Preview
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-------------------------------------------------------------- X
HARRY J. HAMPSON, :
: Index No.: 606219-21
Plaintiff (s), :
: VERIFIED ANSWER
- against - :
:
AMCHEM PRODUCTS, INC., et al., :
:
:
Defendants. :
-------------------------------------------------------------- X
Defendant, Honeywell International Inc., f/k/a AlliedSignal Inc., as successor-in-interest
to the Bendix Corporation, hereinafter referred to as "Honeywell," by its attorneys, McDermott
Will & Emery LLP, answers the Verified Complaint, hereinafter referred to as "Complaint," of
the plaintiff, filed by Weitz & Luxenberg, P.C. and says:
AS TO GENERAL ALLEGATIONS
IN THE COMPLAINT
1. Honeywell denies knowledge and information to form a belief as to the truth of
the allegations contained in paragraph 1 of the Complaint, and the plaintiff is left to his proof
with respect thereto. Insofar as the allegations contained in paragraph 1 are directed to
Honeywell, they are denied.
2. Honeywell denies knowledge and information to form a belief as to the truth of
allegations contained in paragraph 2 of the Complaint with respect to defendants other than
Honeywell. Insofar as the allegations contained in paragraph 2 are directed to Honeywell, they
are denied.
3. Honeywell admits that it did conduct business in this state from time to time;
however, Honeywell denies that such business is in any way related to the allegations contained
in paragraph 3 of the Complaint.
-1-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
1 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
4. Honeywell denies knowledge and information to form a belief as to the truth of
allegations contained in paragraphs 4 through 12 and 14 through 23 of the Complaint with
respect to defendants other than Honeywell. Insofar as the allegations contained in paragraphs 4
through 12 and 14 through 23 of the Complaint are directed to Honeywell, they are denied.
5. Honeywell acknowledges that the information contained in paragraph 13 is true.
FIRST CAUSE OF ACTION
6. Honeywell repeats its answers to paragraphs 1 through 23 of the Complaint as if
set forth fully herein.
7. Honeywell denies knowledge and information to form a belief as to the truth of
the allegations contained in paragraphs 25 through 43 of the Complaint, and the plaintiff is
left to his proof with respect thereto. Insofar as the allegations contained in paragraphs 25
through 43 are directed to Honeywell, they are denied.
SECOND CAUSE OF ACTION
8. Honeywell repeats its answers to paragraphs 1 through 43 of the Complaint as if
set forth fully herein
9. Honeywell denies knowledge and information to form a belief as to the truth of
the allegations contained in paragraphs 45 through 49 of the Complaint, and the plaintiff is left
to his proof with respect thereto. Insofar as the allegations contained in paragraphs 45 through
49 of the Complaint are directed to Honeywell, they are denied.
THIRD CAUSE OF ACTION
10. Honeywell repeats its answers to paragraphs 1 through 49 of the Complaint as if
set forth fully herein
11. Honeywell denies knowledge and information to form a belief as to the truth of
the allegations contained in paragraphs 51 through 59 of the Complaint, and the plaintiff is
-2-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
2 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
left to his proof with respect thereto. Insofar as the allegations contained in paragraphs 51
through 59 of the Complaint are directed to Honeywell, they are denied.
FOURTH CAUSE OF ACTION
12. Honeywell repeats its answers to paragraphs 1 through 59 of the Complaint as if
set forth fully herein
13 Honeywell denies knowledge and information to form a belief as to the truth of
allegations contained in paragraphs 61 through 70 of the Complaint, including all subparts, with
respect to defendants other than Honeywell. Insofar as the allegations contained in paragraphs
61 through 70 of the Complaint, including all subparts, are directed to Honeywell, they are
denied.
FIFTH CAUSE OF ACTION
14. Honeywell repeats its answers to paragraphs 1 through 70 of the Complaint as if
set forth fully herein.
15. Honeywell denies knowledge and information to form a belief as to the truth of
the allegations contained in paragraphs 72 through 89, including all subparts of the Complaint,
and the plaintiff is left to his proof with respect thereto. Insofar as the allegations contained in
paragraphs 72 through 89, including all subparts of the Complaint are directed to Honeywell,
they are denied.
SIXTH CAUSE OF ACTION
16. Honeywell repeats its answers to paragraphs 1 through 89 of the Complaint as if
set forth fully herein.
17. Honeywell denies knowledge and information to form a belief as to the truth of
the allegations contained in paragraphs 91 and 92 of the Complaint, and the plaintiff is left to his
-3-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
3 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
proof with respect thereto. Insofar as the allegations contained in paragraphs 91 and 92 of the
Complaint are directed to Honeywell, they are denied.
FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state a cause of action.
SECOND AFFIRMATIVE DEFENSE
Plaintiff failed to properly serve Honeywell with the Summons and Complaint and the
Court lacks jurisdiction herein.
THIRD AFFIRMATIVE DEFENSE
This Court lacks personal jurisdiction over this answering Defendant.
FOURTH AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over the subject matter of this action.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred because the Complaint is defective as a matter of law.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the applicable Statute of Limitations.
SEVENTH AFFIRMATIVE DEFENSE
The delay of the plaintiff in commencing suit is inexcusable and has resulted in prejudice
to Honeywell, and the equitable doctrine of laches bars their claims.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff failed to bring the Complaint in the appropriate venue.
NINTH AFFIRMATIVE DEFENSE
Pursuant to General Obligations Law Section 15-108, Honeywell is entitled to set-off.
-4-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
4 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
TENTH AFFIRMATIVE DEFENSE
Any recovery by plaintiffs herein must be reduced by collateral source payments pursuant
to N.Y. Civ. Prac. L. & R. 4545.
ELEVENTH AFFIRMATIVE DEFENSE
If the answering Defendant is found liable, such liability is less than or equal to 50% of
the total liability of all persons who may be found liable, and therefore, this answering
Defendant’s liability shall be limited to its equitable share pursuant to N.Y. Civ. Prac. L. & R.
