Preview
FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-----------------------------------------------------------------------------X Index No.:
HARRY J. HAMPSON,
Date Filed:
Plaintiff(s), Plaintiff Designates
SUFFOLK
-against- County as the Place of Trial
AMCHEM PRODUCTS, INC., The Basis of Venue is
Defendants’ Place of Business
n/k/a RHONE POULENC AG COMPANY,
n/k/a BAYER CROPSCIENCE INC.,
ARVINMERITOR, INC., SUMMONS
Individually and as successor-in-interest to
ROCKWELL AUTOMOTIVE,
CBS CORPORATION, f/k/a VIACOM INC.,
successor by merger to
CBS CORPORATION, f/k/a
WESTINGHOUSE ELECTRIC CORPORATION,
CUMMINS, INC.,
DCo LLC f/k/a DANA COMPANIES, LLC,
EATON CORPORATION, Individually and as successor
-in-interest to CUTLER-HAMMER, INC.,
GENERAL ELECTRIC COMPANY,
GRIZZLY FRICTION PRODUCTS,
a division of NUTURN CORPORATION,
HENNESSY INDUSTRIES, INC.
Individually and as successor-in-interest to AMMCO,
HONEYWELL INTERNATIONAL, INC.,
f/k/a ALLIED SIGNAL, INC. / BENDIX,
MACK TRUCKS, INC.,
McCORD CORPORATION,
MORSE TEC LLC, f/k/a BORG WARNER MORSE TEC
LLC and Successor-by-Merger to BORG-WARNER
CORPORATION,
NAVISTAR, INC., a/k/a INTERNATIONAL
TRUCK & ENGINE CORP. f/k/a INTERNATIONAL
HARVESTER, INC.,
PACCAR, INC.,
Individually and through its division,
PETERBILT MOTORS CO.,
PFIZER, INC. (PFIZER),
PNEUMO ABEX LLC, successor in interest
to ABEX CORPORATION (ABEX),
STANDARD MOTOR PRODUCTS, INC.,
U.S. RUBBER COMPANY (UNIROYAL),
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UNION CARBIDE CORPORATION,
Defendants.
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To the above named Defendant(s)
You are hereby summoned to answer the verified complaint in this action and to serve a copy of
your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on
the Plaintiff's Attorney(s) within 20 days after the service of this summons, exclusive of the day of
service (or within 30 days after the service is complete if this summons is not personally delivered to
you within the State of New York); and in case of your failure to appear or answer, judgment will be
taken against you by default for the relief demanded in the complaint.
Dated, April 07, 2021
New York, New York
WEITZ & LUXENBERG, P.C.
Defendant's address: Attorney(s) for Plaintiff
Post Office Address
SEE ATTACHED DEFENDANTS RIDER 700 Broadway
New York, New York 10003
(212) 558-5500
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DEFENDANTS' RIDER
AMCHEM PRODUCTS, INC.,
n/k/a RHONE POULENC AG COMPANY,
n/k/a BAYER CROPSCIENCE INC.
99 Washington Ave
Albany, NY 12207
ARVINMERITOR, INC.,
Individually and as successor-in-interest to
ROCKWELL AUTOMOTIVE
2135 W Maple Road
Troy, MI 48084
CBS CORPORATION, f/k/a VIACOM INC.,
successor by merger to
CBS CORPORATION, f/k/a
WESTINGHOUSE ELECTRIC CORPORATION
Asbestos Litigation Support Manager
ECKERT SEAMANS CHERIN & MELLOTT, LLC
Case Management & Technology Center
USX Towers
600 Grant Street
Pittsburgh, PA 15219
CUMMINS, INC.
Corporation Service Company
2711 Centerville Road
Wilmington, DE 19808
DCo LLC f/k/a DANA COMPANIES, LLC
900 West South Boundary Street
Bldg 8A
Perrysburg, OH 43551
and
4400 Easton Commons, Suite 125
Columbus, OH 43219
EATON CORPORATION, Individually and as successor
-in-interest to CUTLER-HAMMER, INC.
CT Corporation System
111 8th Avenue
New York, NY 10011
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GENERAL ELECTRIC COMPANY
Electric Insurance Company
75 Sam Fonzo Drive
Beverly, MA 01915
GRIZZLY FRICTION PRODUCTS,
a division of NUTURN CORPORATION
2400 Maremont Parkway
London, TN 37774
HENNESSY INDUSTRIES, INC.
Individually and as successor-in-interest to AMMCO
Corporation Trust Company
1209 Orange St
Wilmington, DE 19801
HONEYWELL INTERNATIONAL, INC.,
f/k/a ALLIED SIGNAL, INC. / BENDIX
100 Charles Ewing Blvd
Suite 160
Ewing, NJ 08628
MACK TRUCKS, INC.
CT Corporation Systems
28 Liberty St, 42nd Fl
New York, NY 10005
McCORD CORPORATION
40600 Ann Arbor Road East Suite 201
Plymouth, MI 48170-4675
MORSE TEC LLC, f/k/a BORG WARNER MORSE TEC
LLC and Successor-by-Merger to BORG-WARNER
CORPORATION
CT Corporation
1209 Orange Street
Wilmington, DE 19801
NAVISTAR, INC., a/k/a INTERNATIONAL
TRUCK & ENGINE CORP. f/k/a INTERNATIONAL
HARVESTER, INC.
CSC
80 State street
Albany, NY 12207
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PACCAR, INC.,
Individually and through its division,
PETERBILT MOTORS CO.
The Prentice Hall Corporation System
211 East 7th Street, Suite 620
Austin, TX 78701
PFIZER, INC. (PFIZER)
CT Corporation Systems
28 Liberty st, 42nd Fl
New York, NY 10005
PNEUMO ABEX LLC, successor in interest
to ABEX CORPORATION (ABEX)
80 State Street
Albany, NY 12207
STANDARD MOTOR PRODUCTS, INC.
37-18 Northern Blvd.
