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 07/22/2021 11:44 AM INDEX NO. E2021005118
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2785855
Book Page CIVIL
Return To: No. Pages: 16
BETH LYNN HUGHES
101 PARK AVE Instrument: ANSWER
NEW YORK, NY 10178
Control #: 202107220495
Index #: E2021005118
Date: 07/22/2021
Karnisky, Robert A. Time: 11:45:47 AM
Karnisky, Paula A.
Air & Liquid Systems Corporation
Alray Construction Corp.
Armstrong International, Inc.
Armstrong Pumps Inc.
Aurora Pump Company
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
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This Document Relates To: Index No. E2021005118
ROBERT A. KARNISKY and
PAULA A. KARNISKY, his spouse,
Plaintiffs, VERIFIED ANSWER
vs.
AIR & LIQUID SYSTEMS CORPORATION, et al.,
Defendants.
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ANSWER TO PLAINTIFFS’ ASBESTOS
COMPLAINT AND AFFIRMATIVE DEFENSES OF
DEFENDANT ITT LLC
Defendant ITT LLC (hereinafter referred to as “ITT”), as its Answer to Plaintiffs’ Asbestos
Complaint, (hereinafter referred to as “Complaint”) and Affirmative Defenses, states as follows:
1. ITT is without knowledge or information to form a belief as to the truth of the
allegations set forth in Paragraph 1.
2. To the extent that Paragraph 2 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 2. To the extent that Paragraph 2 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities. Further, the application of NY Civ. Prac.
L. Art. 16 §1602 and the workers’ compensation law are questions of law to be determined by this
Court.
3–24. Paragraphs 3 through 24 make no allegation against ITT and therefore ITT makes
no answer thereto.
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25. To the extent that Paragraph 25 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 25. Answering further, the allegation that ITT has conducted
and/or transacted business in New York is a question of law to be adjudicated by this Court. To
the extent that Paragraph 25 contains allegations against entities other than ITT, ITT is without
knowledge or information to form a belief as to the truth of the allegations set forth against those
entities.
26–45. Paragraphs 26 through 45 make no allegation against ITT and therefore ITT makes
no answer thereto.
46–51. To the extent that the allegations in Paragraphs 46 through 51 are directed against
ITT, ITT denies the allegations. To the extent that Paragraphs 46 through 51 contain allegations
against entities other than ITT, ITT is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
AS AND FOR A FIRST CAUSE OF ACTION
52. ITT repeats each and every answer contained in Paragraphs 1 through 51 of this
Answer herein with the same force and effect is as if fully set forth herein.
53. The allegations in Paragraph 53 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 53 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 53. To the extent that Paragraph 53 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
54–64. To the extent that the allegations in Paragraphs 54 through 64 are directed against
ITT, ITT denies the allegations. To the extent Paragraphs 54 through 64 contain allegations against
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entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
65. ITT denies the allegations in Paragraph 65.
66–67. To the extent that Paragraphs 66 and 67 contain allegations against ITT, ITT denies
the allegations set forth in Paragraphs 66 and 67. To the extent that Paragraphs 66 and 67 contain
allegations against entities other than ITT, ITT is without knowledge or information sufficient to
form a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A SECOND CAUSE OF ACTION
68. ITT repeats each and every answer contained in Paragraphs 1 through 67 of this
Answer herein with the same force and effect is as if fully set forth herein.
69–70. To the extent that Paragraphs 69 and 70 contain allegations against ITT, ITT denies
the allegations set forth in Paragraphs 69 and 70. To the extent that Paragraphs 69 and 70 contain
allegations against entities other than ITT, ITT is without knowledge or information sufficient to
form a belief as to the truth of the allegations set forth against those entities.