Section 1601.
TWELFTH AFFIRMATIVE DEFENSE
If the causes of action, based upon statutory liability as pleaded in the Complaint, are
based upon expressed or implied warranties and/or representations, then the alleged breaches
thereto, as against this answering Defendant, are legally insufficient by reason of their failure to
allege privity of contract between the plaintiff and this answering Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE
The answering Defendant gave, made or extended no warranties, whether express or
implied, upon which plaintiff had a right to rely.
FOURTEENTH AFFIRMATIVE DEFENSE
The answering Defendant breached no warranties, whether express or implied.
FIFTEENTH AFFIRMATIVE DEFENSE
The Statute of Limitations is a complete and total bar as to any and all warranties
allegedly presented or made in connection with the alleged sale, manufacture, distribution,
supply, testing, design, packaging or delivery of the asbestos product(s) to which plaintiff
allegedly came into contact.
-5-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
5 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
SIXTEENTH AFFIRMATIVE DEFENSE
If the causes of action based upon statutory liability are founded upon any oral warranties
or undertakings on the part of the answering Defendant upon which the plaintiff might rely, they
are inadmissible and unavailable pursuant to the provisions of the Statute of Frauds.
SEVENTEENTH AFFIRMATIVE DEFENSE
That insofar as the Complaint and each cause of action of each plaintiff considered
separately alleges a cause of action occurring on or after September 1, 1975 to recover damages
for personal injuries, the amount of damages recoverable thereon must be diminished by the
plaintiff’s comparative negligence, in the proportion which the culpable conduct attributable to
the plaintiff bears to the culpable conduct which caused the damages.
EIGHTEENTH AFFIRMATIVE DEFENSE
That insofar as the causes of action herein considered separately occurred before
September 1, 1975, such causes of action are barred by reason of the contributory negligence of
the plaintiff.
NINETEENTH AFFIRMATIVE DEFENSE
That plaintiff is barred from any recovery against this answering Defendant by the
doctrine of assumption of the risk.
TWENTIETH AFFIRMATIVE DEFENSE
That plaintiff contributed to his alleged illness, either in whole or part, by the use of other
substances, products, medications and/or drugs.
TWENTY-FIRST AFFIRMATIVE DEFENSE
That plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and
disabilities alleged in the Complaint.
-6-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
6 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
TWENTY-SECOND AFFIRMATIVE DEFENSE
In the event that plaintiff was employed by this answering Defendant, such plaintiff'’s
sole remedy is under the Workers’ Compensation Law and said plaintiff cannot recover from this
Defendant in this action.
TWENTY-THIRD AFFIRMATIVE DEFENSE
That the plaintiff’s employer(s) were sophisticated purchasers and/or users of the
products referred to in plaintiff's Complaint and upon whom devolved all responsibility for such
use.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
That the matters that are the subject of the plaintiff’s Complaint are attributable to third
parties over whom this answering Defendant had neither control nor right of control.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
That if plaintiff should prove that he sustained injuries and damages as alleged, such
injuries and damages resulted from acts or omissions on the part of third parties, including
plaintiff's employer(s), over whom this Defendant had neither control nor right of control and for
whose acts or omissions this answering Defendant is not liable.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
This answering Defendant denies the allegations of the plaintiff with respect to
negligence, statutory liability, strict liability, injury and damages, and to the extent that plaintiff
may be able to prove the same, they were the result of intervening and/or interceding acts of
superceding negligence or other conduct on the part of parties over which this Defendant has
neither control nor right of control.
-7-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
7 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
This answering Defendant reserves the right to amend its answer and to assert additional
cross claims and/or otherwise counterclaims as to any party named herein, who may have, is or
will be declared bankrupt or otherwise files a petition under the Bankruptcy Code, pursuant to
Article 16 of the N.Y. Civ. Prac. L. & R. and to the decision of Justice Helen E. Freedman,
presiding judge for the New York City Asbestos Litigation (October 28, 2002).
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and
indispensable parties.
TWENTY-NINTH AFFIRMATIVE DEFENSE
That during the periods of exposure alleged in the Complaint by the plaintiff, this
answering Defendant denies specifically that it mined, processed, manufactured, designed, sold,
delivered, supplied, developed, tested, fashioned, packaged, distributed and/or otherwise placed
in the stream of commerce a substantial and/or any percentage of the asbestos products to which
plaintiff allegedly was caused to come into contact and were allegedly caused to breathe, inhale
and/or digest, and which allegedly caused plaintiff’s injuries and resulting damages. In the event
it should be proved at the time of trial that all defendants are subject to market share liability,
then this Defendant’s share of such liability would be of such a de minimis amount as to make its
contribution for damages negligible, and this answering Defendant will be entitled to
contribution either in whole or part from the other answering Defendants.
THIRTIETH AFFIRMATIVE DEFENSE
That no enterprise liability lies against this answering Defendant herein.
-8-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
8 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
THIRTY-FIRST AFFIRMATIVE DEFENSE
That at all times during the conduct of the corporate operations, the agents, servants
and/or employees of this answering Defendant, utilized proper methods of manufacture of
products in conformity with the state of the art and the knowledge and research of the scientific
community. To the extent that this answering Defendant conformed to the scientific knowledge
and research data available throughout the industry in which it was engaged, and the scientific
community, this Defendant has fulfilled its obligations, if any, herein, and plaintiff's’ claims
should be barred, in whole or part.
THIRTY-SECOND AFFIRMATIVE DEFENSE
That this answering Defendant conformed to the scientific knowledge and data available
in the industry in which it was engaged, and fulfilled its obligations, if any, and its activities and
undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or
wantonness, and plaintiff may not recover herein any exemplary or punitive damages against this
Defendant.
