines.
Twenty-First Affirmative Defense
27. Plaintiffs’ claims for punitive damages are barred by the double jeopardy clause of
the Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth
Amendment.
Twenty-Second Affirmative Defense
28. The Order of the Bankruptcy Court which prevents this defendant from joining
indispensable parties who had declared bankruptcy, has the effect of requiring this defendant to
defend this action without those other companies as co-defendants and prevents the Court from
being able to hear and adjudge all relevant evidence in regard to plaintiffs’ claims and therefore
denies this defendant of the constitutional right to due process under the Fourteenth Amendment.
Twenty-Third Affirmative Defense
29. Any injuries and/or damages allegedly sustained by plaintiffs was naturally and
proximately caused by the sole negligence of plaintiffs.
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Twenty-Fourth Affirmative Defense
30. Plaintiffs deriving their cause of action from the injuries and damages allegedly
sustained by plaintiffs at the time and place referred to in the complaint, is subject to the defenses
hereinbefore set above and by this reference incorporated.
Twenty-Fifth Affirmative Defense
31. Plaintiffs, having a derivative cause of action, are barred from recovery by reason
of the contributory negligence of plaintiffs.
Twenty-Sixth Affirmative Defense
32. To the extent that any injury relating to the named plaintiffs occurred in the contest
of an employer-employee relationship, claims for said injuries are barred by the Workers’
Compensation Act.
Twenty-Seventh Affirmative Defense
33. The purchaser of the defendant’s product and/or services and all third-party
beneficiaries of any warranties, express or implied, relating to the product or services failed to
provide notice of the alleged breaches of warrant to this defendant pursuant to the applicable
provision of the Uniform Commercial Code.
Twenty-Eighth Affirmative Defense
34. To the extent that plaintiffs sustained injuries from the use of a product alleged to
contain asbestos, which is expressly denied, plaintiffs, other defendants or other parties not under
control of Duriron, misused, abused, misapplied and otherwise mishandled the product alleged to
be asbestos material. Therefore, the amount of damages which may be recoverable must be
diminished by the proportion which said misuse, abuse, misapplication and mishandling bears to
the conduct which caused the alleged damage or injury.
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Twenty-Ninth Affirmative Defense
35. To the extent that the plaintiffs were exposed to any product containing asbestos as
a result of conduct by Duriron which is expressly denied, said exposure was de minimis and not a
substantial contributing factor to any asbestos-related disease which the plaintiff may have
developed, and not actionable at law or equity.
Thirtieth Affirmative Defense
36. Plaintiffs’ claims are barred because of plaintiffs’ failure to join necessary and
indispensable parties.
Thirty-First Affirmative Defense
37. Plaintiffs contributed to the illness, either in whole or in part, by exposure to or the
use of tobacco products and/or other substances, products, mediations or drugs.
Thirty-Second Affirmative Defense
38. Upon information and belief, some or all of the causes of action may not be
maintained because of collateral estoppel.
Thirty-Third Affirmative Defense
39. Upon information and belief, some or all of the causes of action may not be
maintained because of discharge in bankruptcy.
Thirty-Fourth Affirmative Defense
40. Upon information and belief, some or all of the causes of action may not be
maintained because of res judicata.
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Thirty-Fifth Affirmative Defense
41. To the extent plaintiffs herein bring suit in a representative capacity, such plaintiff
has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York
Estates Powers and Trusts Law §5-41.
Thirty-Sixth Affirmative Defense
42. If plaintiffs are successful on their claims for damages and liability by reason of the
alleged acts complained of, such an amount must be decreased by the amount plaintiffs received
or will continue to receive from any collateral source(s).
Thirty-Seventh Affirmative Defense
43. To the extent that plaintiffs’ alleged exposure to Duriron products occurred outside
of the State of New York and insofar as Duriron is neither incorporated, nor maintains its principal
place of business in New York, Duriron is not subject to the jurisdiction of New York State Courts.
