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 07/20/2021 01:27 PM INDEX NO. E2021005118
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2783078
Book Page CIVIL
Return To: No. Pages: 12
SUZANNE M. HALBARDIER
101 Greenwich Street, 14th Floor Instrument: ANSWER
New York, NY 10006
Control #: 202107200632
Index #: E2021005118
Date: 07/20/2021
Karnisky, Robert A. Time: 1:29:18 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
COUNTY OF MONROE
---------------------------------------------------------------------
ROBERT A. KARNISKY and PAULA KARNISKY,
Index No.: E2021005118
Plaintiff(s),
-against- VERIFIED ANSWER
AIR & LIQUID SYSTEMS CORP. as successor by
merger to BUFFALO PUMPS, INC., et al.
Defendants.
---------------------------------------------------------------------
COUNSELORS:
Defendant, SPX COOLING TECHNOLOGIES, INC., Individually and as Successor to
Marley Cooling Technologies, Inc. and Marley Cooling Towers s/h/a SPX COOLING
TECHNOLOGIES, INC. f/k/a Marley Cooling Technologies, Inc. f/k/a The Marley Cooling Tower
Company (hereinafter “SPX COOLING TECHNOLOGIES, INC.), through its attorneys, BARRY
McTIERNAN & MOORE LLC, answering the Verified Complaint of the plaintiff, states as follows:
1. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs numbered “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”, “33”, “34”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44” and “45” of the
Verified Complaint.
2. Denies upon information and belief, each and every allegation contained in paragraph
numbered “2” of the Verified Complaint with all questions of law referred to the Court.
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3. Denies upon information and belief, each and every allegation contained in
paragraph numbered “35” of the Verified Complaint except admits defendant, SPX COOLING
TECHNOLOGIES, INC., is a foreign corporation.
4. Denies each and every allegation contained in paragraphs numbered “46”, “47”, “48”,
“49”, “50” and “51” of the Verified Complaint.
ANSWERING FIRST CAUSE OF ACTION
5. Answering paragraph numbered “52” of the Verified Complaint, defendant, SPX
COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response
contained in paragraphs numbered “1” through “4” of this Verified Answer.
6. Denies each and every allegation contained in paragraphs numbered “53”, “54”, “55”,
“56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, and “67” of the Verified
Complaint.
ANSWERING SECOND CAUSE OF ACTION
7. Answering paragraph numbered “68” of the Verified Complaint, defendant, SPX
COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response
contained in paragraphs numbered “1” through “6” of this Verified Answer.
8. Denies each and every allegation contained in paragraphs numbered “69”, “70”, “72”
and “73” of the Verified Complaint.
9. Denies upon information and belief, each and every allegation contained in paragraph
numbered “71” of the Verified Complaint with all questions of law referred to the Court.
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ANSWERING THIRD CAUSE OF ACTION
10. Answering paragraph numbered “74” of the Verified Complaint, defendant, SPX
COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response
contained in paragraphs numbered “1” through “9” of this Verified Answer.
11. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs numbered “75”, “76”, “77”, “78” and “79” of the Verified Complaint.
ANSWERING FOURTH CAUSE OF ACTION
12. Answering paragraph numbered “80” of the Verified Complaint, defendant, SPX
COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response
contained in paragraphs numbered “1” through “11” of this Verified Answer.
13. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs numbered “81”, “82”, “83”, “84”, “85”, “86”, “87”, “88”, “89”, “90”, “91”,
“92”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104” and “105” of the
Verified Complaint.
ANSWERING FIFTH CAUSE OF ACTION
14. Answering paragraph numbered “106” of the Verified Complaint, defendant, SPX
COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response
contained in paragraphs numbered “1” through “13” of this Verified Answer.
15. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraph numbered “107” of the Verified Complaint.