Long Island City, NY 11101
U.S. RUBBER COMPANY (UNIROYAL)
Greenfield, Stein & Senior
(Agent for Service of Process)
600 Third Avenue, 11th Floor
New York, NY 10016-1903
UNION CARBIDE CORPORATION
CT Corporation Systems
28 Liberty st, 42nd Fl
New York, NY 10005
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------------------------------------------------------------------X Index No:
HARRY J. HAMPSON,
Date Filed:
Plaintiff(s),
-against- VERIFIED
COMPLAINT
AMCHEM PRODUCTS, INC.,
PLAINTIFF DEMANDS
n/k/a RHONE POULENC AG COMPANY,
TRIAL BY JURY
n/k/a BAYER CROPSCIENCE INC.,
ARVINMERITOR, INC.,
Individually and as successor-in-interest to
ROCKWELL AUTOMOTIVE,
CBS CORPORATION, f/k/a VIACOM INC.,
successor by merger to
CBS CORPORATION, f/k/a
WESTINGHOUSE ELECTRIC CORPORATION,
CUMMINS, INC.,
DCo LLC f/k/a DANA COMPANIES, LLC,
EATON CORPORATION, Individually and as successor
-in-interest to CUTLER-HAMMER, INC.,
GENERAL ELECTRIC COMPANY,
GRIZZLY FRICTION PRODUCTS,
a division of NUTURN CORPORATION,
HENNESSY INDUSTRIES, INC.
Individually and as successor-in-interest to AMMCO,
HONEYWELL INTERNATIONAL, INC.,
f/k/a ALLIED SIGNAL, INC. / BENDIX,
MACK TRUCKS, INC.,
McCORD CORPORATION,
MORSE TEC LLC, f/k/a BORG WARNER MORSE TEC
LLC and Successor-by-Merger to BORG-WARNER
CORPORATION,
NAVISTAR, INC., a/k/a INTERNATIONAL
TRUCK & ENGINE CORP. f/k/a INTERNATIONAL
HARVESTER, INC.,
PACCAR, INC.,
Individually and through its division,
PETERBILT MOTORS CO.,
PFIZER, INC. (PFIZER),
PNEUMO ABEX LLC, successor in interest
to ABEX CORPORATION (ABEX),
STANDARD MOTOR PRODUCTS, INC.,
U.S. RUBBER COMPANY (UNIROYAL),
UNION CARBIDE CORPORATION,
Defendants.
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Plaintiff(s), by his/her attorneys, upon information and belief, at all times hereinafter
mentioned, allege as follows:
1. Plaintiff(s), HARRY J. HAMPSON, is a resident and citizen of the
State of New York; .
2. The term "Defendants" shall apply to all named business and/or
corporate entities and/or such company's predecessors and/or successors in interest more fully
described below.
3. The Defendants named herein have done business in this State
and/or have conducted and/or transacted business in this state, have committed one or more
tortious acts within this State and/or have otherwise performed acts within and/or without this
State giving rise to injuries and losses within this State, which acts subject each Defendant to the
jurisdiction of the Courts of this State.
4. Defendant AMCHEM PRODUCTS, INC., n/k/a RHONE
POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., was and still is a duly
organized domestic corporation doing business in the State of New York.
5. Defendant ARVINMERITOR, INC., Individually and as
successor-in-interest to ROCKWELL AUTOMOTIVE, was and still is a duly organized
domestic corporation doing business in the State of New York.
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6. Defendant CBS CORPORATION, f/k/a VIACOM INC., successor
by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION,
was and still is a duly organized domestic corporation doing business in the State of New York.
7. Defendant CUMMINS, INC., was and still is a duly organized
domestic corporation doing business in the State of New York.
8. Defendant DCo LLC f/k/a DANA COMPANIES, LLC, was and
still is a duly organized domestic corporation doing business in the State of New York.
9. Defendant EATON CORPORATION, Individually and as
successor -in-interest to CUTLER-HAMMER, INC., was and still is a duly organized domestic
corporation doing business in the State of New York.
10. Defendant GENERAL ELECTRIC COMPANY, was and still is a
duly organized domestic corporation doing business in the State of New York.
11. Defendant GRIZZLY FRICTION PRODUCTS, a division of
NUTURN CORPORATION, was and still is a duly organized domestic corporation doing
business in the State of New York.
12. Defendant HENNESSY INDUSTRIES, INC. Individually and as
successor-in-interest to AMMCO, was and still is a duly organized domestic corporation doing
business in the State of New York.
13. Defendant HONEYWELL INTERNATIONAL, INC., f/k/a
ALLIED SIGNAL, INC. / BENDIX, was and still is a duly organized domestic corporation
doing business in the State of New York.
14. Defendant MACK TRUCKS, INC., was and still is a duly
organized domestic corporation doing business in the State of New York.
15. Defendant McCORD CORPORATION, was and still is a duly
organized domestic corporation doing business in the State of New York.
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16. Defendant MORSE TEC LLC, f/k/a BORG WARNER MORSE
TEC
LLC and Successor-by-Merger to BORG-WARNER
CORPORATION, was and still is a duly organized domestic corporation doing business in the
State of New York.
17. Defendant NAVISTAR, INC., a/k/a INTERNATIONAL TRUCK
& ENGINE CORP. f/k/a INTERNATIONAL HARVESTER, INC., was and still is a duly
organized domestic corporation doing business in the State of New York.
18. Defendant PACCAR, INC., Individually and through its division,
PETERBILT MOTORS CO., was and still is a duly organized domestic corporation doing
business in the State of New York.
19. Defendant PFIZER, INC. (PFIZER), was and still is a duly
organized domestic corporation doing business in the State of New York.
20. Defendant PNEUMO ABEX LLC, successor in interest to ABEX
CORPORATION (ABEX), was and still is a duly organized domestic corporation doing business
in the State of New York.
21. Defendant STANDARD MOTOR PRODUCTS, INC., was and
still is a duly organized domestic corporation doing business in the State of New York.
22. Defendant U.S. RUBBER COMPANY (UNIROYAL), was and
still is a duly organized domestic corporation doing business in the State of New York.
23. Defendant UNION CARBIDE CORPORATION, was and still is a
duly organized domestic corporation doing business in the State of New York.
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AS AND FOR A FIRST CAUSE OF ACTION
AGAINST ALL DEFENDANTS
24. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained hereinabove in paragraphs "1" through "23" inclusive with the same force
and effect as if hereinafter set forth at length.
25. Plaintiff continuously worked with and was exposed to the
asbestos and asbestos-containing products and materials mined, manufactured, processed,
imported, converted, compounded, installed, or sold by the defendants. During the course of his
employment, plaintiff was exposed to the defendants' asbestos and asbestos containing materials
to which exposure directly and proximately caused him to develop an asbestos related disease.