Thirty-Eighth Affirmative Defense
44. That in the event there has been a settlement between plaintiffs and any joint or co-
tortfeasor, or person, company or entity liable or claimed to be liable, including bankrupt persons,
companies and entities, then defendant, Duriron, hereby pleads and seeks the full benefit of §15-
108 of the General Obligations Law that plaintiffs’ claim against defendant, Duriron, be reduced
to the fullest extent permitted by §15-108 of the General Obligations Law.
CROSS-CLAIM AGAINST CO-DEFENDANTS
45. Defendant, Duriron, hereby makes a claim for contribution against each and every
defendant in this action.
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CROSS-CLAIM FOR INDEMNIFICATION
46. While denying liability to plaintiffs, as well as the damages and injuries alleged, if
this defendant is found liable to the plaintiffs for damages by reason of the alleged acts complained
of, this defendant’s alleged negligence was merely constructive, technical and passive or vicarious
and plaintiffs’ damages and injuries arose with direct and primary negligence, strict liability,
breach of contract and implied warranties of the said co-defendants listed in this action.
ANSWER TO ALL CROSS CLAIMS
47. This defendant answers all cross claims of co-defendants, saying:
1. All cross claims for contribution alleged are denied; and
2. All cross claims for indemnification are denied.
WHEREFORE, defendant, Duriron, requests judgment in its favor dismissing the verified
complaint and judgment in favor against all co-defendants for all or part of any sum awarded in
favor of the plaintiff and against Duriron and for such other and further relief which as to this
Court may seem just and proper.
DATED: Buffalo, New York
July 9, 2021 Flowserve Corporation f/k/a The Duriron
Company, Inc., Defendant
By
Carol G. Snider, Esq.
BARCLAY DAMON LLP
The Avant Building – Suite 1200
200 Delaware Avenue
Buffalo, New York 14202-2150
(716) 856-5500
TO: Sean M. Esford, Esq.
LIPSITZ, PONTERIO & COMERFORD, LLC
Attorneys for Plaintiff
424 Main Street, Suite 1500
Buffalo, New York 14202
(716) 849-0701
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VERIFICATION
STATE OF NEW YORK )
)ss.:
COUNTY OF ERIE
CAROL G. SNIDER,ESQ., being duly sworn herein says:
1. That she is one of the attorneys for the defendant, Flowserve Corporation f/k/a The
Duriron Company, Inc., in this action; that she has read the verified answer to the verified
complaint and knows the contents thereof; that the same is true to her own knowledge except as to
the matters therein stated to be alleged upon information and belief and as to those matters, she
believes them to be true.
2. That the reason this verification is made by the deponent and not by defendant,
Flowserve Corporation f/k/a The Duriron Company,Inc., is that the answering defendant is outside
the County of Erie where the deponent maintains her office.
3. That the sources of deponent's knowledge and the grounds for her belief are from
the correspondence with said defendant, Flowserve Corporation f/k/a The Duriron Company,Inc.,
and correspondence and conversations with the representatives ofsaid defendant, and from reports
of investigation of the said defendant's representatives, certain of which the correspondence and
reports are now in deponent's possession.
Carol G. Snider, Esq.
Subscribed and sworn to before
me this day of July 2021.