71–72. The allegations in Paragraphs 71 and 72 are overly broad, vague, and lack
foundation. Therefore, to the extent that Paragraphs 71 and 72 contain allegations against ITT,
ITT denies the allegations set forth in Paragraphs 71 and 72. To the extent that Paragraphs 71 and
72 contain allegations against entities other than ITT, ITT is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
73. To the extent that Paragraph 73 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 73. To the extent that Paragraph 73 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
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AS AND FOR A THIRD CAUSE OF ACTION
74. ITT repeats each and every answer contained in Paragraphs 1 through 73 of this
Answer herein with the same force and effect is as if fully set forth herein.
75–79. To the extent that Paragraphs 75 through 79 contain allegations against ITT, ITT
denies the allegations set forth in Paragraphs 75 through 79. To the extent that Paragraphs 75
through 79 contain allegations against entities other than ITT, ITT is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
AS AND FOR A FOURTH CAUSE OF ACTION
80. ITT repeats each and every answer contained in Paragraphs 1 through 79 of this
Answer herein with the same force and effect is as if fully set forth herein.
81–105. To the extent that Paragraphs 81 through 105 contain allegations against
ITT, ITT denies the allegations set forth in Paragraphs 81 through 105. To the extent that
Paragraphs 81 through 105 contain allegations against entities other than ITT, ITT is without
knowledge or information sufficient to form a belief as to the truth of the allegations set forth
against those entities.
AS AND FOR A FIFTH CAUSE OF ACTION
106. ITT repeats each and every answer contained in Paragraphs 1 through 105 of this
Answer herein with the same force and effect is as if fully set forth herein.
107. ITT is without knowledge or information to form a belief as to the truth of the
allegations set forth in Paragraph 107.
108. To the extent that Paragraph 108 contains allegations against ITT, ITT denies the
allegations set forth in Paragraphs 108. To the extent Paragraph 108 contains allegations against
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entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
WHEREFORE, Defendant ITT LLC denies that Plaintiffs are entitled to compensatory
and punitive damages and further requests that Plaintiffs’ claims be dismissed with prejudice and
any other relief this Honorable Court deems just.
AFFIRMATIVE DEFENSES
First Defense
Plaintiffs’ Complaint fails to state a claim upon which relief may be granted.
Second Defense
Plaintiffs’ Complaint is barred by the applicable statute of repose or statute of limitations.
Third Defense
Any claim or cause of action Plaintiffs may have is barred, in whole or in part, by the
doctrines of laches, waiver, collateral estoppel, and/or res judicata.
Fourth Defense
Plaintiffs have failed to plead the claims of fraud and conspiracy with proper specificity
and, as such, all claims premised on fraud and/or conspiracy must be dismissed.
Fifth Defense
The injuries and/or illnesses to Plaintiffs, if any, are governed by the applicable Workers’
Compensation statutes and shall have constituted an industrial disability and Plaintiffs’ exclusive
remedy, if any, shall lie within the terms and ambit of said statute.
Sixth Defense
Plaintiffs’ claims and causes of action against Defendant are barred, in whole or in part,
because Defendant owed no legal duty to Plaintiffs or, if it owed such a legal duty, it did not breach
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such duty.
Seventh Defense
The injuries allegedly sustained by Plaintiffs, if any, were proximately caused by Plaintiffs’
free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and
thus assuming the risks ordinary incident to such acts.
Eighth Defense
The injuries allegedly sustained by Plaintiffs, if any, arose in whole or in part out of the
risks, hazards, and dangers incident to the occupation of Plaintiffs, all of which were open, obvious
and well known to Plaintiffs, and the action is barred by Plaintiffs’ assumption of the risks thereof.
Ninth Defense
This action is barred, in whole or in part, by the misuse, abuse, or substantial modification
of the product.
Tenth Defense
The negligent acts or omissions of Plaintiffs were the sole proximate cause or proximate
contributing cause of the injuries and damages of which Plaintiffs complain.
Eleventh Defense
Plaintiff Robert A. Karnisky contributed to his illness, either in whole or in part, by the use
of other substances, products, medications and drugs. To the extent that Plaintiff Robert A.
Karnisky used any tobacco products, any damages awarded should be reduced in whole or in part
by the amount of his damages caused by smoking.