26. Upon information and belief, the defendants mined, processed,
manufactured, designed, fabricated, fashioned, packaged, distributed, sold and/or delivered
various asbestos-containing products and materials and/or asbestos containing equipment to
which plaintiff was exposed during the period of time he was employed.
27. At all times pertinent hereto the defendants acted through their
duly authorized agents, servants, and employees, who were then and there acting in the course of
and scope of their employment and in furtherance of the business of said defendants.
28. During the scope and course of plaintiff’s employment he was
necessarily and unavoidably exposed to and did inhale and ingest dust and/or asbestos fibers
emanating from the asbestos and asbestos-containing products and/or equipment of the
defendants.
29. As a proximate result of the exposure to the asbestos and asbestos
containing products and/or equipment of these defendants, and the unavoidable and necessary
inhalation of said asbestos, plaintiff developed an asbestos related disease.
30. At all relevant times, the defendants knew or should have known
that the asbestos and asbestos-containing products and materials which they were providing were
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inherently dangerous beyond the expectations of the ordinary user or handler who would come
into contact with these products.
31. The defendants negligently failed to provide any or adequate and
proper warnings as to the dangers of the use of said products and materials to those persons
using, handling, or coming into contact therewith.
32. The defendants negligently failed to warn and failed to provide
adequate instructions of any potentially safer handling methods which should have been utilized
by users, handlers, or other persons who were reasonably and foreseeably known to come into
contact with the asbestos-containing products and/or equipment and materials.
33. The defendants negligently failed to investigate and/or test for the
hazards of asbestos products and materials.
34. To the extent that some defendants may have inquired as to the
hazards of said materials, the defendants negligently failed to convey whatever knowledge of
dangers, health hazards, or safety precautions they may have had to the users and consumers of
their asbestos-containing products.
35. The defendants negligently failed to develop, make available
and/or provide nonhazardous substitutes which could have been used for the same purpose as
their asbestos-containing products and/or equipment.
36. The defendants negligently failed to design asbestos-containing
products and/or equipment in such a fashion as to prohibit or minimize the release of airborne,
inhalable and ingestible asbestos dust and/or fibers.
37. As a direct result of working with or near the asbestos materials
supplied by the defendants with the consequent unavoidable and necessary inhalation and
ingestion of said asbestos fibers, plaintiff developed an asbestos related disease and as a result
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has been disabled. Plaintiff has suffered and endured great pain and mental anguish and suffered
a loss of enjoyment of his life.
38. The asbestos related disease of the plaintiff was proximately
caused by the defendants' negligent actions in that, inter alia, they negligently designed,
processed, manufactured, packaged, distributed, delivered and/or installed the asbestos-
containing products to which the plaintiff was exposed, all of which evidenced a callous,
reckless, wanton, oppressive, malicious, willful, depraved indifference to the health, safety and
welfare of the rights of others and more particularly the rights of the plaintiff, all of which
defendants had due and timely notice.
39. Defendants negligently failed to render warnings, advise, give
instructions and/or information to plaintiff so that he may have made an adequate and informed
judgment as to the use of said products and were otherwise negligent.
40. The defendants individually and as a group since the early 1900's
have possessed medical and scientific data which clearly indicates that their asbestos-containing
products are hazardous to health; and prompted by pecuniary motives, the defendants
individually and collectively ignored and failed to act upon said medical and scientific data and
conspired to deprive the public and particularly the users including plaintiff of said medical and
scientific data and therefore deprived the public at large and the plaintiff in particular, of the
opportunity of free choice as to whether or not to expose himself to the asbestos and asbestos-
containing products of said defendants; and further willfully, intentionally and wantonly failed to
warn plaintiff of the serious bodily harm which would result from the inhalation of their asbestos
fibers and the dust from their asbestos products.
41. The defendants utter failure to use reasonable care under all the
circumstances is the proximate cause of plaintiff's asbestos related disease.
42. As a result of the foregoing plaintiff was seriously injured.
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43. By reason of the foregoing, said plaintiff(s) has been damaged as
against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in
compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages.
AS AND FOR A SECOND CAUSE OF ACTION
AGAINST ALL DEFENDANTS
44. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" through "43", with the same force and effect as if
hereinafter set forth at length.
45. The defendants expressly and impliedly warranted that said
asbestos and asbestos-containing materials were of good and merchantable quality and fit for
intended use.
46. The implied/express warranties made by the defendants that their
asbestos and asbestos-containing materials were of good and merchantable quality and fit for
their particular use were breached in that certain harmful, poisonous and deleterious matter was
given off into the atmosphere where plaintiff carried out his duties working with and around
asbestos and asbestos-containing materials.
47. As a direct and/or proximate cause of the breach of the
implied/express warranties of good and merchantable quality and fitness for the particular use,
plaintiff developed an asbestos related disease and was caused to endure great pain and suffering.
48. Plaintiff was seriously injured.
49. By reason of the foregoing, plaintiff(s) has been damaged as
against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in
compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages.
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AS AND FOR A THIRD CAUSE OF ACTION
AGAINST ALL DEFENDANTS
50. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" through "49", with the same force and effect as if
hereinafter set forth at length.
51. At all relevant times, defendants, as part of their business,
manufactured, designed, supplied, developed, fashioned, packaged, distributed, delivered,
installed, sold, and/or otherwise placed asbestos and asbestos products and/or equipment and
materials into the stream of commerce in a defective, unsafe and inherently dangerous condition
and the products and materials were expected to and did reach users, handlers and persons
coming into contact with the said products and materials without substantial change in the
condition in which they were sold.
52. The asbestos-containing products and/or equipment sold by the
defendants did not contain a warning and/or information concerning the dangers to persons
using, handling or coming into contact therewith.
53. The asbestos-containing products and/or equipment sold by the
defendants did not contain adequate and/or correct warnings and instructions of safety
precautions to be observed by users, handlers, and persons who would reasonably and
foreseeably come into contact with said products and/or equipment.
54. That at all times herein, the products and/or equipment being used
herein were being employed for the purposes and in the manner normally intended and the
defects of the said products were not discoverable by the plaintiff by the exercise of reasonable
care, nor were the dangers of said products perceivable on the part of the plaintiff and the
plaintiff would not have otherwise averted his injury by the exercise of reasonable care.