eietadAo- McafweLe
Notary Public
CL.'n:Jicd in Aii.)E.,nv
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FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM INDEX NO. E2021005118 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2773161 Book Page CIVIL Return To: No. Pages: 12 CAROL GUCK SNIDER AVANT BUILDING Instrument: MISCELLANEOUS DOCUMENT 200 DELAWARE AVE SUITE 1200 BUFFALO, NY 14202 Control #: 202107091493 Index #: E2021005118 Date: 07/09/2021 Karnisky, Robert A. Time: 5:41:32 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 12 202107091493 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 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, Index No.: E2021005118 vs. AIR & LIQUID SYSTEMS CORPORATION as successor by merger to BUFFALO PUMPS, INC., et al., Defendants. ANSWER OF FLOWSERVE CORPORATION f/k/a THE DURIRON COMPANY, INC. TO THE VERIFIED COMPLAINT Defendant, Flowserve Corporation f/k/a The Duriron Company, Inc., improperly denominated as Flowserve Corporation, Individually, and as successor by merger to Durco International, previously known as the Duriron Company, (hereinafter “Duriron”), by its attorneys, Barclay Damon LLP, as and for its verified answer to the complaint of plaintiffs, respectfully alleges upon information and belief, as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in Paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 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, 22951690.1 2 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 65, 75, 76, 77, 78, 79, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105 and 107 of the plaintiffs’ complaint. 2. Denies each and every allegation, and all subparts thereto, contained in Paragraphs 2, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67, 69, 70, 71, 72, 73 and 108 of the plaintiffs’ complaint as it relates to defendant Duriron, and denies knowledge or information sufficient to form a belief as to the truth of the allegations as to the co-defendants. 3. Denies each and every allegation, and all subparts thereto, contained in Paragraph 53 of the complaint. 4. In answering Paragraph 12 plaintiffs’ complaint, defendant Duriron admits that it was a domestic corporation duly organized under and by virtue of the laws of the State of New York and denies the rest and remainder of said paragraph. 5. Repeats, reiterates and realleges each and every admission or denial of the allegations contained in Paragraphs 52, 68, 74, 80 and 106 in plaintiffs’ complaint with the same force and effect as though fully set forth therein. 6. Denies each and every other remaining allegations of the plaintiffs’ complaint not hereinbefore specifically admitted or otherwise denied. First Affirmative Defense 7. Plaintiffs’ complaint fails to state a claim against defendant Duriron for which relief may be granted. Second Affirmative Defense 8. Any injury that plaintiffs may have suffered was caused by their sole negligence and/or negligence properly imputed to said plaintiffs. -2- 22951690.1 3 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 Third Affirmative Defense 9. The conduct of the plaintiffs and the conduct imputed to plaintiffs was willful, wanton and/or reckless. Fourth Affirmative Defense 10. Plaintiffs assumed the risk of conduct which caused any alleged damages. Insofar as the complaint of each cause of action therein, considered separately, allege that a cause of action occurred, the recovered damages for personal injuries and the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributed to plaintiffs. Fifth Affirmative Defense 11. Plaintiffs assumed the risk of his conduct improperly imputed to the defendant, Duriron. Sixth Affirmative Defense 12. Negligence, if any, was caused by the acts or omissions of third parties over whom this defendant exercised no control. Seventh Affirmative Defense 13. Defendant, Duriron, at all relevant times comported with the applicable state of the art in the sale and/or distribution of products during the time period relevant to the plaintiffs’ complaint. Eighth Affirmative Defense 14. Defendant, Duriron, reserves the right to amend its answer and adopt additional defenses which have been or will be served by other defendants in this action. In addition, Duriron, will rely upon further defenses which become available or appear during discovery proceedings in -3- 22951690.1 4 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 this action and hereby specifically reserves the right to amend its answer for the purposes of asserting any such additional defenses. Ninth Affirmative Defense 15. Plaintiffs’ actions are barred by the doctrines of estoppel, waiver and laches. Tenth Affirmative Defense 16. This Court lacks jurisdiction over the subject matter of this action. Eleventh Affirmative Defense 17. This Court lacks jurisdiction over this defendant. Twelfth Affirmative Defense 18. The venue of this action is improper and this defendant reserves the right to move for transfer. Thirteenth Affirmative Defense 19. Flowserve Corporation f/k/a The Duriron Company, Inc. is erroneously named in the complaint as Flowserve US, Inc., solely as Successor to Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. and Edward Vogt Valve Company. Fourteenth Affirmative Defense 20. The incident and the injuries