THIRTY-THIRD AFFIRMATIVE DEFENSE
That insofar as plaintiff s allege as against this answering Defendant, any willful and
wanton misconduct, and that this Defendant allegedly knowingly and intentionally sold a product
or products that it knew to be unreasonably dangerous, all of which this Defendant denies, any
such cause of action or causes of action accrued more than one year prior to the commencement
of this lawsuit and are time-barred.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
That at all times material hereto, the state of the medical and industrial art was such that
there was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently
-9-
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
9 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
dangerous, or hazardous character or nature of products containing asbestos when used in the
manner and purpose described by the plaintiffs and, therefore, there was no duty for this
answering Defendant to know of any such character or nature or to warn plaintiffs or others
similarly situated.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
To the extent that this answering Defendant conformed to the scientific knowledge and
research data available throughout the industry and scientific community, Honeywell has
fulfilled its obligations, if any, herein, and plaintiffs’ claims should be barred, in whole or in part.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
That plaintiff was warned of the risk of exposure to use of asbestos-containing materials.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
That any exposure that plaintiff claims to this answering Defendant’s products or
equipment, which alleged exposure is denied, was so minimal as to be insufficient to establish a
reasonable degree of probability that said products or equipment caused the injuries, illnesses
and damages alleged by the plaintiff in the Complaint.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
That while denying the allegations of the plaintiff with respect to liability, to the extent
that the plaintiffs are able to prove negligence or other improper conduct in accordance with the
applicable standards of proof, the acts and/or omissions of this answering Defendant were not a
proximate cause of any injuries, illnesses and/or damages to plaintiff.
THIRTY-NINTH AFFIRMATIVE DEFENSE
That any claim against this answering Defendant is barred by reason of substantial
product change, alteration and/or modification.
- 10 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
10 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
FORTIETH AFFIRMATIVE DEFENSE
That plaintiff has failed to state a cause of action upon which relief may be granted,
inasmuch as plaintiffs are unable to identify the manufacturer(s) of the substance allegedly
causing injury, and relief granted would deprive this Defendant of its right to substantive and
procedural due process of law and equal protection under the law pursuant to the Fourteenth
Amendment of the Constitution of the United States.
FORTY-FIRST AFFIRMATIVE DEFENSE
That this answering Defendant denies that the asbestos-containing products alleged in
plaintiff’s Complaint are products within the meaning and scope of the Restatement of Torts,
Section 402A and as such, the Complaint fails to state a cause of action in strict liability.
FORTY-SECOND AFFIRMATIVE DEFENSE
That the plaintiff, his co-workers and employees misused, mistreated and misapplied the
product(s) designated as asbestos materials as alleged in the Complaint. That if the Court finds
after trial that any misuse, mistreatment and/or misapplication of the said product(s) caused
and/or contributed to the alleged injuries or damages to the plaintiff, then, in that event, this
answering Defendant prays that the amount of damages which might be recoverable shall be
diminished in the proportion which the misuse, abuse, mistreatment and/or misapplication
attributed to the plaintiff and/or their co-workers and/or employees bears to the conduct which
caused the alleged injuries or damages.
FORTY-THIRD AFFIRMATIVE DEFENSE
That the causes of action asserted herein by the plaintiff, who is unable to identify the
manufacturer of the alleged injury-causing product(s), fail to state a cause of action upon which
relief can be granted, in that plaintiff has asserted claims for relief which, if granted, would
- 11 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
11 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
constitute a taking of private property for public use, without just compensation. Such a taking
would contravene this answering Defendant’s constitutional rights as preserved for it by the
Fourteenth Amendment to the Constitution of the United States.
FORTY-FOURTH AFFIRMATIVE DEFENSE
That exposure to asbestos fibers attributable to product(s) allegedly processed,
manufactured, produced, constructed, designed, tested, fashioned, packaged, sold, distributed,
delivered, supplied, advertised or otherwise placed in the stream of commerce by this answering
Defendant, is so minimal so as to be insufficient to establish to a reasonable degree of probability
that said product(s) are capable of causing injury or damages and must be speculative as a matter
of law.
FORTY-FIFTH AFFIRMATIVE DEFENSE
That the plaintiff’s injuries were caused, either in whole or part, by the general condition,
quality and content of the air and/or environment in the New York metropolitan area.
FORTY-SIXTH AFFIRMATIVE DEFENSE
That if it should be proved at the time of trial that any of the answering Defendant’s
product(s) were furnished to plaintiff’s employer(s) and/or to the United States Government, and
that plaintiff came into contact with said product(s), which this Defendant specifically denies,
then any product(s) processed, manufactured, produced, constructed, designed, tested, fashioned,
packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream
of commerce by this Defendant which was or may have been furnished to plaintiff's employer(s)
and/or to the United States Government, and with which plaintiff alleges he came or may have
come into contact was processed, manufactured, produced, constructed, designed, tested,
fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in
- 12 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
12 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
the stream of commerce in strict conformity to the conditions specified, or to specifications
furnished by the plaintiff'-husband’s employer(s) and/or the United States Government.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
That to the extent that the causes pleaded by the plaintiff herein fail to accord with the
Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiff’s’
Complaint is barred.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
That to the extent that plaintiff relies on Section 4 of the New York Laws 1986, c. 682 as
grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and
deprive(s) the answering Defendant of its constitutional rights and is/are wholly void and
unenforceable.
FORTY-NINTH AFFIRMATIVE DEFENSE
That to the extent the plaintiff seeks punitive damages against this answering Defendant,
and rely on Section 4 of the New York Laws 1986, c.682 as grounds for reviving and
maintaining the action, such damages are improper and are not authorized by law since this
statute does not revive any claims for punitive damages, leaving such claims time-barred in their
entirety.