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55. Said asbestos and asbestos-containing materials were defective and
dangerous at the time they were sold as the products and/or equipment contained a latent defect
and were harmful, poisonous and deleterious when introduced into the atmosphere where the
plaintiff carried on his work duties.
56. The defendants selling their asbestos and asbestos-containing
materials in a defective and dangerous condition to the users thereof, such as the plaintiff, are
strictly liable to the plaintiff for any illness resulting from said defective products.
57. As a direct and proximate result of the sale by the defendants to
plaintiff's employers, and/or other contractors, of said defective and unreasonably dangerous
products and/or equipment the plaintiff sustained serious and permanent injuries and suffered a
loss of enjoyment of his life.
58. Plaintiff was seriously injured.
59. That by reason of the foregoing, plaintiff(s) has been damaged as
against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in
compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages.
AS AND FOR A FOURTH CAUSE OF ACTION
AGAINST ALL OTHER DEFENDANTS
60. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" through "59" and inclusive with the same force and effect
as if hereinafter set forth at length.
61. Defendants, collectively and individually manufactured, designed,
selected, assembled, inspected, tested, maintained for sale, marketed, distributed, installed, sold,
supplied, delivered and promoted asbestos and asbestos-containing products which were
generically similar and fungible in nature; and placed such products into the stream of interstate
commerce.
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62. Plaintiff, through no fault of his own, may not be able to identify
all the asbestos-containing products or their manufacturers, marketers, sellers, distributors, or
promoters due to the generic similarity and fungible nature of such products as produced by
these defendants.
63. As a direct and proximate result of the defendants' activities
plaintiff was exposed to asbestos-containing products and sustained injuries and damage as
described above.
64. By reason of the abovementioned, defendants are jointly and
severally liable to the plaintiff for the injuries and damages sustained by him as described above
by virtue of industry-wide or enterprise liability.
65. In the alternative, defendants herein represent a substantial share of
the asbestos-containing product market within the area in which plaintiff was employed.
66. Defendants manufactured, designed, selected, assembled,
marketed, distributed, sold, supplied, delivered and promoted asbestos-containing products of the
kind and nature to which plaintiff was exposed during the period of his employment.
67. Independent of the above, defendants are also jointly and severally
liable to plaintiff, as the limitations of liability articulated in New York CPLR section 1601 do
not apply to the plaintiff's cause of action by operation of the exceptions set forth in New York
CPLR section 1602, which state that the limitations shall:
(7) Not apply to any person held liable for causing claimant's
injury by having acted with reckless disregard for the safety
of others.
(8) Not apply to any person held liable by reason of the
applicability of article ten of the labor law.
(10) Not apply to any person held liable in a product liability
action where the manufacturer of the product is not a party
to the action and the claimant establishes by a
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preponderance of the evidence that jurisdiction over the
manufacturer could not with due diligence be obtained and
that if the manufacturer were a party to the action, liability
for claimant's injury would have been imposed upon said
manufacturer by reason of the doctrine of strict liability, to
the extent of the equitable share of such manufacturer.
(11) Not apply to any parties found to have acted knowingly or
intentionally, and in concert, to cause the acts or failures
upon which liability is based; provided, however, that
nothing in this subdivision shall be construed to create,
impair, alter, limit, modify, enlarge, abrogate, or restrict
any theory of liability upon which said parties may be held
liable to the claimant.
68. Therefore, defendants are jointly and severally liable to the
plaintiff for the injuries and damages sustained by him which were directly and proximately
caused by plaintiff's exposure to asbestos-containing products and promoted by the defendants
based on the several defendants pro rata market share within the market described herein.
69. Plaintiff was seriously injured.
70. By reason of the foregoing, plaintiff(s) has been damaged as
against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in
compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages.
AS AND FOR A FIFTH CAUSE OF ACTION
AS AGAINST ALL DEFENDANTS
71. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained in paragraphs “1" through “ 70" with the same force and effect as if
hereinafter set forth at length.
72. Defendants, their subsidiaries, agents and/or servants were/are
owners, possessors, lessors, lessees, operators, controllers, managers, supervisors, general
contractors, subcontractors, architects, engineers or were otherwise responsible for the
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maintenance, control and/or safety at the premises on which plaintiff was lawfully frequenting
and exposed to asbestos.
73. Defendants, their subsidiaries, agents, and/or servants had a legal
duty to maintain and keep those premises in a safe and proper condition.
74. At all times relevant hereto, plaintiff was lawfully frequenting the
premises on which plaintiff was exposed to asbestos.
75. At all times relevant hereto, plaintiff's presence on the premises on
which plaintiff was exposed to asbestos was known or knowable to the defendants.
76. Defendants, their subsidiaries, agents, and/or servants negligently
created, caused and/or permitted to exist, an unsafe, hazardous and/or dangerous condition to
exist by specifying, using and/or permitting the presence of asbestos and/or asbestos containing
products, equipment and/or fixtures at the premises where the plaintiff was exposed to asbestos.
77. Defendants, their subsidiaries, agents, and/or servants negligently
permitted a defective, hazardous and/or dangerous condition to remain uncorrected and/or
unchanged at the premises at which the plaintiff was present and exposed to asbestos.
78. Defendants, their subsidiaries, agents, and/or servants knew, or
should have known, of the existence of the unsafe, hazardous and/or dangerous condition and
failed to correct this dangerous condition.
79. Defendants, their subsidiaries, agents, and/or servants knew, or
should have known, of the existence of the unsafe, hazardous and/or dangerous condition and
failed to warn the plaintiff of the existence of the dangerous condition and/or provide the
plaintiff the means to protect himself from this dangerous condition.
80. Defendants, their subsidiaries, agents, and/or servants violated the
common law duty to maintain a safe work place for individuals, such as plaintiff, who were
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working in, lawfully frequenting and exposed to asbestos on premises owned, maintained and/or
controlled by them.