and damages complained of were caused by the unauthorized, unintended or improper use of the products complained of and as a result of a failure to exercise reasonable and ordinary care, caution or prudence, plaintiffs have been contributory negligent in proximity causing any alleged injury. -4- 22951690.1 5 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 Fifteenth Affirmative Defense 21. Applicable laws, rules, statutes or regulations including the relevant statute of limitations controlling or requiring the institution of suit within a certain period of time was not complied with by the plaintiffs, and accordingly, the plaintiff’s claims are barred as a matter of law. Sixteenth Affirmative Defense 22. Although the defendant denies the allegations of the plaintiffs as to injuries and damages alleged, these injuries and damages, if any, were caused by the intervening acts and/or superseding negligence of persons, parties or corporate entities over whom this defendant had no control. Seventeenth Affirmative Defense 23. Inasmuch as the plaintiffs are unable to identify the manufacturer of product(s) which allegedly caused their injuries, plaintiffs’ claim for relief cannot be granted since the granting of such relief in the absence of product identification would contravene defendants constitutional right to procedural due process of law and equal protection as preserved by the United States Constitution and the Constitution of the State of New York as well as contravene this defendants constitution right to protect against the taking of private property for public use without just compensation as preserved by the United States constitution and Constitution of the State of New York. Eighteenth Affirmative Defense 24. This defendant has complied with all applicable laws, regulations and standards at all relevant times during plaintiffs’ alleged injuries. This defendant denies that it was guilty of any malicious or intentional conduct which would permit the award of judgment for punitive damages. -5- 22951690.1 6 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 Nineteenth Affirmative Defense 25. Plaintiffs’ claims for punitive damages are barred by the due process clause of the Fourteenth Amendment to the United States Constitution. Twentieth Affirmative Defense 26. Plaintiffs’ claims for punitive damages are barred by the Eighth Amendment of the United States Constitution applied to the states by the Fourteenth Amendment, prohibiting the imposition of excessive fines. Twenty-First Affirmative Defense 27. Plaintiffs’ claims for punitive damages are barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. Twenty-Second Affirmative Defense 28. The Order of the Bankruptcy Court which prevents this defendant from joining indispensable parties who had declared bankruptcy, has the effect of requiring this defendant to defend this action without those other companies as co-defendants and prevents the Court from being able to hear and adjudge all relevant evidence in regard to plaintiffs’ claims and therefore denies this defendant of the constitutional right to due process under the Fourteenth Amendment. Twenty-Third Affirmative Defense 29. Any injuries and/or damages allegedly sustained by plaintiffs was naturally and proximately caused by the sole negligence of plaintiffs. -6- 22951690.1 7 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 Twenty-Fourth Affirmative Defense 30. Plaintiffs deriving their cause of action from the injuries and damages allegedly sustained by plaintiffs at the time and place referred to in the complaint, is subject to the defenses hereinbefore set above and by this reference incorporated. Twenty-Fifth Affirmative Defense 31. Plaintiffs, having a derivative cause of action, are barred from recovery by reason of the contributory negligence of plaintiffs. Twenty-Sixth Affirmative Defense 32. To the extent that any injury relating to the named plaintiffs occurred in the contest of an employer-employee relationship, claims for said injuries are barred by the Workers’ Compensation Act. Twenty-Seventh Affirmative Defense 33. The purchaser of the defendant’s product and/or services and all third-party beneficiaries of any warranties, express or implied, relating to the product or services failed to provide notice of the alleged breaches of warrant to this defendant pursuant to the applicable provision of the Uniform Commercial Code. Twenty-Eighth Affirmative Defense 34. To the extent that plaintiffs sustained injuries from the use of a product alleged to contain asbestos, which is expressly denied, plaintiffs, other defendants or other parties not under control of Duriron, misused, abused, misapplied and otherwise mishandled the product alleged to be asbestos material. Therefore, the amount of damages which may be recoverable must be diminished by the proportion which said misuse, abuse, misapplication and mishandling bears to the conduct which caused the alleged damage or injury. -7- 22951690.1 8 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 Twenty-Ninth Affirmative Defense 35. To the extent that the plaintiffs were exposed to any product containing asbestos as a result of conduct by Duriron which is expressly denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which the plaintiff may have developed, and