FIFTIETH AFFIRMATIVE DEFENSE
That these actions and the causes pleaded by the plaintiff herein are barred by virtue of
Article 1, Section 10 of the United States Constitution.
FIFTY-FIRST AFFIRMATIVE DEFENSE
That to the extent that plaintiff seekS punitive damages against the answering Defendant,
these damages are improper and unwarranted, not authorized by law, and are unconstitutional.
- 13 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
13 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
Subjecting this Defendant to multiple trials and the multiple imposition of punitive damages for a
single course of conduct is a violation of both substantive and procedural due process under the
Constitution of the United States and the Constitution of the State of New York.
FIFTY-THIRD AFFIRMATIVE DEFENSE
That plaintiff’s demand for punitive damages is barred by the proscription of the Eighth
Amendment to the United States Constitution, as applied to the States through the Fourteenth
Amendment and Article I, Section 5 of the New York State Constitution, prohibiting the
imposition of excessive fines.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
That plaintiff’s demand for punitive damages is barred by the “ex post facto” clause of
the United States Constitution.
FIFTY-FIFTH AFFIRMATIVE DEFENSE
That with respect to plaintiff’s claim of a duty owed to them, this answering Defendant
denies breaching any duty which it may have owed to the plaintiffs.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
That all defenses which have been and/or will be asserted by other Defendants in this
action are adopted and incorporated by reference as if fully set forth at length herein as defenses
to plaintiff’s Complaint by this answering Defendant.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
This answering Defendant reserves the right to amend its answer to assert additional
defenses and/or to supplement, alter or change this answer upon discovery of the specific facts
upon which plaintiff bases his claims for relief, and upon completion of further discovery.
- 14 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
14 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
This answering Defendant reserves the right to move for a severance of the various
allegations in the plaintiff’s Complaint.
FIFTY-NINTH AFFIRMATIVE DEFENSE
That plaintiff-spouse's loss of consortium claim(s) is/are barred as a matter of law
because the alleged asbestos exposure by the plaintiff predates the date of the plaintiff' and
plaintiff-spouse's marriage.
ALL OF THE ABOVE-NAMED CO-DEFENDANTS
If the plaintiff sustained damages in the manner alleged in whole or part in the Verified
Complaint, all of which is denied by this answering Defendant herein, such damages were
caused entirely by reason of the active and primary negligence and/or other culpable conduct of
the co-defendants above-named and of third parties who are not parties to this action, with no
active or primary negligence or other culpable conduct on the part of this Defendant contributing
thereto.
WHEREFORE, this answering Defendant demands judgment against its co-defendants
and/or third parties not parties to this action for INDEMNIFICATION in full with respect to any
damages, verdict or judgment which any party to this action may recover against this Defendant,
together with costs of suit and attorneys’ fees.
ALL OF THE ABOVE-NAMED CO-DEFENDANTS
If the plaintiff sustained damages in the manner alleged in whole or part in the Verified
Complaint, all of which is denied by the answering Defendant, such damages were caused in
whole or part by the negligence and/or other culpable conduct of the co-defendants above named
- 15 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
15 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
and of third parties who are not parties to this action, with no negligence or culpable conduct on
the part of this Defendant contributing thereto.
WHEREFORE, this answering Defendant is entitled to CONTRIBUTION pursuant to
Article 14 of the New York Civ. L. & R. and to judgment over and against the above-named
defendants and/or third parties who are not parties to this action, who are joint tortfeasors with
respect to any damages, liability and expense on account of plaintiff’s demand for judgment, in
the amount of any excess paid by this Defendant over and above its equitable share of the
judgment recovered by the plaintiffs determined in accordance with the relative culpability of
each person liable to the plaintiff for contribution.
ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS
The answering Defendant denies any and all cross claims for contribution and/or
indemnification that may be asserted at any time by co-defendants against this Defendant.
WHEREFORE, Defendant, Honeywell International Inc., f/k/a AlliedSignal Inc., as
successor-in-interest to the Bendix Corporation ("Honeywell"), sued herein as above, demands
judgment dismissing the plaintiffs’ Amended Verified Complaint with costs and disbursements,
or in the alternative, awarding Honeywell judgment which any party to this action may recover
against Honeywell on the basis of common law indemnity, or in the alternative, awarding
Honeywell judgment over and against the defendants above named in the amount of any excess
paid by Honeywell over and above its equitable share of the judgment recovered by the plaintiffs
all determined in accordance with the relative culpability of each party liable to the plaintiffs for
contribution; and for such other and further relief as this Court deems just and proper.
- 16 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
16 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
Dated: New York, New York
April 23, 2021
___________________________
By: Donald R. Pugliese, Esq.
McDERMOTT WILL & EMERY LLP
340 Madison Avenue
New York, New York 10173
Attorneys for Defendant
Honeywell International Inc., f/k/a
AlliedSignal Inc., as successor-in-interest to
The Bendix Corporation
- 17 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
17 of 18
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021
VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
Donald R. Pugliese, an attorney admitted to the Practice of Law in the State of
New York, affirms that he is the attorney for the Defendant, Honeywell International Inc. f/k/a
AlliedSignal, Inc., as successor-in-interest to The Bendix Corporation, in the within action, and
that he is counsel to the firm of McDermott Will & Emery LLP, with offices located at 340
Madison Avenue, New York, New York 10173; that he has read the contents of the foregoing
Answer to the Amended Verified Complaint filed by Weitz & Luxenberg, P.C., on behalf of
Plaintiffs, and that the same is true to the knowledge of affirmant based upon information
supplied to him at the time of the preparing of the Answer and as to matters therein stated to be
alleged upon information and belief, he believed to be true also based upon information supplied
to him at the time of the preparing of the Answer.
Affirmant makes this Verification on behalf of his client pursuant to C.P.L.R. 2106 and
C.P.L.R. 3020(d)(3) as the Defendant is a foreign corporation and is not within New York
County wherein his offices are located.