81. Defendants, their subsidiaries, agents, and/or servants violated
New York Labor Law sections 200 et seq., including, but not limited to, section 200 and 241 (6)
and the New York Industrial Code 12 NYCRR section 12 and 23 by their failure to provide a
safe workplace, including, but not limited to, failing to make reasonable inspections to detect
dangerous conditions and hidden defects and to warn of dangers of which they knew or should
have known, and by their failure to provide reasonable and adequate protection for individuals,
such as plaintiff, who was lawfully at a construction site owned, maintained and/or controlled by
them. Inter alia:
(a) Defendants, their subsidiaries, agents and/or servants violated the New
York State Industrial Code section 12, subsection 1.4, which states that:
(a) All operations or processes which produce air contaminants shall
be so conducted that the generation, release or dissemination of
such contaminants is kept at the lowest practicable level in
compliance with this Part (rule) using proper control or protective
procedures and equipment.
(b) (1) Every employer shall effect compliance with the
provisions of this Part (rule) relating to the prevention and removal
of air contaminants, the storage and use of flammable liquids and
the provision, installation, operation and maintenance of control or
protective equipment.
(2) Every employer shall instruct his employees as to
the hazards of their work, the use of the control or
protective equipment and their responsibility for
complying with the provisions of this Part (rule).
(3) No employer shall suffer or permit an employee to
work in a room in which their exist dangerous air
contaminants in a work atmosphere.
(4) No employer shall suffer or permit dangerous air
contaminants to accumulate or remain in any place
or area subject to the provisions of this Part (rule).
(b) Defendants, their subsidiaries, agents, and/or servants violated New York
State Industrial Code section 12, subsection 1.5, which states that:
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(a) (1) Personal respiratory protective equipment shall not
be used in lieu of other control methods, except for
protection of employees in emergencies and in the
repair, maintenance or adjustment or equipment or
processes, or upon specific approval by the board
(c) Defendants, their subsidiaries, agents, and/or servants violated New York
State Industrial Code section 12, subsection 1.6 (formerly section 12.9),
which states that:
Preview
FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------------------X Index No.: HARRY J. HAMPSON, Date Filed: Plaintiff(s), Plaintiff Designates SUFFOLK -against- County as the Place of Trial AMCHEM PRODUCTS, INC., The Basis of Venue is Defendants’ Place of Business n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., ARVINMERITOR, INC., SUMMONS Individually and as successor-in-interest to ROCKWELL AUTOMOTIVE, CBS CORPORATION, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION, CUMMINS, INC., DCo LLC f/k/a DANA COMPANIES, LLC, EATON CORPORATION, Individually and as successor -in-interest to CUTLER-HAMMER, INC., GENERAL ELECTRIC COMPANY, GRIZZLY FRICTION PRODUCTS, a division of NUTURN CORPORATION, HENNESSY INDUSTRIES, INC. Individually and as successor-in-interest to AMMCO, HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX, MACK TRUCKS, INC., McCORD CORPORATION, MORSE TEC LLC, f/k/a BORG WARNER MORSE TEC LLC and Successor-by-Merger to BORG-WARNER CORPORATION, NAVISTAR, INC., a/k/a INTERNATIONAL TRUCK & ENGINE CORP. f/k/a INTERNATIONAL HARVESTER, INC., PACCAR, INC., Individually and through its division, PETERBILT MOTORS CO., PFIZER, INC. (PFIZER), PNEUMO ABEX LLC, successor in interest to ABEX CORPORATION (ABEX), STANDARD MOTOR PRODUCTS, INC., U.S. RUBBER COMPANY (UNIROYAL), 1 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 UNION CARBIDE CORPORATION, Defendants. -----------------------------------------------------------------------------X To the above named Defendant(s) You are hereby summoned to answer the verified complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated, April 07, 2021 New York, New York WEITZ & LUXENBERG, P.C. Defendant's address: Attorney(s) for Plaintiff Post Office Address SEE ATTACHED DEFENDANTS RIDER 700 Broadway New York, New York 10003 (212) 558-5500 2 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 DEFENDANTS' RIDER AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC. 99 Washington Ave Albany, NY 12207 ARVINMERITOR, INC., Individually and as successor-in-interest to ROCKWELL AUTOMOTIVE 2135 W Maple Road Troy, MI 48084 CBS CORPORATION, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION Asbestos Litigation Support Manager ECKERT SEAMANS CHERIN & MELLOTT, LLC Case Management & Technology Center USX Towers 600 Grant Street Pittsburgh, PA 15219 CUMMINS, INC. Corporation Service Company 2711 Centerville Road Wilmington, DE 19808 DCo LLC f/k/a DANA COMPANIES, LLC 900 West South Boundary Street Bldg 8A Perrysburg, OH 43551 and 4400 Easton Commons, Suite 125 Columbus, OH 43219 EATON CORPORATION, Individually and as successor -in-interest to CUTLER-HAMMER, INC. CT Corporation System 111 8th Avenue New York, NY 10011 3 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 GENERAL ELECTRIC COMPANY Electric Insurance Company 75 Sam Fonzo Drive Beverly, MA 01915 GRIZZLY FRICTION PRODUCTS, a division of NUTURN CORPORATION 2400 Maremont Parkway London, TN 37774 HENNESSY INDUSTRIES, INC. Individually and as successor-in-interest to AMMCO Corporation Trust Company 1209 Orange St Wilmington, DE 19801 HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX 100 Charles Ewing Blvd Suite 160 Ewing, NJ 08628 MACK TRUCKS, INC. CT Corporation Systems 28 Liberty St, 42nd Fl New York, NY 10005 McCORD CORPORATION 40600 Ann Arbor Road East Suite 201 Plymouth, MI 48170-4675 MORSE TEC LLC, f/k/a BORG WARNER MORSE TEC LLC and Successor-by-Merger to BORG-WARNER CORPORATION CT Corporation 1209 Orange Street Wilmington, DE 19801 NAVISTAR, INC., a/k/a INTERNATIONAL TRUCK & ENGINE CORP. f/k/a INTERNATIONAL HARVESTER, INC. CSC 80 State street Albany, NY 12207 4 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 PACCAR, INC., Individually and through its division, PETERBILT MOTORS CO. The Prentice Hall Corporation System 211 East 7th Street, Suite 620 Austin, TX 78701 PFIZER, INC. (PFIZER) CT Corporation Systems 28 Liberty st, 42nd Fl New York, NY 10005 PNEUMO ABEX LLC, successor in interest to ABEX CORPORATION (ABEX) 80 State Street Albany, NY 12207 STANDARD MOTOR PRODUCTS, INC. 37-18 Northern Blvd. Long Island City, NY 11101 U.S. RUBBER COMPANY (UNIROYAL) Greenfield, Stein & Senior (Agent for Service of Process) 600 Third Avenue, 11th Floor New York, NY 10016-1903 UNION CARBIDE CORPORATION CT Corporation Systems 28 Liberty st, 42nd Fl New York, NY 10005 5 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------------------------------------X Index No: HARRY J. HAMPSON, Date Filed: Plaintiff(s), -against- VERIFIED COMPLAINT AMCHEM PRODUCTS, INC., PLAINTIFF DEMANDS n/k/a RHONE POULENC AG COMPANY, TRIAL BY JURY n/k/a BAYER CROPSCIENCE INC., ARVINMERITOR, INC., Individually and as successor-in-interest to ROCKWELL AUTOMOTIVE, CBS CORPORATION, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION, CUMMINS, INC., DCo LLC f/k/a DANA COMPANIES, LLC, EATON CORPORATION, Individually and as successor -in-interest to CUTLER-HAMMER, INC., GENERAL ELECTRIC COMPANY, GRIZZLY FRICTION PRODUCTS, a division of NUTURN CORPORATION, HENNESSY INDUSTRIES, INC. Individually and as successor-in-interest to AMMCO, HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX, MACK TRUCKS, INC., McCORD CORPORATION, MORSE TEC LLC, f/k/a BORG WARNER MORSE TEC LLC and Successor-by-Merger to BORG-WARNER CORPORATION, NAVISTAR, INC., a/k/a INTERNATIONAL TRUCK & ENGINE CORP. f/k/a INTERNATIONAL HARVESTER, INC., PACCAR, INC., Individually and through its division, PETERBILT MOTORS CO., PFIZER, INC. (PFIZER), PNEUMO ABEX LLC, successor in interest to ABEX CORPORATION (ABEX), STANDARD MOTOR PRODUCTS, INC., U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, Defendants. 