16. Denies each and every allegation contained in paragraph numbered “108” of the
Verified Complaint.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE
17. This Court lacks jurisdiction over the answering defendant as a result of improper,
and lack of, service of process.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
18. All claims are time-barred by the applicable Statutes of Limitations.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
19. All claims brought under the New York Statute of Limitations approved July 30,
1986 are time barred in that the statute is unconstitutional.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
20. The causes of action pleaded in the complaint have not been maintained in a timely
fashion and plaintiffs have neglected the same and should be barred by the doctrine of laches.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
21. The forum chosen by the plaintiffs lacks personal jurisdiction over this answering
defendant.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
22. The complaint and each and every allegation considered separately fails to state any
cause of action against the answering defendant upon which relief can be granted.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
23. Insofar as the complaint, and each cause of action considered separately, alleges a
cause of action accruing on or after September 1, 1975, to recover damages for personal injuries, the
amount of damages recoverable thereon must be diminished by reason of the culpable conduct
attributable to the plaintiff including contributory negligence and assumption of risk, in the
proportion which the culpable conduction attributable to the plaintiffs bears to the culpable conduct
which cause the damages.
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
24. Insofar as the complaint, and each cause of action considered separately, alleges a
cause of action accruing before September 1, 1975, each such cause of action is barred by reason of
the culpable conduct attributable to the plaintiffs including contributory negligence and assumption
of the risk.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
25. If the plaintiffs should prove that they sustained injuries and damages as alleged, such
injuries and damages resulted from acts or omissions on the part of the third-parties over whom this
answering defendant had no control or right of control.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
26. While this answering defendant denies the plaintiffs' allegations of negligence,
statutory liability and/or strict liability, any injury and damages, to the extent that plaintiffs may be
able to prove them, were the results of intervening and/or interceding acts of superseding negligence
on the part of parties over whom this answering defendant neither controlled nor had the right to
control.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
27. At all times during the conduct of its corporate operations, the agents, servants and/or
employees of this answering defendant used methods in manufacturing its products in conformity
with the available knowledge, state of the art and research of the scientific and industrial
communities.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
28. Plaintiffs, their co-workers and employers misused, abused, mistreated and
misapplied the product designated as asbestos material as alleged in the complaint.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
29. 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 the plaintiffs, then this
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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 plaintiffs, their co-workers and/or employers bear to the conduct which caused the
alleged damages or injuries.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
30. Any oral warranties upon which plaintiffs relied are inadmissible and unavailable
because of the provisions of the applicable Statue of Frauds.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
31. As to all causes of action pleaded in the complaint which are based upon expressed or
implied warranties and/or representations, the alleged breaches thereof as against this answering
defendant are legally insufficient by reason of their failure to allege privity of contract between the
plaintiffs and this answering defendant.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
32. Plaintiffs did not directly or indirectly purchase any asbestos containing products or
materials from this answering defendant and plaintiffs neither received nor relied on any
representation or warranty allegedly made by this answering defendant.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
33. In the event that any breach of warranty is proven, plaintiffs failed to give proper and
prompt notice of any such breach of warranty to this answering defendant.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
34. To the extent that the causes of action pleaded by plaintiffs fail to accord with the
Uniform Commercial Code, including, but not limited to Section 2-725 thereof, the plaintiffs'
complaint is time-barred.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
35. Upon information and belief, plaintiffs filed to mitigate or otherwise act to lessen or
reduce the injuries and disabilities alleged in the complaint.
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AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
36. To the extent that plaintiff seeks punitive damages against answering defendant, these
damages are improper, unwarranted, not authorized by law and are unconstitutional in the context of
this litigation. Subjecting the defendant to multiple trials and multiple imposition of punitive
damages for the same course of conduct is violation of both substantive and procedural due process
under the United States Constitution and the State of New York. Punitive damages are a violation of
due process. The standard for the award of punitive damages is constitutionally void for vagueness.