_______________________________________
Donald R. Pugliese
Dated: New York, New York
April 23, 2021
- 18 -
DM_US 71339702-1.091479.0805
DM_US 174450473-1.091479.1635
18 of 18
Preview
FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------- X HARRY J. HAMPSON, : : Index No.: 606219-21 Plaintiff (s), : : VERIFIED ANSWER - against - : : AMCHEM PRODUCTS, INC., et al., : : : Defendants. : -------------------------------------------------------------- X Defendant, Honeywell International Inc., f/k/a AlliedSignal Inc., as successor-in-interest to the Bendix Corporation, hereinafter referred to as "Honeywell," by its attorneys, McDermott Will & Emery LLP, answers the Verified Complaint, hereinafter referred to as "Complaint," of the plaintiff, filed by Weitz & Luxenberg, P.C. and says: AS TO GENERAL ALLEGATIONS IN THE COMPLAINT 1. Honeywell denies knowledge and information to form a belief as to the truth of the allegations contained in paragraph 1 of the Complaint, and the plaintiff is left to his proof with respect thereto. Insofar as the allegations contained in paragraph 1 are directed to Honeywell, they are denied. 2. Honeywell denies knowledge and information to form a belief as to the truth of allegations contained in paragraph 2 of the Complaint with respect to defendants other than Honeywell. Insofar as the allegations contained in paragraph 2 are directed to Honeywell, they are denied. 3. Honeywell admits that it did conduct business in this state from time to time; however, Honeywell denies that such business is in any way related to the allegations contained in paragraph 3 of the Complaint. -1- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 1 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 4. Honeywell denies knowledge and information to form a belief as to the truth of allegations contained in paragraphs 4 through 12 and 14 through 23 of the Complaint with respect to defendants other than Honeywell. Insofar as the allegations contained in paragraphs 4 through 12 and 14 through 23 of the Complaint are directed to Honeywell, they are denied. 5. Honeywell acknowledges that the information contained in paragraph 13 is true. FIRST CAUSE OF ACTION 6. Honeywell repeats its answers to paragraphs 1 through 23 of the Complaint as if set forth fully herein. 7. Honeywell denies knowledge and information to form a belief as to the truth of the allegations contained in paragraphs 25 through 43 of the Complaint, and the plaintiff is left to his proof with respect thereto. Insofar as the allegations contained in paragraphs 25 through 43 are directed to Honeywell, they are denied. SECOND CAUSE OF ACTION 8. Honeywell repeats its answers to paragraphs 1 through 43 of the Complaint as if set forth fully herein 9. Honeywell denies knowledge and information to form a belief as to the truth of the allegations contained in paragraphs 45 through 49 of the Complaint, and the plaintiff is left to his proof with respect thereto. Insofar as the allegations contained in paragraphs 45 through 49 of the Complaint are directed to Honeywell, they are denied. THIRD CAUSE OF ACTION 10. Honeywell repeats its answers to paragraphs 1 through 49 of the Complaint as if set forth fully herein 11. Honeywell denies knowledge and information to form a belief as to the truth of the allegations contained in paragraphs 51 through 59 of the Complaint, and the plaintiff is -2- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 2 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 left to his proof with respect thereto. Insofar as the allegations contained in paragraphs 51 through 59 of the Complaint are directed to Honeywell, they are denied. FOURTH CAUSE OF ACTION 12. Honeywell repeats its answers to paragraphs 1 through 59 of the Complaint as if set forth fully herein 13 Honeywell denies knowledge and information to form a belief as to the truth of allegations contained in paragraphs 61 through 70 of the Complaint, including all subparts, with respect to defendants other than Honeywell. Insofar as the allegations contained in paragraphs 61 through 70 of the Complaint, including all subparts, are directed to Honeywell, they are denied. FIFTH CAUSE OF ACTION 14. Honeywell repeats its answers to paragraphs 1 through 70 of the Complaint as if set forth fully herein. 15. Honeywell denies knowledge and information to form a belief as to the truth of the allegations contained in paragraphs 72 through 89, including all subparts of the Complaint, and the plaintiff is left to his proof with respect thereto. Insofar as the allegations contained in paragraphs 72 through 89, including all subparts of the Complaint are directed to Honeywell, they are denied. SIXTH CAUSE OF ACTION 16. Honeywell repeats its answers to paragraphs 1 through 89 of the Complaint as if set forth fully herein. 17. Honeywell denies knowledge and information to form a belief as to the truth of the allegations contained in paragraphs 91 and 92 of the Complaint, and the plaintiff is left to his -3- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 3 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 proof with respect thereto. Insofar as the allegations contained in paragraphs 91 and 92 of the Complaint are directed to Honeywell, they are denied. FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a cause of action. SECOND AFFIRMATIVE DEFENSE Plaintiff failed to properly serve Honeywell with the Summons and Complaint and the Court lacks jurisdiction herein. THIRD AFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over this answering Defendant. FOURTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of this action. FIFTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred because the Complaint is defective as a matter of law. SIXTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the applicable Statute of Limitations. SEVENTH AFFIRMATIVE DEFENSE The delay of the plaintiff in commencing suit is inexcusable and has resulted in prejudice to Honeywell, and the equitable doctrine of laches bars their claims. EIGHTH AFFIRMATIVE DEFENSE Plaintiff failed to bring the Complaint in the appropriate venue. NINTH AFFIRMATIVE DEFENSE Pursuant to General Obligations Law Section 15-108, Honeywell is entitled to set-off. -4- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 4 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 TENTH AFFIRMATIVE DEFENSE Any recovery by plaintiffs herein must be reduced by collateral source payments pursuant to N.Y. Civ. Prac. L. & R. 4545. ELEVENTH AFFIRMATIVE DEFENSE If the answering Defendant is found liable, such liability is less than or equal to 50% of the total liability of all persons who may be found liable, and therefore, this answering Defendant’s liability shall be limited to its equitable share pursuant to N.Y. Civ. Prac. L. & R. Section 1601. TWELFTH AFFIRMATIVE DEFENSE If the causes of action, based upon statutory liability as pleaded in the Complaint, are based upon expressed or implied warranties and/or representations, then the