6 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 ------------------------------------------------------------------------------X Plaintiff(s), by his/her attorneys, upon information and belief, at all times hereinafter mentioned, allege as follows: 1. Plaintiff(s), HARRY J. HAMPSON, is a resident and citizen of the State of New York; . 2. The term "Defendants" shall apply to all named business and/or corporate entities and/or such company's predecessors and/or successors in interest more fully described below. 3. The Defendants named herein have done business in this State and/or have conducted and/or transacted business in this state, have committed one or more tortious acts within this State and/or have otherwise performed acts within and/or without this State giving rise to injuries and losses within this State, which acts subject each Defendant to the jurisdiction of the Courts of this State. 4. Defendant AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., was and still is a duly organized domestic corporation doing business in the State of New York. 5. Defendant ARVINMERITOR, INC., Individually and as successor-in-interest to ROCKWELL AUTOMOTIVE, was and still is a duly organized domestic corporation doing business in the State of New York. 7 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 6. Defendant CBS CORPORATION, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York. 7. Defendant CUMMINS, INC., was and still is a duly organized domestic corporation doing business in the State of New York. 8. Defendant DCo LLC f/k/a DANA COMPANIES, LLC, was and still is a duly organized domestic corporation doing business in the State of New York. 9. Defendant EATON CORPORATION, Individually and as successor -in-interest to CUTLER-HAMMER, INC., was and still is a duly organized domestic corporation doing business in the State of New York. 10. Defendant GENERAL ELECTRIC COMPANY, was and still is a duly organized domestic corporation doing business in the State of New York. 11. Defendant GRIZZLY FRICTION PRODUCTS, a division of NUTURN CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York. 12. Defendant HENNESSY INDUSTRIES, INC. Individually and as successor-in-interest to AMMCO, was and still is a duly organized domestic corporation doing business in the State of New York. 13. Defendant HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX, was and still is a duly organized domestic corporation doing business in the State of New York. 14. Defendant MACK TRUCKS, INC., was and still is a duly organized domestic corporation doing business in the State of New York. 15. Defendant McCORD CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York. 8 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 16. Defendant MORSE TEC LLC, f/k/a BORG WARNER MORSE TEC LLC and Successor-by-Merger to BORG-WARNER CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York. 17. Defendant NAVISTAR, INC., a/k/a INTERNATIONAL TRUCK & ENGINE CORP. f/k/a INTERNATIONAL HARVESTER, INC., was and still is a duly organized domestic corporation doing business in the State of New York. 18. Defendant PACCAR, INC., Individually and through its division, PETERBILT MOTORS CO., was and still is a duly organized domestic corporation doing business in the State of New York. 19. Defendant PFIZER, INC. (PFIZER), was and still is a duly organized domestic corporation doing business in the State of New York. 20. Defendant PNEUMO ABEX LLC, successor in interest to ABEX CORPORATION (ABEX), was and still is a duly organized domestic corporation doing business in the State of New York. 21. Defendant STANDARD MOTOR PRODUCTS, INC., was and still is a duly organized domestic corporation doing business in the State of New York. 22. Defendant U.S. RUBBER COMPANY (UNIROYAL), was and still is a duly organized domestic corporation doing business in the State of New York. 23. Defendant UNION CARBIDE CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York. 9 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS 24. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained hereinabove in paragraphs "1" through "23" inclusive with the same force and effect as if hereinafter set forth at length. 25. Plaintiff continuously worked with and was exposed to the asbestos and asbestos-containing products and materials mined, manufactured, processed, imported, converted, compounded, installed, or sold by the defendants. During the course of his employment, plaintiff was exposed to the defendants' asbestos and asbestos containing materials to which exposure directly and proximately caused him to develop an asbestos related disease. 26. Upon information and belief, the defendants mined, processed, manufactured, designed, fabricated, fashioned, packaged, distributed, sold and/or delivered various asbestos-containing products and materials and/or asbestos containing equipment to which plaintiff was exposed during the period of time he was employed. 27. At all times pertinent hereto the defendants acted through their duly authorized agents, servants, and employees, who were then and there acting in the course of and scope of their employment and in furtherance of the business of said defendants. 28. During the scope and course of plaintiff’s employment he was necessarily and unavoidably exposed to and did inhale and ingest dust and/or asbestos fibers emanating from the asbestos and asbestos-containing products and/or equipment of the defendants. 29. As a proximate result of the exposure to the asbestos and asbestos containing products and/or equipment of these defendants, and the unavoidable and necessary inhalation of said asbestos, plaintiff developed an asbestos related disease. 30. At all relevant times, the defendants knew or should have known that the asbestos and asbestos-containing products and materials which they were providing were 10 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 inherently dangerous beyond the expectations of the ordinary user or handler who would come into contact with these products. 31. The defendants negligently failed to provide any or adequate and proper warnings as to the dangers of the use of said products and materials to those persons using, handling, or coming into contact therewith. 32. The defendants negligently failed to warn and failed to provide adequate instructions of any potentially safer handling methods which should have been utilized by users, handlers, or other persons who were reasonably and foreseeably known to come into contact with the asbestos-containing products and/or equipment and materials. 33. The defendants negligently failed to investigate and/or test for the hazards of asbestos products and materials. 34. To the extent that some defendants may have inquired as to the hazards of said materials, the defendants negligently failed to convey whatever knowledge of dangers, health hazards, or safety precautions they may have had to the users and consumers of their asbestos-containing products. 35. The defendants negligently failed to develop, make available and/or provide nonhazardous substitutes which could have been used for the same purpose as their asbestos-containing products and/or equipment. 