not actionable at law or equity. Thirtieth Affirmative Defense 36. Plaintiffs’ claims are barred because of plaintiffs’ failure to join necessary and indispensable parties. Thirty-First Affirmative Defense 37. Plaintiffs contributed to the illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, mediations or drugs. Thirty-Second Affirmative Defense 38. Upon information and belief, some or all of the causes of action may not be maintained because of collateral estoppel. Thirty-Third Affirmative Defense 39. Upon information and belief, some or all of the causes of action may not be maintained because of discharge in bankruptcy. Thirty-Fourth Affirmative Defense 40. Upon information and belief, some or all of the causes of action may not be maintained because of res judicata. -8- 22951690.1 9 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 Thirty-Fifth Affirmative Defense 41. To the extent plaintiffs herein bring suit in a representative capacity, such plaintiff has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estates Powers and Trusts Law §5-41. Thirty-Sixth Affirmative Defense 42. If plaintiffs are successful on their claims for damages and liability by reason of the alleged acts complained of, such an amount must be decreased by the amount plaintiffs received or will continue to receive from any collateral source(s). Thirty-Seventh Affirmative Defense 43. To the extent that plaintiffs’ alleged exposure to Duriron products occurred outside of the State of New York and insofar as Duriron is neither incorporated, nor maintains its principal place of business in New York, Duriron is not subject to the jurisdiction of New York State Courts. Thirty-Eighth Affirmative Defense 44. That in the event there has been a settlement between plaintiffs and any joint or co- tortfeasor, or person, company or entity liable or claimed to be liable, including bankrupt persons, companies and entities, then defendant, Duriron, hereby pleads and seeks the full benefit of §15- 108 of the General Obligations Law that plaintiffs’ claim against defendant, Duriron, be reduced to the fullest extent permitted by §15-108 of the General Obligations Law. CROSS-CLAIM AGAINST CO-DEFENDANTS 45. Defendant, Duriron, hereby makes a claim for contribution against each and every defendant in this action. -9- 22951690.1 10 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 CROSS-CLAIM FOR INDEMNIFICATION 46. While denying liability to plaintiffs, as well as the damages and injuries alleged, if this defendant is found liable to the plaintiffs for damages by reason of the alleged acts complained of, this defendant’s alleged negligence was merely constructive, technical and passive or vicarious and plaintiffs’ damages and injuries arose with direct and primary negligence, strict liability, breach of contract and implied warranties of the said co-defendants listed in this action. ANSWER TO ALL CROSS CLAIMS 47. This defendant answers all cross claims of co-defendants, saying: 1. All cross claims for contribution alleged are denied; and 2. All cross claims for indemnification are denied. WHEREFORE, defendant, Duriron, requests judgment in its favor dismissing the verified complaint and judgment in favor against all co-defendants for all or part of any sum awarded in favor of the plaintiff and against Duriron and for such other and further relief which as to this Court may seem just and proper. DATED: Buffalo, New York July 9, 2021 Flowserve Corporation f/k/a The Duriron Company, Inc., Defendant By Carol G. Snider, Esq. BARCLAY DAMON LLP The Avant Building – Suite 1200 200 Delaware Avenue Buffalo, New York 14202-2150 (716) 856-5500 TO: Sean M. Esford, Esq. LIPSITZ, PONTERIO & COMERFORD, LLC Attorneys for Plaintiff 424 Main Street, Suite 1500 Buffalo, New York 14202 (716) 849-0701 - 10 - 22951690.1 11 of 12 202107091493 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/09/2021 05:40 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 07/09/2021 VERIFICATION STATE OF NEW YORK ) )ss.: COUNTY OF ERIE CAROL G. SNIDER,ESQ., being duly sworn herein says: 1. That she is one of the attorneys for the defendant, Flowserve Corporation f/k/a The Duriron Company, Inc., in this action; that she has read the verified answer to the verified complaint and knows the contents thereof; that the same is true to her own knowledge except as to the matters therein stated to be alleged upon information and belief and as to those matters, she believes them to be true. 2. That the reason this verification is made by the deponent and not by defendant, Flowserve Corporation f/k/a The Duriron Company,Inc., is that the answering defendant is outside the County of Erie where the deponent maintains her office. 3. That the sources of deponent's knowledge and the grounds for her belief are from the correspondence with said defendant, Flowserve Corporation f/k/a The Duriron Company,Inc., and correspondence and conversations with the representatives ofsaid defendant, and from reports of investigation of the said defendant's representatives, certain of which the correspondence and reports are now in deponent's possession. Carol G. Snider, Esq. Subscribed and sworn to before me this day of July 2021. eietadAo- McafweLe Notary Public CL.'n:Jicd in Aii.)E.,nv pr3 EA,,ires 8j 2295 1690.r' 12 of 12