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.
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FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM INDEX NO. E2021005118 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2931067 Book Page CIVIL Return To: No. Pages: 10 PATRICK BRENNAN NAYLON 2 State Street Instrument: ANSWER Suite 1200 Rochestser, NY 14614 Control #: 202112150131 Index #: E2021005118 Date: 12/15/2021 Karnisky, Robert A. Time: 9:42:44 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 10 202112150131 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 SUPREME COURT OF THE STATE OF NEW YORK SEVENTH JUDICIAL DISTRICT COUNTY OF MONROE ROBERT A. KARNISKY and PAULA A. KARNISKY, his spouse, ANSWER TO PLAINTIFFS’ FIRST Plaintiffs, AMENDED COMPLAINT Vs. Index No.: E2021005118 ELMER W. DAVIS, INC., ET AL. Defendants. The Defendant, ELMER W. DAVIS, INC. (hereinafter referred to as “this answering Defendant”), by and through its attorneys, Goldberg Segalla LLP, as and for its Answer to the Plaintiffs’ First Amended Complaint hereby answering the allegations as they apply to this answering Defendant states upon information and belief as follows: 1. Defendant repeats, reiterates, re-alleges and incorporates each and every answer and affirmative defense set forth in Defendant’s Answer to the Plaintiffs’ First Amended Complaint dated June 9, 2021 with the same force and effect as if fully set forth at length herein in responding to the allegations set forth in Plaintiffs’ Verified Complaint. 2. Defendant denies knowledge or information sufficient to form a belief as to the allegations against newly added additional parties to the Plaintiffs’ First Amended Complaint. 3. Defendant denies any allegation not previously admitted or denied or controverted in Plaintiffs’ First Amended Complaint. 31946052.v1 2 of 10 202112150131 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 4. Upon information and belief, the First Amended Complaint fails to state any cause of action against this answering Defendant. AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 5. Upon information and belief the cause of action or causes of action, if any, alleged in the Plaintiffs’ First Amended Complaint is barred by the applicable statute of limitations. AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 6. That culpable conduct on the part of the Plaintiffs caused or contributed to the happening of the accident. AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 7. That Plaintiffs should be barred from recovery by reason of the fact that the subject accident was entirely the result of culpable conduct on the part of the Plaintiffs or in the event that Plaintiffs are entitled to recover, the amount of damages otherwise recoverable should be diminished in the proportion which the culpable conduct attributable to the Plaintiffs bear to the culpable conduct which caused the damages. 31946052.v1 3 of 10 202112150131 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 8. Upon information and belief, Plaintiffs sole and exclusive remedy is under the Workers’ Compensation laws of the State of New York and this action is therefore barred. AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 9. Upon information and belief, the Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from this answering Defendant and the Plaintiffs neither received nor relied upon any representation or warranty allegedly made by this answering Defendant. AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 10. Upon information and belief, the Plaintiffs failed to act to mitigate the injuries and disability alleged in the First Amended Complaint and any such alleged injuries and disability were increased by said failure. 31946052.v1 4 of 10 202112150131 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 11. Upon information and belief, each alleged injury and damage to the Plaintiffs were proximately caused by the negligence of persons other than this answering Defendant including, without limitation, Plaintiffs, Plaintiffs’ employer and fellow workers. AS AND FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 12. Upon information and belief, by reason of the state of the art of medicine, it was not known or could not have been known either to this answering Defendant or to the Plaintiffs that asbestos or asbestos-containing products or the handling of the same were in any way dangerous to health. AS AND FOR A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 13. Upon information and belief, the Court lacks jurisdiction over the subject matter of the instant action. AS AND FOR AN ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 14. Upon information and belief, the imposition of punitive damages on the facts alleged in the First Amended Complaint against this answering Defendant would violate the due process clauses of the Constitutions of the United States and of the State of New York. 31946052.v1 5 of 10 202112150131 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 AS AND FOR A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 15. Upon information and belief, the imposition of punitive damages against this answering Defendant on the facts alleged in the First Amended Complaint would violate the excessive fines clause of the Constitutions of the United States and of the State of New York. AS AND FOR A THIRTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 16. Upon information