alleged breaches thereto, as against this answering Defendant, are legally insufficient by reason of their failure to allege privity of contract between the plaintiff and this answering Defendant. THIRTEENTH AFFIRMATIVE DEFENSE The answering Defendant gave, made or extended no warranties, whether express or implied, upon which plaintiff had a right to rely. FOURTEENTH AFFIRMATIVE DEFENSE The answering Defendant breached no warranties, whether express or implied. FIFTEENTH AFFIRMATIVE DEFENSE The Statute of Limitations is a complete and total bar as to any and all warranties allegedly presented or made in connection with the alleged sale, manufacture, distribution, supply, testing, design, packaging or delivery of the asbestos product(s) to which plaintiff allegedly came into contact. -5- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 5 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 SIXTEENTH AFFIRMATIVE DEFENSE If the causes of action based upon statutory liability are founded upon any oral warranties or undertakings on the part of the answering Defendant upon which the plaintiff might rely, they are inadmissible and unavailable pursuant to the provisions of the Statute of Frauds. SEVENTEENTH AFFIRMATIVE DEFENSE That insofar as the Complaint and each cause of action of each plaintiff considered separately alleges a cause of action occurring on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by the plaintiff’s comparative negligence, in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages. EIGHTEENTH AFFIRMATIVE DEFENSE That insofar as the causes of action herein considered separately occurred before September 1, 1975, such causes of action are barred by reason of the contributory negligence of the plaintiff. NINETEENTH AFFIRMATIVE DEFENSE That plaintiff is barred from any recovery against this answering Defendant by the doctrine of assumption of the risk. TWENTIETH AFFIRMATIVE DEFENSE That plaintiff contributed to his alleged illness, either in whole or part, by the use of other substances, products, medications and/or drugs. TWENTY-FIRST AFFIRMATIVE DEFENSE That plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the Complaint. -6- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 6 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 TWENTY-SECOND AFFIRMATIVE DEFENSE In the event that plaintiff was employed by this answering Defendant, such plaintiff'’s sole remedy is under the Workers’ Compensation Law and said plaintiff cannot recover from this Defendant in this action. TWENTY-THIRD AFFIRMATIVE DEFENSE That the plaintiff’s employer(s) were sophisticated purchasers and/or users of the products referred to in plaintiff's Complaint and upon whom devolved all responsibility for such use. TWENTY-FOURTH AFFIRMATIVE DEFENSE That the matters that are the subject of the plaintiff’s Complaint are attributable to third parties over whom this answering Defendant had neither control nor right of control. TWENTY-FIFTH AFFIRMATIVE DEFENSE That if plaintiff should prove that he sustained injuries and damages as alleged, such injuries and damages resulted from acts or omissions on the part of third parties, including plaintiff's employer(s), over whom this Defendant had neither control nor right of control and for whose acts or omissions this answering Defendant is not liable. TWENTY-SIXTH AFFIRMATIVE DEFENSE This answering Defendant denies the allegations of the plaintiff with respect to negligence, statutory liability, strict liability, injury and damages, and to the extent that plaintiff may be able to prove the same, they were the result of intervening and/or interceding acts of superceding negligence or other conduct on the part of parties over which this Defendant has neither control nor right of control. -7- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 7 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 TWENTY-SEVENTH AFFIRMATIVE DEFENSE This answering Defendant reserves the right to amend its answer and to assert additional cross claims and/or otherwise counterclaims as to any party named herein, who may have, is or will be declared bankrupt or otherwise files a petition under the Bankruptcy Code, pursuant to Article 16 of the N.Y. Civ. Prac. L. & R. and to the decision of Justice Helen E. Freedman, presiding judge for the New York City Asbestos Litigation (October 28, 2002). TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and indispensable parties. TWENTY-NINTH AFFIRMATIVE DEFENSE That during the periods of exposure alleged in the Complaint by the plaintiff, this answering Defendant denies specifically that it mined, processed, manufactured, designed, sold, delivered, supplied, developed, tested, fashioned, packaged, distributed and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos products to which plaintiff allegedly was caused to come into contact and were allegedly caused to breathe, inhale and/or digest, and which allegedly caused plaintiff’s injuries and resulting damages. In the event it should be proved at the time of trial that all defendants are subject to market share liability, then this Defendant’s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and this answering Defendant will be entitled to contribution either in whole or part from the other answering Defendants. THIRTIETH AFFIRMATIVE DEFENSE That no enterprise liability lies against this answering Defendant herein. -8- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 8 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 THIRTY-FIRST AFFIRMATIVE DEFENSE That at all times during the conduct of the corporate operations, the agents, servants and/or employees of this answering Defendant, utilized proper methods of manufacture of products in conformity with the state of the art and the knowledge and research of the scientific community. To the extent that this answering Defendant conformed to the scientific knowledge and research data available throughout the industry in which it was engaged, and the scientific community, this Defendant has fulfilled its obligations, if any, herein, and plaintiff's’ claims should be barred, in whole or part. THIRTY-SECOND AFFIRMATIVE DEFENSE That this answering Defendant conformed to the scientific knowledge and data available in the industry in which it was engaged, and fulfilled its obligations, if any, and its activities and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and plaintiff may not recover herein any exemplary or punitive damages against this Defendant. THIRTY-THIRD AFFIRMATIVE DEFENSE That insofar as plaintiff s allege as against this answering Defendant, any willful and wanton misconduct, and that this Defendant allegedly knowingly and intentionally sold a product or products that it knew to be unreasonably dangerous, all of which this Defendant denies, any such cause of action or causes of action accrued more than one year prior to the commencement of this lawsuit and are time-barred. THIRTY-FOURTH AFFIRMATIVE DEFENSE That at all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently -9- DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 9 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 dangerous, or hazardous character or nature of products containing asbestos when used in the manner and purpose described by the plaintiffs and, therefore, there was no duty for this answering Defendant to know of any such character or nature or to warn plaintiffs or others similarly situated. THIRTY-FIFTH AFFIRMATIVE DEFENSE To the extent that this answering Defendant conformed to the scientific knowledge and research data available throughout the industry and scientific community, Honeywell has fulfilled its obligations, if any, herein, and plaintiffs’ claims should be barred, in whole or in part. THIRTY-SIXTH AFFIRMATIVE DEFENSE That plaintiff was warned of the risk of exposure to use of asbestos-containing materials. THIRTY-SEVENTH AFFIRMATIVE DEFENSE That any exposure that plaintiff claims to this answering Defendant’s products or equipment, which alleged exposure is denied, was so minimal as to be insufficient to establish a reasonable degree of probability that said products or equipment caused the injuries, illnesses and damages alleged by the plaintiff in the Complaint. THIRTY-EIGHTH AFFIRMATIVE DEFENSE That while denying the allegations of the plaintiff with respect to liability, to the extent that the plaintiffs are able to prove negligence or other improper conduct in accordance with the applicable standards of proof, the acts and/or omissions of this answering Defendant were not a proximate cause of any injuries, illnesses and/or damages to plaintiff. THIRTY-NINTH AFFIRMATIVE DEFENSE That any claim against this answering Defendant is barred by reason of substantial product change, alteration and/or modification. - 10 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 10 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 FORTIETH AFFIRMATIVE DEFENSE That plaintiff has failed to state a cause of action upon which relief may be granted, inasmuch as plaintiffs are unable to identify the manufacturer(s) of the substance allegedly causing injury, and relief granted would deprive this Defendant of its right to substantive and procedural due process of law and equal protection under the law pursuant to the Fourteenth Amendment of the Constitution of the United States. FORTY-FIRST AFFIRMATIVE DEFENSE That this answering Defendant denies that the asbestos-containing products alleged in plaintiff’s Complaint are products within the meaning and scope of the Restatement of Torts, Section 402A and as such, the Complaint fails to state a cause of action in strict liability. FORTY-SECOND AFFIRMATIVE DEFENSE That the plaintiff, his co-workers and employees misused, mistreated and misapplied the product(s) designated as asbestos materials as alleged in the Complaint. That if the Court finds after trial that any misuse, mistreatment and/or misapplication of the said product(s) caused and/or contributed to the alleged injuries or damages to the plaintiff, then, in that event, this answering Defendant prays that the amount of damages which might be recoverable shall be diminished in the proportion which the misuse, abuse, mistreatment and/or misapplication attributed to the plaintiff and/or their co-workers and/or employees bears to the conduct which caused the alleged injuries or damages. FORTY-THIRD AFFIRMATIVE DEFENSE That the causes of action asserted herein by the plaintiff, who is unable to identify the manufacturer of the alleged injury-causing product(s), fail to state a cause of action upon which relief can be granted, in that plaintiff has asserted claims for relief which, if granted, would - 11 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 11 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 constitute a taking of private property for public use, without just compensation. Such a taking would contravene this answering Defendant’s constitutional rights as preserved for it by the Fourteenth Amendment to the Constitution of the United States. FORTY-FOURTH AFFIRMATIVE DEFENSE That exposure to asbestos fibers attributable to product(s) allegedly processed, manufactured, produced, constructed, designed, tested, fashioned, packaged, sold, distributed, delivered, supplied, advertised or otherwise placed in the stream of commerce by this answering Defendant, is so minimal so as to be insufficient to establish to a reasonable degree of probability that said product(s) are capable of causing injury or damages and must be speculative as a matter of law. FORTY-FIFTH AFFIRMATIVE DEFENSE That the plaintiff’s injuries were caused, either in whole or part, by the general condition, quality and content of the air and/or environment in the New York metropolitan area. FORTY-SIXTH AFFIRMATIVE DEFENSE That if it should be proved at the time of trial that any of the answering Defendant’s product(s) were furnished to plaintiff’s employer(s) and/or to the United States Government, and that plaintiff came into contact with said product(s), which this Defendant specifically denies, then any product(s) processed, manufactured, produced, constructed, designed, tested, fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream of commerce by this Defendant which was or may have been furnished to plaintiff's employer(s) and/or to the United States Government, and with which plaintiff alleges he came or may have come into contact was processed, manufactured, produced, constructed, designed, tested, fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in - 12 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 12 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 the stream of commerce in strict conformity to the conditions specified, or to specifications furnished by the plaintiff'-husband’s employer(s) and/or the United States Government. FORTY-SEVENTH AFFIRMATIVE DEFENSE That to the extent that the causes pleaded by the plaintiff herein fail to accord with the Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiff’s’ Complaint is barred. FORTY-EIGHTH AFFIRMATIVE DEFENSE That to the extent that plaintiff relies on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive(s) the answering Defendant of its constitutional rights and is/are wholly void and unenforceable. FORTY-NINTH AFFIRMATIVE DEFENSE That to the extent the plaintiff seeks punitive damages against this answering Defendant, and rely on Section 4 of the New York Laws 1986, c.682 as grounds for reviving and maintaining the action, such damages are improper and are not authorized by law since this statute does not revive any claims for punitive damages, leaving such claims time-barred in their entirety. FIFTIETH AFFIRMATIVE DEFENSE That these actions and the causes pleaded by the plaintiff herein are barred by virtue of Article 1, Section 10 of the United States Constitution. FIFTY-FIRST AFFIRMATIVE DEFENSE That to the extent that plaintiff seekS punitive damages against the answering Defendant, these damages are improper