Twelfth Defense
That the injuries and/or illnesses, if any, sustained by Plaintiffs were caused or contributed
to by the fault, neglect, and want of care on the part of Plaintiffs or of others for whose acts or
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omissions or breach of legal duty Defendant is not liable.
Thirteenth Defense
Plaintiffs’ alleged damages were negligently caused in whole or in part by persons, firms,
corporations, or entities other than those parties before this Court and such negligence either bars
or comparatively reduces any possible recovery by Plaintiffs.
Fourteenth Defense
Insofar as the Complaint 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 Plaintiffs, including contributory
negligence and assumption of risk, in the proportion which the culpable conduct attributable to
Plaintiffs bear to the culpable conduct which caused the damages.
Fifteenth Defense
If Plaintiffs suffered damages as a result of the allegations set forth in the Complaint, then
those damages were the result of intervening or superseding acts or omissions of persons other
than the Defendant.
Sixteenth Defense
If Plaintiffs suffered injuries as a proximate result of a condition of Defendant’s products,
any of Defendant’s products would have been supplied to an employer of Plaintiffs. Such
employer was a knowledgeable and sophisticated user of said products, and thus Defendant had
no further legal duty to warn or instruct Plaintiffs.
Seventeenth Defense
If any of the allegations of Plaintiffs with respect to the defective condition of asbestos or
asbestos products are proven, then Plaintiffs are barred from any recovery due to the fact that at
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all relevant times there was no known substitute for asbestos or asbestos products.
Eighteenth Defense
The state of the medical and scientific knowledge at all relevant times was such that
Defendant neither knew nor could have known that its asbestos-containing products presented a
foreseeable risk of harm to any person in the normal and expected use of those products.
Nineteenth Defense
To the extent that Defendant conformed to the scientific knowledge and research data
available throughout the industry and scientific community, Defendant shall have fulfilled its
obligations, if any, herein, and Plaintiffs’ claims shall be barred, in whole or in part.
Twentieth Defense
If Plaintiffs sustained injuries as a result of exposure to any product manufactured by
Defendant, the degree of such damage attributable to Defendant’s product is negligible, and hence,
de minimis.
Twenty-First Defense
Defendant cannot be held jointly and severally liable for acts or omissions of other
defendants because the acts and omissions of those other defendants were separate and distinct
and the alleged harm caused by each defendant is divisible.
Twenty-Second Defense
Defendant is not liable for any damages alleged to have resulted from exposure to any of
its products which were manufactured pursuant to Government specifications.
Twenty-Third Defense
Insofar as Plaintiffs rely upon allegations of negligence, breaches of warranties, fraudulent
representations, and violations of obligations of strict product liability as against Defendant prior
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to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of
action by reason of the failure to allege the freedom of Plaintiffs from contributory negligence or
fault; and that if Plaintiffs sustained the injuries, losses, and other damages complained of in the
Complaint, they were caused and brought about, in whole or in part, by the negligence,
carelessness, assumption of risk, fault or other culpable conduct of Plaintiffs.
Twenty-Fourth Defense
To the extent that Plaintiffs allege rights assertedly derived from oral warranties or
undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds.
Twenty-Fifth Defense
To the extent Plaintiffs allege a cause of action for express and/or implied warranties and
the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to
allege privity of contract and/or privity of warranties between Plaintiffs and Defendant.
Twenty-Sixth Defense
To the extent that any breach of warranty is alleged, Plaintiffs have failed to give proper
and prompt notice of any such breach to Defendant.
Twenty-Seventh Defense
Plaintiffs did not directly or indirectly purchase any asbestos-containing products or
materials from Defendant, and Plaintiffs neither received nor relied upon any representation or
warranty allegedly made by Defendant.
Twenty-Eighth Defense
The action cannot proceed in the absence of all parties who should be named in accordance
with New York CPLR § 1001.
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Twenty-Ninth Defense
The recoverable damages, if any, should be diminished under the collateral source rule set
forth in New York CPLR § 4545.