Lack of limitation on possible multiple imposition of punitive damage awards for the same alleged
course of conduct is unconstitutional.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
37. Plaintiffs are estopped from asserting the causes of action alleged in the complaint.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
38. Plaintiffs have waived the causes of action and recovery alleged in the complaint.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
39. Plaintiffs have failed to name and join essential and necessary parties.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
40. The defendant answering herein incorporated by reference, as if more fully set forth
at length herein, all defenses, both affirmative and otherwise, raised, pleaded or asserted by all other
answering defendants and third-party defendants.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
41. The injuries allegedly suffered by the plaintiffs, if any (which injuries are specifically
denied by the answering defendant), were the result of culpable conduct or fault of third persons for
whose conduct this answering defendant is not legally responsible, and the damaged recovered by
the plaintiffs, if any, should be diminished or reduced in the proportion to which said culpable
conduct bears upon the culpable conduct which caused the damages. Any liability on the part of this
answering defendant (which liability is vigorously and specifically denied) is fifty percent or less of
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the liability of all persons who are the cause of the alleged injuries, if any, and the liability of this
answering defendant for non-economic loss does not exceed this answering defendant's equitable
share determined in accordance with the relative culpability of each person causing or contributing
to the total liability for non-economic loss pursuant to CPLR section 1601 through 1603.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
42. Plaintiffs lack requisite capacity, standing and authority to bring the within action, as
they are not real parties in interest.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
43. The within action cannot be maintained as there is another action pending between
the same of similar parties for the same cause of action in a court of a state or the United States.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
44. This cause of action may not be maintained because of arbitration and award,
collateral estoppel, a discharge in bankruptcy, infancy (or some other disability) of the plaintiffs,
payment, release and/or res judicata.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
45. Plaintiffs do not specifically make any allegations against the answering defendant.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
46. The defendant, SPX COOLING TECHNOLOGIES, INC., alleges and asserts that the
action has been improperly venued.
AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
47. Any asbestos-containing product of this answering defendant that may be present at
plaintiff’s job locations were placed in any such buildings upon specification, approval or at the
instruction of governmental or legislative agencies or bodies.
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AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
48. Exposure to asbestos fibers attributable to this defendant is so minimal so as to be
insufficient to establish to a reasonable degree of probability that the products are capable of causing
injury or damages and must be considered speculative as a matter of law.
AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
49. At all times relevant to this litigation, this defendant complied with all applicable law,
regulations and standards applicable law, regulations and standards.
AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
50. Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use
of tobacco products and/or other substances, products, medications or drugs.
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
51. Upon information and belief, some or all of the causes of action may not be
maintained because of arbitration and award.
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
52. Upon information and belief, some or all of the causes of action may not be
maintained because of payment.
AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
53. Upon information and belief, some or all of the causes of action may not be
maintained because of release.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
54. That plaintiff’s action against defendant, SPX COOLING TECHNOLOGIES, INC.,
is barred by the omnibus Workers’ Compensation Act of 1996 enacted on September 10, 1996.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
55. That this defendant sold the products of reputable manufacturers and thus acted
reasonably in relying on the skill and expertise of said manufacturers.
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AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
56. That defendant asserts that the law of another state may apply and defendant reserves
the right to assert a defense based upon that state’s law, and/or maritime law.
WHEREFORE, defendant, SPX COOLING TECHNOLOGIES, INC., demands judgment
dismissing the Complaint of the plaintiff herein as to said defendant, together with the costs and
disbursements of this action.
Dated: New York, New York
July 20, 2021
Yours, etc.,
BARRY McTIERNAN & MOORE LLC
Suzanne M. Halbardier
Attorneys for Defendant
SPX COOLING TECHNOLOGIES, INC.
101 Greenwich Street, 14th Floor
New York, NY 10006
(212) 313-3600
TO:
LIPSITZ PONTERIO & COMERFORD LLC
Attorneys for Plaintiffs
424 Main Street – Suite 1500
Buffalo, New York 14202
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VERIFICATION
STATE OF NEW YORK )
) §:
COUNTY OF NEW YORK )
SUZANNE M. HALBARDIER, being duly sworn, deposes and says that I am the
attorney for the defendant, SPX COOLING TECHNOLOGIES, INC. I have read the foregoing
Verified Answer to Verified Complaint and it is true to the best of my knowledge, except to
those matters stated to be alleged on information and belief, and to those matters I believe them
to be true.
Deponent further states that the grounds of my belief as to the matters stated on
information and belief are derived from admissions of the defendant to the deponent and the
reason that this verification is not made by the defendant is that defendant lives outside of this
County.
__________________________
SUZANNE M. HALBARDIER
Dated: New York, New York
July 20, 2021
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FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM INDEX NO. E2021005118 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2783078 Book Page CIVIL Return To: No. Pages: 12 SUZANNE M. HALBARDIER 101 Greenwich Street, 14th Floor Instrument: ANSWER New York, NY 10006 Control #: 202107200632 Index #: E2021005118 Date: 07/20/2021 Karnisky, Robert A. Time: 1:29:18 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 202107200632 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE --------------------------------------------------------------------- ROBERT A. KARNISKY and PAULA KARNISKY, Index No.: E2021005118 Plaintiff(s), -against- VERIFIED ANSWER AIR & LIQUID SYSTEMS CORP. as successor by merger to BUFFALO PUMPS, INC., et al. Defendants. --------------------------------------------------------------------- COUNSELORS: Defendant, SPX COOLING TECHNOLOGIES, INC., Individually and as Successor to Marley Cooling Technologies, Inc. and Marley Cooling Towers s/h/a SPX COOLING TECHNOLOGIES, INC. f/k/a Marley Cooling Technologies, Inc. f/k/a The Marley Cooling Tower Company (hereinafter “SPX COOLING TECHNOLOGIES, INC.), through its attorneys, BARRY McTIERNAN & MOORE LLC, answering the Verified Complaint of the plaintiff, states as follows: 1. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs numbered “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”, “33”, “34”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44” and “45” of the Verified Complaint. 2. Denies upon information and belief, each and every allegation contained in paragraph numbered “2” of the Verified Complaint with all questions of law referred to the Court. 2 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 3. Denies upon information and belief, each and every allegation contained in paragraph numbered “35” of the Verified Complaint except admits defendant, SPX COOLING TECHNOLOGIES, INC., is a foreign corporation. 4. Denies each and every allegation contained in paragraphs numbered “46”, “47”, “48”, “49”, “50” and “51” of the Verified Complaint. ANSWERING FIRST CAUSE OF ACTION 5. Answering paragraph numbered “52” of the Verified Complaint, defendant, SPX COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response contained in paragraphs numbered “1” through “4” of this Verified Answer. 6. Denies each and every allegation contained in paragraphs numbered “53”, “54”, “55”, “56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, and “67” of the Verified Complaint. ANSWERING SECOND CAUSE OF ACTION 7. Answering paragraph numbered “68” of the Verified Complaint, defendant, SPX COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response contained in paragraphs numbered “1” through “6” of this Verified Answer. 8. Denies each and every allegation contained in paragraphs numbered “69”, “70”, “72” and “73” of the Verified Complaint. 9. Denies upon information and belief, each and every allegation contained in paragraph numbered “71” of the Verified Complaint with all questions of law referred to the Court. 3 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 ANSWERING THIRD CAUSE OF ACTION 10. Answering paragraph numbered “74” of the Verified Complaint, defendant, SPX COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response contained in paragraphs numbered “1” through “9” of this Verified Answer. 11. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs numbered “75”, “76”, “77”, “78” and “79” of the Verified Complaint. ANSWERING FOURTH CAUSE OF ACTION 12. Answering paragraph numbered “80” of the Verified Complaint, defendant, SPX COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response contained in paragraphs numbered “1” through “11” of this Verified Answer. 13. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs numbered “81”, “82”, “83”, “84”, “85”, “86”, “87”, “88”, “89”, “90”, “91”, “92”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104” and “105” of the Verified Complaint. ANSWERING FIFTH CAUSE OF ACTION 14. Answering paragraph numbered “106” of the Verified Complaint, defendant, SPX COOLING TECHNOLOGIES, INC., repeats, reiterates and realleges each and every response contained in paragraphs numbered “1” through “13” of this Verified Answer. 15. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph numbered “107” of the Verified Complaint. 16. Denies each and every allegation contained in paragraph numbered “108” of the Verified Complaint. 4 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 17. This Court lacks jurisdiction over the answering defendant as a result of improper, and lack of, service of process. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 18. All claims are time-barred by the applicable Statutes of Limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 19. All claims brought under the New York Statute of Limitations approved July 30, 1986 are time barred in that the statute is unconstitutional. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 20. The causes of action pleaded in the complaint have not been maintained in a timely fashion and plaintiffs have neglected the same and should be barred by the doctrine of laches. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 21. The forum chosen by the plaintiffs lacks personal jurisdiction over this answering defendant. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 22. The complaint and each and every allegation considered separately fails to state any cause of action against the answering defendant upon which relief can be granted. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 23. Insofar as the complaint, and each cause of action considered separately, alleges a cause of action accruing on or after September 1, 1975, to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to the plaintiff including contributory negligence and assumption of risk, in the proportion which the culpable conduction attributable to the plaintiffs bears to the culpable conduct which cause the damages. 5 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 24. Insofar as the complaint, and each cause of action considered separately, alleges a cause of action accruing before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to the plaintiffs including contributory negligence and assumption of the risk. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 25. If the plaintiffs should prove that they sustained injuries and damages as alleged, such injuries and damages resulted from acts or omissions on the part of the third-parties over whom this answering defendant had no control or right of control. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 26. While this answering defendant denies the plaintiffs' allegations of negligence, statutory liability and/or strict liability, any injury and damages, to the extent that plaintiffs may be able to prove them, were the results of intervening and/or interceding acts of superseding negligence on the part of parties over whom this answering defendant neither controlled nor had the right to control. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 27. At all times during the conduct of its corporate operations, the agents, servants and/or employees of this answering defendant used methods in manufacturing its products in conformity with the available knowledge, state of the art and research of the scientific and industrial communities. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 28. Plaintiffs, their co-workers and employers misused, abused, mistreated and misapplied the product designated as asbestos material as alleged in the complaint. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 29. 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 the plaintiffs, then this 6 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 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 plaintiffs, their co-workers and/or employers bear to the conduct which caused the alleged damages or injuries. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 30. Any oral warranties upon which plaintiffs relied are inadmissible and unavailable because of the provisions of the applicable Statue of Frauds. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 31. As to all causes of action pleaded in the complaint which are based upon expressed or implied warranties and/or representations, the alleged breaches thereof as against this answering defendant are legally insufficient by reason of their failure to allege privity of contract between the plaintiffs and this answering defendant. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 32. Plaintiffs did not directly or indirectly purchase any asbestos containing products or materials from this answering defendant and plaintiffs neither received nor relied on any representation or warranty allegedly made by this answering defendant. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 33. In the event that any breach of warranty is proven, plaintiffs failed to give proper and prompt notice of any such breach of warranty to this answering defendant. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 34. To the extent that the causes of action pleaded by plaintiffs fail to accord with the Uniform Commercial Code, including, but not limited to Section 2-725 thereof, the plaintiffs' complaint is time-barred. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 35. Upon information and belief, plaintiffs filed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the complaint. 7 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 36. To the extent that plaintiff seeks punitive damages against answering defendant, these damages are improper, unwarranted, not authorized by law and are unconstitutional in the context of this litigation. Subjecting the defendant to multiple trials and multiple imposition of punitive damages for the same course of conduct is violation of both substantive and procedural due process under the United States Constitution and the State of New York. Punitive damages are a violation of due process. The standard for the award of punitive damages is constitutionally void for vagueness. Lack of limitation on possible multiple imposition of punitive damage awards for the same alleged course of conduct is unconstitutional. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 37. Plaintiffs are estopped from asserting the causes of action alleged in the complaint. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 38. Plaintiffs have waived the causes of action and recovery alleged in the complaint. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 39. Plaintiffs have failed to name and join essential and necessary parties. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 40. The defendant answering herein incorporated by reference, as if more fully set forth at length herein, all defenses, both affirmative and otherwise, raised, pleaded or asserted by all other answering defendants and third-party defendants. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 41. The injuries allegedly suffered by the plaintiffs, if any (which injuries are specifically denied by the answering defendant), were the result of culpable conduct or fault of third persons for whose conduct this answering defendant is not legally responsible, and the damaged recovered by the plaintiffs, if any, should be diminished or reduced in the proportion to which said culpable conduct bears upon the culpable conduct which caused the damages. Any liability on the part of this answering defendant (which liability is vigorously and specifically denied) is fifty percent or less of 8 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 the liability of all persons who are the cause of the alleged injuries, if any, and the liability of this answering defendant for non-economic loss does not exceed this answering defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss pursuant to CPLR section 1601 through 1603. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 42. Plaintiffs lack requisite capacity, standing and authority to bring the within action, as they are not real parties in interest. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 43. The within action cannot be maintained as there is another action pending between the same of similar parties for the same cause of action in a court of a state or the United States. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 44. This cause of action may not be maintained because of arbitration and award, collateral estoppel, a discharge in bankruptcy, infancy (or some other disability) of the plaintiffs, payment, release and/or res judicata. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 45. Plaintiffs do not specifically make any allegations against the answering defendant. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 46. The defendant, SPX COOLING TECHNOLOGIES, INC., alleges and asserts that the action has been improperly venued. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 47. Any asbestos-containing product of this answering defendant that may be present at plaintiff’s job locations were placed in any such buildings upon specification, approval or at the instruction of governmental or legislative agencies or bodies. 9 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 48. Exposure to asbestos fibers attributable to this defendant is so minimal so as to be insufficient to establish to a reasonable degree of probability that the products are capable of causing injury or damages and must be considered speculative as a matter of law. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 49. At all times relevant to this litigation, this defendant complied with all applicable law, regulations and standards applicable law, regulations and standards. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 50. Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 51. Upon information and belief, some or all of the causes of action may not be maintained because of arbitration and award. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 52. Upon information and belief, some or all of the causes of action may not be maintained because of payment. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 53. Upon information and belief, some or all of the causes of action may not be maintained because of release. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 54. That plaintiff’s action against defendant, SPX COOLING TECHNOLOGIES, INC., is barred by the omnibus Workers’ Compensation Act of 1996 enacted on September 10, 1996. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 55. That this defendant sold the products of reputable manufacturers and thus acted reasonably in relying on the skill and expertise of said manufacturers. 10 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE 56. That defendant asserts that the law of another state may apply and defendant reserves the right to assert a defense based upon that state’s law, and/or maritime law. WHEREFORE, defendant, SPX COOLING TECHNOLOGIES, INC., demands judgment dismissing the Complaint of the plaintiff herein as to said defendant, together with the costs and disbursements of this action. Dated: New York, New York July 20, 2021 Yours, etc., BARRY McTIERNAN & MOORE LLC Suzanne M. Halbardier Attorneys for Defendant SPX COOLING TECHNOLOGIES, INC. 101 Greenwich Street, 14th Floor New York, NY 10006 (212) 313-3600 TO: LIPSITZ PONTERIO & COMERFORD LLC Attorneys for Plaintiffs 424 Main Street – Suite 1500 Buffalo, New York 14202 11 of 12 202107200632 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/20/2021 01:27 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 07/20/2021 VERIFICATION STATE OF NEW YORK ) ) §: COUNTY OF NEW YORK ) SUZANNE M. HALBARDIER, being duly sworn, deposes and says that I am the attorney for the defendant, SPX COOLING TECHNOLOGIES, INC. I have read the foregoing Verified Answer to Verified Complaint and it is true to the best of my knowledge, except to those matters stated to be alleged on information and belief, and to those matters I believe them to be true. Deponent further states that the grounds of my belief as to the matters stated on information and belief are derived from admissions of the defendant to the deponent and the reason that this verification is not made by the defendant is that defendant lives outside of this County. __________________________ SUZANNE M. HALBARDIER Dated: New York, New York July 20, 2021 12 of 12