36. The defendants negligently failed to design asbestos-containing products and/or equipment in such a fashion as to prohibit or minimize the release of airborne, inhalable and ingestible asbestos dust and/or fibers. 37. As a direct result of working with or near the asbestos materials supplied by the defendants with the consequent unavoidable and necessary inhalation and ingestion of said asbestos fibers, plaintiff developed an asbestos related disease and as a result 11 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 has been disabled. Plaintiff has suffered and endured great pain and mental anguish and suffered a loss of enjoyment of his life. 38. The asbestos related disease of the plaintiff was proximately caused by the defendants' negligent actions in that, inter alia, they negligently designed, processed, manufactured, packaged, distributed, delivered and/or installed the asbestos- containing products to which the plaintiff was exposed, all of which evidenced a callous, reckless, wanton, oppressive, malicious, willful, depraved indifference to the health, safety and welfare of the rights of others and more particularly the rights of the plaintiff, all of which defendants had due and timely notice. 39. Defendants negligently failed to render warnings, advise, give instructions and/or information to plaintiff so that he may have made an adequate and informed judgment as to the use of said products and were otherwise negligent. 40. The defendants individually and as a group since the early 1900's have possessed medical and scientific data which clearly indicates that their asbestos-containing products are hazardous to health; and prompted by pecuniary motives, the defendants individually and collectively ignored and failed to act upon said medical and scientific data and conspired to deprive the public and particularly the users including plaintiff of said medical and scientific data and therefore deprived the public at large and the plaintiff in particular, of the opportunity of free choice as to whether or not to expose himself to the asbestos and asbestos- containing products of said defendants; and further willfully, intentionally and wantonly failed to warn plaintiff of the serious bodily harm which would result from the inhalation of their asbestos fibers and the dust from their asbestos products. 41. The defendants utter failure to use reasonable care under all the circumstances is the proximate cause of plaintiff's asbestos related disease. 42. As a result of the foregoing plaintiff was seriously injured. 12 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 43. By reason of the foregoing, said plaintiff(s) has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS 44. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "43", with the same force and effect as if hereinafter set forth at length. 45. The defendants expressly and impliedly warranted that said asbestos and asbestos-containing materials were of good and merchantable quality and fit for intended use. 46. The implied/express warranties made by the defendants that their asbestos and asbestos-containing materials were of good and merchantable quality and fit for their particular use were breached in that certain harmful, poisonous and deleterious matter was given off into the atmosphere where plaintiff carried out his duties working with and around asbestos and asbestos-containing materials. 47. As a direct and/or proximate cause of the breach of the implied/express warranties of good and merchantable quality and fitness for the particular use, plaintiff developed an asbestos related disease and was caused to endure great pain and suffering. 48. Plaintiff was seriously injured. 49. By reason of the foregoing, plaintiff(s) has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. 13 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS 50. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "49", with the same force and effect as if hereinafter set forth at length. 51. At all relevant times, defendants, as part of their business, manufactured, designed, supplied, developed, fashioned, packaged, distributed, delivered, installed, sold, and/or otherwise placed asbestos and asbestos products and/or equipment and materials into the stream of commerce in a defective, unsafe and inherently dangerous condition and the products and materials were expected to and did reach users, handlers and persons coming into contact with the said products and materials without substantial change in the condition in which they were sold. 52. The asbestos-containing products and/or equipment sold by the defendants did not contain a warning and/or information concerning the dangers to persons using, handling or coming into contact therewith. 53. The asbestos-containing products and/or equipment sold by the defendants did not contain adequate and/or correct warnings and instructions of safety precautions to be observed by users, handlers, and persons who would reasonably and foreseeably come into contact with said products and/or equipment. 54. That at all times herein, the products and/or equipment being used herein were being employed for the purposes and in the manner normally intended and the defects of the said products were not discoverable by the plaintiff by the exercise of reasonable care, nor were the dangers of said products perceivable on the part of the plaintiff and the plaintiff would not have otherwise averted his injury by the exercise of reasonable care. 14 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 55. Said asbestos and asbestos-containing materials were defective and dangerous at the time they were sold as the products and/or equipment contained a latent defect and were harmful, poisonous and deleterious when introduced into the atmosphere where the plaintiff carried on his work duties. 56. The defendants selling their asbestos and asbestos-containing materials in a defective and dangerous condition to the users thereof, such as the plaintiff, are strictly liable to the plaintiff for any illness resulting from said defective products. 57. As a direct and proximate result of the sale by the defendants to plaintiff's employers, and/or other contractors, of said defective and unreasonably dangerous products and/or equipment the plaintiff sustained serious and permanent injuries and suffered a loss of enjoyment of his life. 58. Plaintiff was seriously injured. 59. That by reason of the foregoing, plaintiff(s) has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST ALL OTHER DEFENDANTS 60. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "59" and inclusive with the same force and effect as if hereinafter set forth at length. 61. Defendants, collectively and individually manufactured, designed, selected, assembled, inspected, tested, maintained for sale, marketed, distributed, installed, sold, supplied, delivered and promoted asbestos and asbestos-containing products which were generically similar and fungible in nature; and placed such products into the stream of interstate commerce. 15 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 62. Plaintiff, through no fault of his own, may not be able to identify all the asbestos-containing products or their manufacturers, marketers, sellers, distributors, or promoters due to the generic similarity and fungible nature of such products as produced by these defendants. 63. As a direct and proximate result of the defendants' activities plaintiff was exposed to asbestos-containing products and sustained injuries and damage as described above. 