Thirtieth Defense
To the extent that Plaintiffs may recover damages from Defendant, Defendant is entitled
to indemnification and/or contribution, in whole or in part, from each of the other defendants in
this action.
Thirty-First Defense
If Defendant is ultimately found to be liable to Plaintiffs, then, pursuant to New York CPLR
Article 16, it shall only be liable for its equitable share of Plaintiffs’ recovery since any liability
which will be found against it will be insufficient to impose joint liability.
Thirty-Second Defense
Pursuant to New York CPLR Article 16, the liability, if any, of Defendant for non-
economic loss shall not exceed its equitable share of liability.
Thirty-Third Defense
To the extent Plaintiffs seek to hold Defendant liable retroactively for conduct that was not
actionable at the time it occurred, Plaintiffs’ claims violate Defendant’s right to be free from ex
post facto laws and Defendant’s procedural and substantive due process rights under the
Constitution of the United States.
Thirty-Fourth Defense
Any claim for exemplary and/or punitive damages is barred because such damages are not
recoverable or warranted in this action.
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Thirty-Fifth Defense
The imposition of punitive damages on the facts alleged in the Complaint is barred by the
United States Constitution and the Constitution of the State of New York.
Thirty-Sixth Defense
Plaintiffs’ claim for punitive damages cannot be sustained because it would violate
Defendant’s rights under the Constitutions of the United States and the State of New York,
including, but not limited to:
(a) Defendant’s procedural and substantive due process rights and equal protection
rights under the Fifth and Fourteenth Amendments of the United States
Constitution and under cognate provisions of the New York Constitution;
(b) Defendant’s rights under the double jeopardy clauses of the Fifth Amendment of
the United States Constitution and Article I, Section 6 of the New York State
Constitution;
(c) Defendant’s rights to protection from “excessive fines” as provided in the
Constitutions of the United States and the State of New York.
Thirty-Seventh Defense
The law of New York and the Due Process Clause of the Fourteenth Amendment and the
Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant
simply for lawfully selling a legal product.
Thirty-Eighth Defense
Punitive damages are inappropriate to serve deterrence and punishment objectives because
those will be fully served by past and future liability for the same conduct at issue in this case.
Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish
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Defendant, except to the extent the alleged conduct has had an impact in this State.
Thirty-Ninth Defense
All defenses which have been or will be asserted by other defendants and/or third-party
defendants in this action are adopted and incorporated herein by reference as if fully set forth at
length as defenses to Plaintiffs’ Complaint. In addition, Defendant will rely upon any and all other
further defenses which become available or appear during discovery proceedings in this action and
hereby specifically reserves the right to amend its Answer for purposes of asserting further
additional defenses.
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Dated: July 22, 2021
Respectfully submitted,
ITT LLC
By:
Beth L. Hughes
One of the attorneys for ITT LLC
Brady S. Edwards
Beth L. Hughes
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178-0060
Phone: (212) 309-6000
Fax: (212) 309-6001
beth.hughes@morganlewis.com
To: Lipsitz, Ponterio & Comerford, LLC
424 Main Street, Suite 1500
Buffalo, NY 14202
Attorneys for Plaintiffs
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
BETH L. HUGHES, an attorney duly admitted to practice law before the Courts of the
State of New York, deposes and says that I am attorney for ITT LLC, with an office located at 101
Park Avenue, New York, New York, that I have read the foregoing Answer and Affirmative
Defenses to Plaintiffs’ Complaint on Behalf of Defendant ITT LLC and know the contents thereof,
that the same is true upon information and belief and I believe it to be true, that the grounds of my
belief are public records, records and documents currently in my possession pertaining to this
matter, and conversations with client’s agents, and that the reason why this verification is made by
me and not by said defendant is that said defendant is a foreign corporation which has no offices
located in New York County where I maintain an office.
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
Dated: July 22, 2021
New York, New York
Beth L. Hughes
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
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This Document Relates To: Index No. E2021005118
ROBERT A. KARNISKY and
PAULA A. KARNISKY, his spouse,
Plaintiffs, AFFIRMATION OF SERVICE
vs.