and belief, the imposition of punitive damages against this answering Defendant on the facts alleged in the First Amended Complaint is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article I, Section 6 of the New York State Constitution. AS AND FOR A FOURTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 17. Upon information and belief, the imposition of punitive damages on the facts alleged in the First Amended Complaint is barred by the ex post facto clause of the United States Constitution. AS AND FOR A FIFTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 18. Upon information and belief, the imposition of punitive damages on the facts alleged in the First Amended Complaint is barred by the United States Constitution and by the Constitution of the State of New York. AS AND FOR A SIXTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 19. The allegations of the First Amended Complaint fail to state any cause of action as against this answering Defendant for punitive damages as a matter of law. 31946052.v1 6 of 10 202112150131 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 AS AND FOR A SEVENTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 20. Upon information and belief, the injuries allegedly sustained by the Plaintiffs were caused by third parties over whom this answering Defendant had no control. AS AND FOR AN EIGHTEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 21. Defendant, Elmer W. Davis, Inc., denies any negligence on its part, but if Plaintiffs recover a judgment in this action against this answering Defendant, Elmer W. Davis, Inc.’s liability will have been brought about or caused by reason of the primary carelessness and negligence of the co-Defendants, without any such carelessness or negligence on the part of this answering Defendant, and co-Defendants shall indemnify this answering Defendant for all or a part of any such judgment, including costs and attorney fees, in such amount as shall be ultimately determined at the trial of this action. AS AND FOR AN NINETEENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 22. This answering Defendant did not manufacture or warrant any products. AS AND FOR AN TWENTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 23. Labor Law Claims are not applicable to the work of Defendant. AS AND FOR AN TWENTY-FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 24. Defendant did not have notice of any dangerous or defective condition nor was Defendant responsible for any dangerous or defective conditions on any worksite. 31946052.v1 7 of 10 202112150131 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 AS AND FOR A TWENTY-SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE AND CROSS-CLAIM AGAINST CO-DEFENDANTS 25. This answering Defendant specifically denies liability for the damages alleged by Plaintiffs, but if liability is assessed against this answering Defendant’s percentage of liability is 50% or less of the total liability assigned to all persons or entities liable, and therefore, pursuant to Article 16 of the Civil Practice Law and Rules, this answering Defendant’s liability for non-economic loss shall not exceed its equitable share determined in accordance with the relative culpability of each person or entity causing or contributing to the total liability for non-economic loss. WHEREFORE, this answering Defendant, Elmer W. Davis, Inc., demands judgment as follows: a. Dismissing the First Amended Complaint herein. b. That Plaintiffs’ damages, in the event that Plaintiffs are entitled to recover, be diminished in the proportion which the culpable conduct attributable to the Plaintiffs bears to the culpable conduct which caused the damages. c. Awarding judgment for contribution and/or indemnification over against Defendants; d. Awarding judgment for indemnification over against Defendants; e. For such other, further and different relief which to this Court may seem just, proper and equitable. DATED: December 15, 2021 Rochester, New York 31946052.v1 8 of 10 202112150131 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 GOLDBERG SEGALLA LLP By: /s/ Patrick B. Naylon Patrick B. Naylon, Esq. Attorneys for Defendant, Elmer W. Davis, Inc. 2 State Street, Suite 1200 Rochester, NY 14614 Telephone: (585) 295-8320 pnaylon@goldbergsegalla.com TO: LIPSITZ & PONTERIO & COMERFORD, LLC Sean M. Esford, Esq. Attorneys for Plaintiffs 424 Main Street, Suite 1500 Buffalo, New York 14202 Telephone: (716) 849-0701 cc: All Defense Counsel of Record (via NYSCEF) 31946052.v1 9 of 10 202112150131 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 12/15/2021 09:41 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 12/15/2021 SUPREME COURT OF THE STATE OF NEW YORK SEVENTH JUDICIAL DISTRICT COUNTY OF MONROE ROBERT A. KARNISKY and PAULA A. KARNISKY, his spouse, CERTIFICATE OF SERVICE Plaintiffs, Vs. Index No.: E2021005118 ELMER W. DAVIS, INC., ET AL. Defendants. I HEREBY CERTIFY that on the 15th day of December 2021, a copy of the foregoing Answer to the First Amended Complaint was filed electronically this day and is available for viewing from the Court's NYSCEF system. Notice of this filing will be sent to all counsel of record via the Court's NYSCEF system. GOLDBERG SEGALLA LLP By: /s/ Patrick B. Naylon Patrick B. Naylon, Esq. Attorneys for Defendant, Elmer W. Davis, Inc. 2 State Street, Suite 1200 Rochester, NY 14614 Telephone: (585) 295-8320 pnaylon@goldbergsegalla.com 31946052.v1 10 of 10