and unwarranted, not authorized by law, and are unconstitutional. - 13 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 13 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 Subjecting this Defendant to multiple trials and the multiple imposition of punitive damages for a single course of conduct is a violation of both substantive and procedural due process under the Constitution of the United States and the Constitution of the State of New York. FIFTY-THIRD AFFIRMATIVE DEFENSE That plaintiff’s demand for punitive damages is barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment and Article I, Section 5 of the New York State Constitution, prohibiting the imposition of excessive fines. FIFTY-FOURTH AFFIRMATIVE DEFENSE That plaintiff’s demand for punitive damages is barred by the “ex post facto” clause of the United States Constitution. FIFTY-FIFTH AFFIRMATIVE DEFENSE That with respect to plaintiff’s claim of a duty owed to them, this answering Defendant denies breaching any duty which it may have owed to the plaintiffs. FIFTY-SIXTH AFFIRMATIVE DEFENSE That all defenses which have been and/or will be asserted by other Defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to plaintiff’s Complaint by this answering Defendant. FIFTY-SEVENTH AFFIRMATIVE DEFENSE This answering Defendant reserves the right to amend its answer to assert additional defenses and/or to supplement, alter or change this answer upon discovery of the specific facts upon which plaintiff bases his claims for relief, and upon completion of further discovery. - 14 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 14 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 FIFTY-EIGHTH AFFIRMATIVE DEFENSE This answering Defendant reserves the right to move for a severance of the various allegations in the plaintiff’s Complaint. FIFTY-NINTH AFFIRMATIVE DEFENSE That plaintiff-spouse's loss of consortium claim(s) is/are barred as a matter of law because the alleged asbestos exposure by the plaintiff predates the date of the plaintiff' and plaintiff-spouse's marriage. ALL OF THE ABOVE-NAMED CO-DEFENDANTS If the plaintiff sustained damages in the manner alleged in whole or part in the Verified Complaint, all of which is denied by this answering Defendant herein, such damages were caused entirely by reason of the active and primary negligence and/or other culpable conduct of the co-defendants above-named and of third parties who are not parties to this action, with no active or primary negligence or other culpable conduct on the part of this Defendant contributing thereto. WHEREFORE, this answering Defendant demands judgment against its co-defendants and/or third parties not parties to this action for INDEMNIFICATION in full with respect to any damages, verdict or judgment which any party to this action may recover against this Defendant, together with costs of suit and attorneys’ fees. ALL OF THE ABOVE-NAMED CO-DEFENDANTS If the plaintiff sustained damages in the manner alleged in whole or part in the Verified Complaint, all of which is denied by the answering Defendant, such damages were caused in whole or part by the negligence and/or other culpable conduct of the co-defendants above named - 15 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 15 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 and of third parties who are not parties to this action, with no negligence or culpable conduct on the part of this Defendant contributing thereto. WHEREFORE, this answering Defendant is entitled to CONTRIBUTION pursuant to Article 14 of the New York Civ. L. & R. and to judgment over and against the above-named defendants and/or third parties who are not parties to this action, who are joint tortfeasors with respect to any damages, liability and expense on account of plaintiff’s demand for judgment, in the amount of any excess paid by this Defendant over and above its equitable share of the judgment recovered by the plaintiffs determined in accordance with the relative culpability of each person liable to the plaintiff for contribution. ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS The answering Defendant denies any and all cross claims for contribution and/or indemnification that may be asserted at any time by co-defendants against this Defendant. WHEREFORE, Defendant, Honeywell International Inc., f/k/a AlliedSignal Inc., as successor-in-interest to the Bendix Corporation ("Honeywell"), sued herein as above, demands judgment dismissing the plaintiffs’ Amended Verified Complaint with costs and disbursements, or in the alternative, awarding Honeywell judgment which any party to this action may recover against Honeywell on the basis of common law indemnity, or in the alternative, awarding Honeywell judgment over and against the defendants above named in the amount of any excess paid by Honeywell over and above its equitable share of the judgment recovered by the plaintiffs all determined in accordance with the relative culpability of each party liable to the plaintiffs for contribution; and for such other and further relief as this Court deems just and proper. - 16 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 16 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 Dated: New York, New York April 23, 2021 ___________________________ By: Donald R. Pugliese, Esq. McDERMOTT WILL & EMERY LLP 340 Madison Avenue New York, New York 10173 Attorneys for Defendant Honeywell International Inc., f/k/a AlliedSignal Inc., as successor-in-interest to The Bendix Corporation - 17 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 17 of 18 FILED: SUFFOLK COUNTY CLERK 04/23/2021 04:01 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/23/2021 VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) Donald R. Pugliese, an attorney admitted to the Practice of Law in the State of New York, affirms that he is the attorney for the Defendant, Honeywell International Inc. f/k/a AlliedSignal, Inc., as successor-in-interest to The Bendix Corporation, in the within action, and that he is counsel to the firm of McDermott Will & Emery LLP, with offices located at 340 Madison Avenue, New York, New York 10173; that he has read the contents of the foregoing Answer to the Amended Verified Complaint filed by Weitz & Luxenberg, P.C., on behalf of Plaintiffs, and that the same is true to the knowledge of affirmant based upon information supplied to him at the time of the preparing of the Answer and as to matters therein stated to be alleged upon information and belief, he believed to be true also based upon information supplied to him at the time of the preparing of the Answer. Affirmant makes this Verification on behalf of his client pursuant to C.P.L.R. 2106 and C.P.L.R. 3020(d)(3) as the Defendant is a foreign corporation and is not within New York County wherein his offices are located. _______________________________________ Donald R. Pugliese Dated: New York, New York April 23, 2021 - 18 - DM_US 71339702-1.091479.0805 DM_US 174450473-1.091479.1635 18 of 18