AIR & LIQUID SYSTEMS CORPORATION, et al.,
Defendants.
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STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BETH HUGHES, an attorney of the State of New York, hereby certifies as follows:
1. I am an attorney at the law firm of Morgan, Lewis & Bockius, attorneys for
Defendant ITT LLC in the above-captioned matter.
2. On this day, I caused to be served via electronic mail, the attached Answer to
Plaintiffs’ Asbestos Complaint and Affirmative Defenses of Defendant ITT LLC and Attorney
Verification on:
Lipsitz, Ponterio & Comerford, LLC
424 Main Street, Suite 1500
Buffalo, NY 14202
All Defense Counsel of Record (via electronic mail)
Dated: July 22, 2021
New York, New York
Beth L. Hughes
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FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM INDEX NO. E2021005118 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2785855 Book Page CIVIL Return To: No. Pages: 16 BETH LYNN HUGHES 101 PARK AVE Instrument: ANSWER NEW YORK, NY 10178 Control #: 202107220495 Index #: E2021005118 Date: 07/22/2021 Karnisky, Robert A. Time: 11:45:47 AM Karnisky, Paula A. Air & Liquid Systems Corporation Alray Construction Corp. Armstrong International, Inc. Armstrong Pumps Inc. Aurora Pump Company Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 16 202107220495 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE --------------------------------------------------------------x This Document Relates To: Index No. E2021005118 ROBERT A. KARNISKY and PAULA A. KARNISKY, his spouse, Plaintiffs, VERIFIED ANSWER vs. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants. --------------------------------------------------------------x ANSWER TO PLAINTIFFS’ ASBESTOS COMPLAINT AND AFFIRMATIVE DEFENSES OF DEFENDANT ITT LLC Defendant ITT LLC (hereinafter referred to as “ITT”), as its Answer to Plaintiffs’ Asbestos Complaint, (hereinafter referred to as “Complaint”) and Affirmative Defenses, states as follows: 1. ITT is without knowledge or information to form a belief as to the truth of the allegations set forth in Paragraph 1. 2. To the extent that Paragraph 2 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 2. To the extent that Paragraph 2 contains allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. Further, the application of NY Civ. Prac. L. Art. 16 §1602 and the workers’ compensation law are questions of law to be determined by this Court. 3–24. Paragraphs 3 through 24 make no allegation against ITT and therefore ITT makes no answer thereto. -1- 2 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 25. To the extent that Paragraph 25 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 25. Answering further, the allegation that ITT has conducted and/or transacted business in New York is a question of law to be adjudicated by this Court. To the extent that Paragraph 25 contains allegations against entities other than ITT, ITT is without knowledge or information to form a belief as to the truth of the allegations set forth against those entities. 26–45. Paragraphs 26 through 45 make no allegation against ITT and therefore ITT makes no answer thereto. 46–51. To the extent that the allegations in Paragraphs 46 through 51 are directed against ITT, ITT denies the allegations. To the extent that Paragraphs 46 through 51 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FIRST CAUSE OF ACTION 52. ITT repeats each and every answer contained in Paragraphs 1 through 51 of this Answer herein with the same force and effect is as if fully set forth herein. 53. The allegations in Paragraph 53 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 53 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 53. To the extent that Paragraph 53 contains allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 54–64. To the extent that the allegations in Paragraphs 54 through 64 are directed against ITT, ITT denies the allegations. To the extent Paragraphs 54 through 64 contain allegations against -2- 3 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 65. ITT denies the allegations in Paragraph 65. 66–67. To the extent that Paragraphs 66 and 67 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 66 and 67. To the extent that Paragraphs 66 and 67 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A SECOND CAUSE OF ACTION 68. ITT repeats each and every answer contained in Paragraphs 1 through 67 of this Answer herein with the same force and effect is as if fully set forth herein. 69–70. To the extent that Paragraphs 69 and 70 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 69 and 70. To the extent that Paragraphs 69 and 70 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 71–72. The allegations in Paragraphs 71 and 72 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraphs 71 and 72 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 71 and 72. To the extent that Paragraphs 71 and 72 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 73. To the extent that Paragraph 73 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 73. To the extent that Paragraph 73 contains allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. -3- 4 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 AS AND FOR A THIRD CAUSE OF ACTION 74. ITT repeats each and every answer contained in Paragraphs 1 through 73 of this Answer herein with the same force and effect is as if fully set forth herein. 75–79. To the extent that Paragraphs 75 through 79 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 75 through 79. To the extent that Paragraphs 75 through 79 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FOURTH CAUSE OF ACTION 80. ITT repeats each and every answer contained in Paragraphs 1 through 79 of this Answer herein with the same force and effect is as if fully set forth herein. 81–105. To the extent that Paragraphs 81 through 105 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 81 through 105. To the extent that Paragraphs 81 through 105 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FIFTH CAUSE OF ACTION 106. ITT repeats each and every answer contained in Paragraphs 1 through 105 of this Answer herein with the same force and effect is as if fully set forth herein. 107. ITT is without knowledge or information to form a belief as to the truth of the allegations set forth in Paragraph 107. 108. To the extent that Paragraph 108 contains allegations against ITT, ITT denies the allegations set forth in Paragraphs 108. To the extent Paragraph 108 contains allegations against -4- 5 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. WHEREFORE, Defendant ITT LLC denies that Plaintiffs are entitled to compensatory and punitive damages and further requests that Plaintiffs’ claims be dismissed with prejudice and any other relief this Honorable Court deems just. AFFIRMATIVE DEFENSES First Defense Plaintiffs’ Complaint fails to state a claim upon which relief may be granted. Second Defense Plaintiffs’ Complaint is barred by the applicable statute of repose or statute of limitations. Third Defense Any claim or cause of action Plaintiffs may have is barred, in whole or in part, by the doctrines of laches, waiver, collateral estoppel, and/or res judicata. Fourth Defense Plaintiffs have failed to plead the claims of fraud and conspiracy with proper specificity and, as such, all claims premised on fraud and/or conspiracy must be dismissed. Fifth Defense The injuries and/or illnesses to Plaintiffs, if any, are governed by the applicable Workers’ Compensation statutes and shall have constituted an industrial disability and Plaintiffs’ exclusive remedy, if any, shall lie within the terms and ambit of said statute. Sixth Defense Plaintiffs’ claims and causes of action against Defendant are barred, in whole or in part, because Defendant owed no legal duty to Plaintiffs or, if it owed such a legal duty, it did not breach -5- 6 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 such duty. Seventh Defense The injuries allegedly sustained by Plaintiffs, if any, were proximately caused by Plaintiffs’ free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and thus assuming the risks ordinary incident to such acts. Eighth Defense The injuries allegedly sustained by Plaintiffs, if any, arose in whole or in part out of the risks, hazards, and dangers incident to the occupation of Plaintiffs, all of which were open, obvious and well known to Plaintiffs, and the action is barred by Plaintiffs’ assumption of the risks thereof. Ninth Defense This action is barred, in whole or in part, by the misuse, abuse, or substantial modification of the product. Tenth Defense The negligent acts or omissions of Plaintiffs were the sole proximate cause or proximate contributing cause of the injuries and damages of which Plaintiffs complain. Eleventh Defense Plaintiff Robert A. Karnisky contributed to his illness, either in whole or in part, by the use of other substances, products, medications and drugs. To the extent that Plaintiff Robert A. Karnisky used any tobacco products, any damages awarded should be reduced in whole or in part by the amount of his damages caused by smoking. Twelfth Defense That the injuries and/or illnesses, if any, sustained by Plaintiffs were caused or contributed to by the fault, neglect, and want of care on the part of Plaintiffs or of others for whose acts or -6- 7 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 omissions or breach of legal duty Defendant is not liable. Thirteenth Defense Plaintiffs’ alleged damages were negligently caused in whole or in part by persons, firms, corporations, or entities other than those parties before this Court and such negligence either bars or comparatively reduces any possible recovery by Plaintiffs. Fourteenth Defense Insofar as the Complaint 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 Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which caused the damages. Fifteenth Defense If Plaintiffs suffered damages as a result of the allegations set forth in the Complaint, then those damages were the result of intervening or superseding acts or omissions of persons other than the Defendant. Sixteenth Defense If Plaintiffs suffered injuries as a proximate result of a condition of Defendant’s products, any of Defendant’s products would have been supplied to an employer of Plaintiffs. Such employer was a knowledgeable and sophisticated user of said products, and thus Defendant had no further legal duty to warn or instruct Plaintiffs. Seventeenth Defense If any of the allegations of Plaintiffs with respect to the defective condition of asbestos or asbestos products are proven, then Plaintiffs are barred from any recovery due to the fact that at -7- 8 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 all relevant times there was no known substitute for asbestos or asbestos products. Eighteenth Defense The state of the medical and scientific knowledge at all relevant times was such that Defendant neither knew nor could have known that its asbestos-containing products presented a foreseeable risk of harm to any person in the normal and expected use of those products. Nineteenth Defense To the extent that Defendant conformed to the scientific knowledge and research data available throughout the industry and scientific community, Defendant shall have fulfilled its obligations, if any, herein, and Plaintiffs’ claims shall be barred, in whole or in part. Twentieth Defense If Plaintiffs sustained injuries as a result of exposure to any product manufactured by Defendant, the degree of such damage attributable to Defendant’s product is negligible, and hence, de minimis. Twenty-First Defense Defendant cannot be held jointly and severally liable for acts or omissions of other defendants because the acts and omissions of those other defendants were separate and distinct and the alleged harm caused by each defendant is divisible. Twenty-Second Defense Defendant is not liable for any damages alleged to have resulted from exposure to any of its products which were manufactured pursuant to Government specifications. Twenty-Third Defense Insofar as Plaintiffs rely upon allegations of negligence, breaches of warranties, fraudulent representations, and violations of obligations of strict product liability as against Defendant prior -8- 9 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of action by reason of the failure to allege the freedom of Plaintiffs from contributory negligence or fault; and that if Plaintiffs sustained the injuries, losses, and other damages complained of in the Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumption of risk, fault or other culpable conduct of Plaintiffs. Twenty-Fourth Defense To the extent that Plaintiffs allege rights assertedly derived from oral warranties or undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds. Twenty-Fifth Defense To the extent Plaintiffs allege a cause of action for express and/or implied warranties and the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between Plaintiffs and Defendant. Twenty-Sixth Defense To the extent that any breach of warranty is alleged, Plaintiffs have failed to give proper and prompt notice of any such breach to Defendant. Twenty-Seventh Defense Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from Defendant, and Plaintiffs neither received nor relied upon any representation or warranty allegedly made by Defendant. Twenty-Eighth Defense The action cannot proceed in the absence of all parties who should be named in accordance with New York CPLR § 1001. -9- 10 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 Twenty-Ninth Defense The recoverable damages, if any, should be diminished under the collateral source rule set forth in New York CPLR § 4545. Thirtieth Defense To the extent that Plaintiffs may recover damages from Defendant, Defendant is entitled to indemnification and/or contribution, in whole or in part, from each of the other defendants in this action. Thirty-First Defense If Defendant is ultimately found to be liable to Plaintiffs, then, pursuant to New York CPLR Article 16, it shall only be liable for its equitable share of Plaintiffs’ recovery since any liability which will be found against it will be insufficient to impose joint liability. Thirty-Second Defense Pursuant to New York CPLR Article 16, the liability, if any, of Defendant for non- economic loss shall not exceed its equitable share of liability. Thirty-Third Defense To the extent Plaintiffs seek to hold Defendant liable retroactively for conduct that was not actionable at the time it occurred, Plaintiffs’ claims violate Defendant’s right to be free from ex post facto laws and Defendant’s procedural and substantive due process rights under the Constitution of the United States. Thirty-Fourth Defense Any claim for exemplary and/or punitive damages is barred because such damages are not recoverable or warranted in this action. - 10 - 11 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 Thirty-Fifth Defense The imposition of punitive damages on the facts alleged in the Complaint is barred by the United States Constitution and the Constitution of the State of New York. Thirty-Sixth Defense Plaintiffs’ claim for punitive damages cannot be sustained because it would violate Defendant’s rights under the Constitutions of the United States and the State of New York, including, but not limited to: (a) Defendant’s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments of the United States Constitution and under cognate provisions of the New York Constitution; (b) Defendant’s rights under the double jeopardy clauses of the Fifth Amendment of the United States Constitution and Article I, Section 6 of the New York State Constitution; (c) Defendant’s rights to protection from “excessive fines” as provided in the Constitutions of the United States and the State of New York. Thirty-Seventh Defense The law of New York and the Due Process Clause of the Fourteenth Amendment and the Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant simply for lawfully selling a legal product. Thirty-Eighth Defense Punitive damages are inappropriate to serve deterrence and punishment objectives because those will be fully served by past and future liability for the same conduct at issue in this case. Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish - 11 - 12 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 Defendant, except to the extent the alleged conduct has had an impact in this State. Thirty-Ninth Defense All defenses which have been or will be asserted by other defendants and/or third-party defendants in this action are adopted and incorporated herein by reference as if fully set forth at length as defenses to Plaintiffs’ Complaint. In addition, Defendant will rely upon any and all other further defenses which become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend its Answer for purposes of asserting further additional defenses. - 12 - 13 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 Dated: July 22, 2021 Respectfully submitted, ITT LLC By: Beth L. Hughes One of the attorneys for ITT LLC Brady S. Edwards Beth L. Hughes Morgan, Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Phone: (212) 309-6000 Fax: (212) 309-6001 beth.hughes@morganlewis.com To: Lipsitz, Ponterio & Comerford, LLC 424 Main Street, Suite 1500 Buffalo, NY 14202 Attorneys for Plaintiffs - 13 - 14 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) BETH L. HUGHES, an attorney duly admitted to practice law before the Courts of the State of New York, deposes and says that I am attorney for ITT LLC, with an office located at 101 Park Avenue, New York, New York, that I have read the foregoing Answer and Affirmative Defenses to Plaintiffs’ Complaint on Behalf of Defendant ITT LLC and know the contents thereof, that the same is true upon information and belief and I believe it to be true, that the grounds of my belief are public records, records and documents currently in my possession pertaining to this matter, and conversations with client’s agents, and that the reason why this verification is made by me and not by said defendant is that said defendant is a foreign corporation which has no offices located in New York County where I maintain an office. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: July 22, 2021 New York, New York Beth L. Hughes 14 15 of 16 202107220495 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 07/22/2021 11:44 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/22/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE --------------------------------------------------------------x This Document Relates To: Index No. E2021005118 ROBERT A. KARNISKY and PAULA A. KARNISKY, his spouse, Plaintiffs, AFFIRMATION OF SERVICE vs. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants. --------------------------------------------------------------x STATE OF NEW YORK ) ss: COUNTY OF NEW YORK ) BETH HUGHES, an attorney of the State of New York, hereby certifies as follows: 1. I am an attorney at the law firm of Morgan, Lewis & Bockius, attorneys for Defendant ITT LLC in the above-captioned matter. 2. On this day, I caused to be served via electronic mail, the attached Answer to Plaintiffs’ Asbestos Complaint and Affirmative Defenses of Defendant ITT LLC and Attorney Verification on: Lipsitz, Ponterio & Comerford, LLC 424 Main Street, Suite 1500 Buffalo, NY 14202 All Defense Counsel of Record (via electronic mail) Dated: July 22, 2021 New York, New York Beth L. Hughes 15 16 of 16