64. By reason of the abovementioned, defendants are jointly and severally liable to the plaintiff for the injuries and damages sustained by him as described above by virtue of industry-wide or enterprise liability. 65. In the alternative, defendants herein represent a substantial share of the asbestos-containing product market within the area in which plaintiff was employed. 66. Defendants manufactured, designed, selected, assembled, marketed, distributed, sold, supplied, delivered and promoted asbestos-containing products of the kind and nature to which plaintiff was exposed during the period of his employment. 67. Independent of the above, defendants are also jointly and severally liable to plaintiff, as the limitations of liability articulated in New York CPLR section 1601 do not apply to the plaintiff's cause of action by operation of the exceptions set forth in New York CPLR section 1602, which state that the limitations shall: (7) Not apply to any person held liable for causing claimant's injury by having acted with reckless disregard for the safety of others. (8) Not apply to any person held liable by reason of the applicability of article ten of the labor law. (10) Not apply to any person held liable in a product liability action where the manufacturer of the product is not a party to the action and the claimant establishes by a 16 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 preponderance of the evidence that jurisdiction over the manufacturer could not with due diligence be obtained and that if the manufacturer were a party to the action, liability for claimant's injury would have been imposed upon said manufacturer by reason of the doctrine of strict liability, to the extent of the equitable share of such manufacturer. (11) Not apply to any parties found to have acted knowingly or intentionally, and in concert, to cause the acts or failures upon which liability is based; provided, however, that nothing in this subdivision shall be construed to create, impair, alter, limit, modify, enlarge, abrogate, or restrict any theory of liability upon which said parties may be held liable to the claimant. 68. Therefore, defendants are jointly and severally liable to the plaintiff for the injuries and damages sustained by him which were directly and proximately caused by plaintiff's exposure to asbestos-containing products and promoted by the defendants based on the several defendants pro rata market share within the market described herein. 69. Plaintiff was seriously injured. 70. By reason of the foregoing, plaintiff(s) has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A FIFTH CAUSE OF ACTION AS AGAINST ALL DEFENDANTS 71. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “ 70" with the same force and effect as if hereinafter set forth at length. 72. Defendants, their subsidiaries, agents and/or servants were/are owners, possessors, lessors, lessees, operators, controllers, managers, supervisors, general contractors, subcontractors, architects, engineers or were otherwise responsible for the 17 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 maintenance, control and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 73. Defendants, their subsidiaries, agents, and/or servants had a legal duty to maintain and keep those premises in a safe and proper condition. 74. At all times relevant hereto, plaintiff was lawfully frequenting the premises on which plaintiff was exposed to asbestos. 75. At all times relevant hereto, plaintiff's presence on the premises on which plaintiff was exposed to asbestos was known or knowable to the defendants. 76. Defendants, their subsidiaries, agents, and/or servants negligently created, caused and/or permitted to exist, an unsafe, hazardous and/or dangerous condition to exist by specifying, using and/or permitting the presence of asbestos and/or asbestos containing products, equipment and/or fixtures at the premises where the plaintiff was exposed to asbestos. 77. Defendants, their subsidiaries, agents, and/or servants negligently permitted a defective, hazardous and/or dangerous condition to remain uncorrected and/or unchanged at the premises at which the plaintiff was present and exposed to asbestos. 78. Defendants, their subsidiaries, agents, and/or servants knew, or should have known, of the existence of the unsafe, hazardous and/or dangerous condition and failed to correct this dangerous condition. 79. Defendants, their subsidiaries, agents, and/or servants knew, or should have known, of the existence of the unsafe, hazardous and/or dangerous condition and failed to warn the plaintiff of the existence of the dangerous condition and/or provide the plaintiff the means to protect himself from this dangerous condition. 80. Defendants, their subsidiaries, agents, and/or servants violated the common law duty to maintain a safe work place for individuals, such as plaintiff, who were 18 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 working in, lawfully frequenting and exposed to asbestos on premises owned, maintained and/or controlled by them. 81. Defendants, their subsidiaries, agents, and/or servants violated New York Labor Law sections 200 et seq., including, but not limited to, section 200 and 241 (6) and the New York Industrial Code 12 NYCRR section 12 and 23 by their failure to provide a safe workplace, including, but not limited to, failing to make reasonable inspections to detect dangerous conditions and hidden defects and to warn of dangers of which they knew or should have known, and by their failure to provide reasonable and adequate protection for individuals, such as plaintiff, who was lawfully at a construction site owned, maintained and/or controlled by them. Inter alia: (a) Defendants, their subsidiaries, agents and/or servants violated the New York State Industrial Code section 12, subsection 1.4, which states that: (a) All operations or processes which produce air contaminants shall be so conducted that the generation, release or dissemination of such contaminants is kept at the lowest practicable level in compliance with this Part (rule) using proper control or protective procedures and equipment. (b) (1) Every employer shall effect compliance with the provisions of this Part (rule) relating to the prevention and removal of air contaminants, the storage and use of flammable liquids and the provision, installation, operation and maintenance of control or protective equipment. (2) Every employer shall instruct his employees as to the hazards of their work, the use of the control or protective equipment and their responsibility for complying with the provisions of this Part (rule). (3) No employer shall suffer or permit an employee to work in a room in which their exist dangerous air contaminants in a work atmosphere. (4) No employer shall suffer or permit dangerous air contaminants to accumulate or remain in any place or area subject to the provisions of this Part (rule). (b) Defendants, their subsidiaries, agents, and/or servants violated New York State Industrial Code section 12, subsection 1.5, which states that: 19 of 26 FILED: SUFFOLK COUNTY CLERK 04/07/2021 10:23 AM INDEX NO. 606219/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/07/2021 (a) (1) Personal respiratory protective equipment shall not be used in lieu of other control methods, except for protection of employees in emergencies and in the repair, maintenance or adjustment or equipment or processes, or upon specific approval by the board (c) Defendants, their subsidiaries, agents, and/or servants violated New York State Industrial Code section 12, subsection 1.6 (formerly section 12.9), which states that: