Preview
FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
___________________________________________ AII ACQUISITION, LLC’S
VERIFIED ANSWER WITH
ROGER PAUL SPEZIO, SR. AND KATHLEEN SPEZIO, AFFIRMATIVE DEFENSES,
CROSS-CLAIMS, AND
PLAINTIFFS, ANSWER TO CROSS-CLAIMS
TO PLAINTIFFS’ VERIFIED
V. COMPLAINT
3M COMPANY, ET AL.,
Index No.: EF2023-99
DEFENDANTS.
____________________________________________
Defendant, AII Acquisition, LLC, improperly pled as “AII Acquisition Corporation,
LLC, Individually and as Successor-in-Interest to Athlone Industries, Inc. and Holland Furnace
Company” (hereinafter “AII Acquisition”) for its Verified Answer to Plaintiffs’ Verified
Complaint (hereinafter “the Complaint”), by its attorneys, MCGIVNEY KLUGER CLARK &
INTOCCIA, P.C., respectfully alleges and shows to the Court, upon information and belief:
1. As to the allegations in the paragraph designated “8” of the Complaint, admits
that AII Acquisition is a duly organized foreign corporation; denies each and every other
allegation in said paragraph.
2. Denies any knowledge or information sufficient to form a belief as to the
allegations contained in the paragraphs designated “1,” “6,” “7,” “9,” “10,” “11,” “12,” “13,”
“14,” “15,” “16,” “17,” “18,” “19,” “20,” “21,” “22,” “23,” “24,” “25,” “26,” “27,” “28,” “29,”
“30,” “31,” “32,” “33,” “34,” “35,” “36,” “37,” “38,” “39,” “40,” “41,” “42,” “43,” “44,” “45,”
“46,” “47,” “48,” “49,” “50,” “51,” “52,” “53,” “54,” “55,” “56,” “57,” “58,” “59,” “60,” “61,”
“62,” “63,” “64,” “65,” “66,” and “67,” of the Complaint.
3. Denies each and every allegation contained in paragraphs designated “2,” “3,”
“68,” “72,” “73,” “74,” “75,” “76,” “80,” “81,” “82,” “83,” “84,” “85” “89,” “90,” “93,” “94,”
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“95,” “96,” “97” “99,” “100,” “102,” “103,” “104,” “105,” “106,” “107,” “108,” “109,” “110,”
“111,” “112,” “113,” “114,” “116,” “117,” “121,” “126,” “127,” “131,” “132,” “134,” “137,”
“139,” “140,” “141,” “142,” “143,” “146,” “147,” “152,” “153,” “154,” “155,” “156,” “157,”
“159, “161,” “162,” “163, ” “164,” “165,” “166,” “169,” “171,” “172,” “176,” “178,” “179,”
“182,” “184,” and “191” of the Complaint, insofar as they pertain in any way to AII
Acquisition; except denies that Plaintiff, Roger Paul Spezio, Sr. (hereinafter “Plaintiff”), was
injured as alleged, and further denies Plaintiff and Co-Plaintiff, Katheen Spezio (hereinafter
“Plaintiff Spouse,” collectively “Plaintiffs”), incurred damages as alleged; denies knowledge or
information sufficient to form a belief as to the remaining allegations contained in said
paragraphs; and refers all questions of law to this Court for determination at the time of trial.
4. Denies each and every allegation contained in paragraphs designated “5,” “69,”
“70,” “71,” “78,” “79,” “87,” “88,” “92,” “115,” “119,” “122,” “123,” “124,” “125,” “129,”
“130,” “133,” “135,” “136,” “148,” “149,” “150,” “151,” “160,” “167,” “168,” “170,” “177,”
“180,” “181,” “183,” “185,” and “186” of the Complaint, insofar as they pertain in any way to
AII Acquisition; denies knowledge or information sufficient to form a belief as to the remaining
allegations contained in said paragraphs; and refers all questions of law to this Court for
determination at the time of trial.
5. Denies each and every allegation contained in the paragraphs designated “4,”
“98,” “118,” “138,” “145,” “173,” “175,” and “188” of the Complaint.
6. Denies any knowledge or information sufficient to form a belief as to the
allegations contained in the paragraph designated “190” of the Complaint; and refers all
questions of law to this Court for determination at the time of trial.
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7. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “76” in denying paragraph
designated “77.”
8. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “85” in denying paragraph
designated “186.”
9. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “90” in denying paragraph
designated “91.”
10. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “100” in denying paragraph
designated “101.”
11. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “119” in denying paragraph
designated “120.”
12. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “127” in denying paragraph
designated “128.”
13. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “143” in denying paragraph
designated “144.”
14. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “157” in denying paragraph
designated “158.”
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15. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “173” in denying paragraph
designated “174.”
16. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “186” in denying paragraph
designated “187.”
17. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and
every answer heretofore made to paragraphs designated “1” through “188” in denying paragraph
designated “189.”
18. Defendant, AII Acquisition denies each and every other allegation contained in
the Complaint not heretofore specifically admitted.
FIRST SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint fails to state a cause of action against AII Acquisition.
SECOND SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint fails to state a claim against AII Acquisition for which relief may be
granted.
THIRD SEPARATE AFFIRMATIVE DEFENSE
Any injury that Plaintiff(s) may have suffered was caused by her sole negligence and/or
negligence properly imputed to Plaintiff(s).
FOURTH SEPARATE AFFIRMATIVE DEFENSE
The conduct of the Plaintiff and the conduct imputed to Plaintiff was willful, wanton
and/or reckless.
FIFTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff assumed the risk of conduct which caused any alleged damages. Insofar as the
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complaints of each cause of action therein, considered separately, allege that a cause of action
occurred, the recovered damages for personal injuries and the amount of damages recoverable
thereon must be diminished by reason of the culpable conduct attributed to Plaintiff.
SIXTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff assumed the risk of her conduct and/or conduct improperly imputed to AII
Acquisition.
SEVENTH SEPARATE AFFIRMATIVE DEFENSE
Negligence, if any, was caused by the acts or omissions of third parties over whom AII
Acquisition exercised no control and had no right to exercise control.
EIGHTH SEPARATE AFFIRMATIVE DEFENSE
AII Acquisition comported with the applicable state of the art in the sale and/or
distribution of products during the time period(s) relevant to the Plaintiffs’ Complaint.
NINTH SEPARATE AFFIRMATIVE DEFENSE
AII Acquisition reserves the right to amend its Answer and adopt additional defenses
which have been or will be served by other defendants in this action. In addition, AII Acquisition
will rely upon further defenses which become available or appear during discovery proceedings
in this action and hereby specifically reserves the right to amend its Answer for the purposes of
asserting any such additional defenses.
TENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ actions are barred by the doctrines of estoppel, waiver, and laches.
ELEVENTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over the subject matter of this action.
TWELFTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over AII Acquisition.
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THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE
The venue of this action is improper and AII Acquisition reserves the right to move for
transfer.
FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE
AII Acquisition is erroneously named in the Complaint.
FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE
The incident and the injuries and damages complained of were caused by the
unauthorized, unintended, or improper use of the products complained of and as a result of a
failure to exercise reasonable and ordinary care, caution or prudence by other Co-Defendants,
persons, parties, or entities over whom AII Acquisition had no control or right of control.
Plaintiff has been contributorily negligent in proximately causing any alleged injury.
SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE
Applicable laws, rules, statutes or regulations including the relevant statute of limitations
controlling or requiring the institution of suit within a certain period of time were not complied
with by the plaintiffs, and accordingly, the Plaintiffs’ claims are barred as a matter of law.
SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE
Although AII Acquisition denies the allegations of the Plaintiff as to injuries, damages,
and death as alleged, these injuries and damages, if any, were caused by the intervening acts
and/or superseding negligence of other Co-Defendants, persons, parties, or entities over whom
AII Acquisition had no control or right of control.
EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE
Inasmuch as the Plaintiff is unable to identify the manufacturer of product(s) which
allegedly caused the injuries to Plaintiff(s), Plaintiffs’ claims for relief cannot be granted since
the granting of such relief in the absence of product identification would contravene AII
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Acquisition’s constitutional right to procedural due process of law and equal protection as
preserved by the United States Constitution and the Constitution of the State of New York as
well as contravene AII Acquisition’s constitutional right to protect against the taking of private
property for public use without just compensation as preserved by the United States Constitution
and Constitution of the State of New York.
NINETEENTH SEPARATE AFFIRMATIVE DEFENSE
AII Acquisition has complied with all applicable laws, regulations, and standards at all
relevant times during Plaintiffs’ alleged injuries. AII Acquisition denies that it was guilty of any
malicious or intentional conduct with would permit the award of judgment for punitive damages.
TWENTIETH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ claims for punitive damages are barred by the due process clause of the
Fourteenth Amendment to the United States Constitution.
TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ claims for punitive damages are barred by the Eighth Amendment of the
United States Constitution applied to the states by the Fourteenth Amendment, prohibiting the
imposition of excessive fines.
TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ claims for punitive damages are barred by the double jeopardy clause of the
Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth
Amendment.
TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
The Order of the Bankruptcy Court which prevents AII Acquisition from joining
indispensable parties who had declared bankruptcy, has the effect of requiring AII Acquisition to
defend this action without those other companies as co-defendant’s and prevents the Court from
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being able to hear and adjudge all relevant evidence in regard to Plaintiffs’ claims and therefore
denies AII Acquisition of the constitutional right to due process under the Fourteenth
Amendment.
TWENTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
Any injuries, death and/or damages allegedly sustained by Plaintiff were naturally and
proximately caused by the sole negligence of Plaintiff.
TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
If applicable, any Administrator(trix)/Executor(trix) of the Estate of Plaintiff deriving
their cause of action from the injuries, death and damages allegedly sustained by Plaintiff at the
time(s) and place(s) referred to in the Complaint, is subject to the defenses herein set forth and
by this reference incorporated.
TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
Any Plaintiff having a derivative cause of action, is barred from recovery by reason of the
contributory negligence of Plaintiff, and as a nullity due to Plaintiff alleged injury, if any, arising
prior to the grounds under which the derivative Plaintiff may seek recovery accruing.
TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
To the extent that any injury and/or death relating to Plaintiff occurred in the context of
an employer-employee relationship with AII Acquisition, if any, claims for said injuries and/or
death are barred by the Workers’ Compensation Act.
TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The purchaser(s) of AII Acquisition’s product(s) and/or services and all third-party
beneficiaries of any warranties, express or implied, relating to the product(s) or services failed to
provide notice of the alleged breaches of warranty to AII Acquisition pursuant to the applicable
provision(s) of the Uniform Commercial Code.
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TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
To the extent that Plaintiff is alleged to have sustained injuries from the use of a product
manufactured, supplied, applied, or removed by AII Acquisition, alleged to contain asbestos,
which is expressly denied, Plaintiff, other Co-Defendants, parties, persons, or entities, not under
the control or right of control of AII Acquisition, misused, abused, misapplied, and otherwise
mishandled the product(s) alleged to contain asbestos material. Therefore, the amount of
damages which may be recoverable must be diminished by the proportion which said misuse,
abuse, misapplication, and mishandling bears to the conduct which caused any alleged damage
or injury.
THIRTIETH SEPARATE AFFIRMATIVE DEFENSE
To the extent that Plaintiff was exposed to any product containing asbestos as a result of
conduct by AII Acquisition, which is expressly denied, said exposure was de minimis and not a
substantial contributing factor to any asbestos-related disease which Plaintiff may have
developed, and not actionable at law or equity.
THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
indispensable parties.
THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
Plaintiff contributed to the illness alleged in the Complaint, either in whole or in part, by
exposure to or the use of tobacco products and/or other substances, products, medications, or
drugs.
THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
Upon information and belief, some or all of the causes of action set forth in the
Complaint may not be maintained because of collateral estoppel.
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THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
Upon information and belief, some or all of the causes of action set forth in the
Complaint may not be maintained because of discharge in bankruptcy.
THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
Upon information and belief, some or all of the causes of action set forth in the
Complaint may not be maintained because of res judicata.
THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
To the extent any Plaintiff herein brings suit in a representative capacity, such Plaintiff
has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York
Estates Powers and Trusts Law §5-41.
THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
If Plaintiff is successful on her claims for damages and liability by reason of the alleged
acts complained of, such an amount must be decreased by the amount Plaintiff has received or
Plaintiff will receive from any collateral source(s).
THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
There is a lack of jurisdiction over the person of AII Acquisition by reason of
insufficiency of process and insufficiency of service of process. AII Acquisition therefore
reserves the right to move to dismiss the Complaint.
THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
AII Acquisition is immune from liability for any conduct performed in conformance with
specifications mandated by Plaintiff’ employer(s).
FORTIETH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ causes of action are precluded and pre-empted by OSHA regulations.
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FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
This action does not fall within one or more of the exceptions set forth in CPLR § 1602,
and while AII Acquisition expressly denies any and all allegations in Plaintiffs’ Complaint as
against it, in the event AII Acquisition is found to have any liability in this matter, it cannot be
held responsible for more than its pro rata share of any verdict.
FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
Any verdict or judgment against any defendant, including AII Acquisition, is entitled to a
reduction pursuant to N.Y. General Obligations Law § 15-108, on the basis of any and all prior
settlements, compromises, claims, and other collateral sources.
FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
AII Acquisition owed no duty or duties of care to Plaintiff(s).
FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
At all times relevant, Plaintiff and Plaintiffs’ employers were sophisticated users of
asbestos, and therefore, AII Acquisition owed no duty of care to warn Plaintiff and/or Plaintiffs’
employers.
FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff failed to plead any basis for claims of misrepresentation, deliberate concealment,
or fraud against AII Acquisition and have failed to plead any such claims with specificity as
required by the CPLR.
FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
AII Acquisition is entitled to rely on the learned intermediary defense.
FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ employers, their agents, servants, employees and/or directors failed to act in a
manner consistent with an employer's non-delegable duties as established by Occupational
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Safety & Health Administration and the New York State Department of Labor, thus proximately
causing the alleged injuries and damages, if any, claimed by the Plaintiff in this case. Such
failure on the part of Plaintiffs’ employers includes, but is not limited to:
(a) Failure to adequately train the Plaintiff on how to safely utilize equipment, as an
ordinary prudent employer would have done in similar circumstances;
(b) Failure to adequately disseminate product information as to the safe use of equipment
as an ordinary prudent employer would have done in like or similar circumstances;
(c) Failure to timely establish a written respiratory protection program;
(d) Failure to provide properly trained supervisors for the Plaintiffs’ work crews;
(e) Failure to provide appropriate ventilation equipment and respiratory protection
equipment; and
(f) Failure to provide proper filtering and monitoring devices for air-fed respiratory
protection equipment.
FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs are barred from maintaining this action against AII Acquisition under the
provisions of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et. seq.
FORTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs may not maintain their claims as they have failed to exhaust their administrative
remedies.
CROSS-CLAIMS FOR CONTRIBUTION
AII Acquisition hereby makes claim for contribution against each and every other
Defendant in this action.
CROSS-CLAIMS FOR INDEMNIFICATION
While denying liability to Plaintiff(s) as well as the damages, death, and injuries as
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alleged, if AII Acquisition is found liable to the Plaintiff for damages by reason of the alleged
acts complained of, AII Acquisition’s alleged negligence was merely constructive, technical, and
passive or vicarious, and any alleged injuries, death, and damages arose from the direct and
primary negligence, strict liability, breach of contract and implied warranties of the Co-
Defendants listed in this action.
ANSWER TO ALL CROSS CLAIMS
AII Acquisition answers all cross-claims of co-defendants, saying:
1. All cross-claims for contribution alleged are denied.
2. All cross-claims for indemnification are denied.
WHEREFORE, Defendant, AII Acquisition, requests judgment in its favor dismissing
the Complaint and granting judgment in favor against all Co-Defendants for all or part of any
sum awarded in favor of the Plaintiff and against AII Acquisition, and for such other and further
relief which as to this Court may seem just and proper.
Dated: February 2, 2023
Syracuse, New York
MCGIVNEY KLUGER CLARK & INTOCCIA, P.C.
By:___________________________
Justin D. Howland, Esq.
Attorneys for Defendant
AII Acquisition, LLC
100 Madison Street, Suite 1640
Syracuse, New York 13202
Tel: (315) 473-9648
To Joseph W. Belluck, Esq.
Belluck & Fox, LLP
546 5th Ave, 5th Floor
New York, New York 10036
Tel: (212) 681-1575
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF ONONDAGA)
The undersigned, an attorney admitted to practice in the Courts of New York State,
shows:
Deponent is a Partner with the firm MCGIVNEY KLUGER CLARK & INTOCCIA, P.C.,
counsel for the Defendant, AII Acquisition, in the within action; deponent has read the foregoing
Answer and knows the contents thereof; the same is true to deponent’s own knowledge, except
as to the matters therein stated to be alleged on information and belief, and that as to those
matters deponent believes it to be true. This verification is made by deponent and not by
Defendant because Defendant has offices outside of the County of Onondaga where the deponent
maintains his office.
Dated: February 2, 2023
Syracuse, New York
MCGIVNEY KLUGER CLARK & INTOCCIA, P.C.
By:___________________________
Justin D. Howland, Esq.
Attorneys for Defendant
AII Acquisition, LLC
100 Madison Street, Suite 1640
Syracuse, New York 13202
Tel: (315) 473-9648
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SSUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
___________________________________________
ROGER PAUL SPEZIO, SR. AND KATHLEEN SPEZIO,
PLAINTIFFS, Index No.:
Index No.: EF2023-99
V.
3M COMPANY, ET AL.,
DEFENDANTS.
____________________________________________
VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES, CROSS-CLAIMS, AND
ANSWER TO CROSS-CLAIMS TO PLAINTIFFS’ VERIFIED COMPLAINT
Attorneys for Defendant:
AII ACQUISITION, LLC
MCGIVNEY KLUGER CLARK & INTOCCIA, P.C.
COUNSELORS AT LAW
100 Madison Street Suite 1640
Syracuse, New York 13202
(315) 473-9648
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Preview
FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER ___________________________________________ AII ACQUISITION, LLC’S VERIFIED ANSWER WITH ROGER PAUL SPEZIO, SR. AND KATHLEEN SPEZIO, AFFIRMATIVE DEFENSES, CROSS-CLAIMS, AND PLAINTIFFS, ANSWER TO CROSS-CLAIMS TO PLAINTIFFS’ VERIFIED V. COMPLAINT 3M COMPANY, ET AL., Index No.: EF2023-99 DEFENDANTS. ____________________________________________ Defendant, AII Acquisition, LLC, improperly pled as “AII Acquisition Corporation, LLC, Individually and as Successor-in-Interest to Athlone Industries, Inc. and Holland Furnace Company” (hereinafter “AII Acquisition”) for its Verified Answer to Plaintiffs’ Verified Complaint (hereinafter “the Complaint”), by its attorneys, MCGIVNEY KLUGER CLARK & INTOCCIA, P.C., respectfully alleges and shows to the Court, upon information and belief: 1. As to the allegations in the paragraph designated “8” of the Complaint, admits that AII Acquisition is a duly organized foreign corporation; denies each and every other allegation in said paragraph. 2. Denies any knowledge or information sufficient to form a belief as to the allegations contained in the paragraphs designated “1,” “6,” “7,” “9,” “10,” “11,” “12,” “13,” “14,” “15,” “16,” “17,” “18,” “19,” “20,” “21,” “22,” “23,” “24,” “25,” “26,” “27,” “28,” “29,” “30,” “31,” “32,” “33,” “34,” “35,” “36,” “37,” “38,” “39,” “40,” “41,” “42,” “43,” “44,” “45,” “46,” “47,” “48,” “49,” “50,” “51,” “52,” “53,” “54,” “55,” “56,” “57,” “58,” “59,” “60,” “61,” “62,” “63,” “64,” “65,” “66,” and “67,” of the Complaint. 3. Denies each and every allegation contained in paragraphs designated “2,” “3,” “68,” “72,” “73,” “74,” “75,” “76,” “80,” “81,” “82,” “83,” “84,” “85” “89,” “90,” “93,” “94,” 1 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 “95,” “96,” “97” “99,” “100,” “102,” “103,” “104,” “105,” “106,” “107,” “108,” “109,” “110,” “111,” “112,” “113,” “114,” “116,” “117,” “121,” “126,” “127,” “131,” “132,” “134,” “137,” “139,” “140,” “141,” “142,” “143,” “146,” “147,” “152,” “153,” “154,” “155,” “156,” “157,” “159, “161,” “162,” “163, ” “164,” “165,” “166,” “169,” “171,” “172,” “176,” “178,” “179,” “182,” “184,” and “191” of the Complaint, insofar as they pertain in any way to AII Acquisition; except denies that Plaintiff, Roger Paul Spezio, Sr. (hereinafter “Plaintiff”), was injured as alleged, and further denies Plaintiff and Co-Plaintiff, Katheen Spezio (hereinafter “Plaintiff Spouse,” collectively “Plaintiffs”), incurred damages as alleged; denies knowledge or information sufficient to form a belief as to the remaining allegations contained in said paragraphs; and refers all questions of law to this Court for determination at the time of trial. 4. Denies each and every allegation contained in paragraphs designated “5,” “69,” “70,” “71,” “78,” “79,” “87,” “88,” “92,” “115,” “119,” “122,” “123,” “124,” “125,” “129,” “130,” “133,” “135,” “136,” “148,” “149,” “150,” “151,” “160,” “167,” “168,” “170,” “177,” “180,” “181,” “183,” “185,” and “186” of the Complaint, insofar as they pertain in any way to AII Acquisition; denies knowledge or information sufficient to form a belief as to the remaining allegations contained in said paragraphs; and refers all questions of law to this Court for determination at the time of trial. 5. Denies each and every allegation contained in the paragraphs designated “4,” “98,” “118,” “138,” “145,” “173,” “175,” and “188” of the Complaint. 6. Denies any knowledge or information sufficient to form a belief as to the allegations contained in the paragraph designated “190” of the Complaint; and refers all questions of law to this Court for determination at the time of trial. 2 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 7. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “76” in denying paragraph designated “77.” 8. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “85” in denying paragraph designated “186.” 9. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “90” in denying paragraph designated “91.” 10. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “100” in denying paragraph designated “101.” 11. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “119” in denying paragraph designated “120.” 12. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “127” in denying paragraph designated “128.” 13. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “143” in denying paragraph designated “144.” 14. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “157” in denying paragraph designated “158.” 3 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 15. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “173” in denying paragraph designated “174.” 16. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “186” in denying paragraph designated “187.” 17. Defendant, AII Acquisition, herein repeats, reiterates, and realleges, each and every answer heretofore made to paragraphs designated “1” through “188” in denying paragraph designated “189.” 18. Defendant, AII Acquisition denies each and every other allegation contained in the Complaint not heretofore specifically admitted. FIRST SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ Complaint fails to state a cause of action against AII Acquisition. SECOND SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ Complaint fails to state a claim against AII Acquisition for which relief may be granted. THIRD SEPARATE AFFIRMATIVE DEFENSE Any injury that Plaintiff(s) may have suffered was caused by her sole negligence and/or negligence properly imputed to Plaintiff(s). FOURTH SEPARATE AFFIRMATIVE DEFENSE The conduct of the Plaintiff and the conduct imputed to Plaintiff was willful, wanton and/or reckless. FIFTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff assumed the risk of conduct which caused any alleged damages. Insofar as the 4 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 complaints of each cause of action therein, considered separately, allege that a cause of action occurred, the recovered damages for personal injuries and the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributed to Plaintiff. SIXTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff assumed the risk of her conduct and/or conduct improperly imputed to AII Acquisition. SEVENTH SEPARATE AFFIRMATIVE DEFENSE Negligence, if any, was caused by the acts or omissions of third parties over whom AII Acquisition exercised no control and had no right to exercise control. EIGHTH SEPARATE AFFIRMATIVE DEFENSE AII Acquisition comported with the applicable state of the art in the sale and/or distribution of products during the time period(s) relevant to the Plaintiffs’ Complaint. NINTH SEPARATE AFFIRMATIVE DEFENSE AII Acquisition reserves the right to amend its Answer and adopt additional defenses which have been or will be served by other defendants in this action. In addition, AII Acquisition will rely upon further defenses which become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend its Answer for the purposes of asserting any such additional defenses. TENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ actions are barred by the doctrines of estoppel, waiver, and laches. ELEVENTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of this action. TWELFTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks jurisdiction over AII Acquisition. 5 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE The venue of this action is improper and AII Acquisition reserves the right to move for transfer. FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE AII Acquisition is erroneously named in the Complaint. FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE The incident and the injuries and damages complained of were caused by the unauthorized, unintended, or improper use of the products complained of and as a result of a failure to exercise reasonable and ordinary care, caution or prudence by other Co-Defendants, persons, parties, or entities over whom AII Acquisition had no control or right of control. Plaintiff has been contributorily negligent in proximately causing any alleged injury. SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE Applicable laws, rules, statutes or regulations including the relevant statute of limitations controlling or requiring the institution of suit within a certain period of time were not complied with by the plaintiffs, and accordingly, the Plaintiffs’ claims are barred as a matter of law. SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE Although AII Acquisition denies the allegations of the Plaintiff as to injuries, damages, and death as alleged, these injuries and damages, if any, were caused by the intervening acts and/or superseding negligence of other Co-Defendants, persons, parties, or entities over whom AII Acquisition had no control or right of control. EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE Inasmuch as the Plaintiff is unable to identify the manufacturer of product(s) which allegedly caused the injuries to Plaintiff(s), Plaintiffs’ claims for relief cannot be granted since the granting of such relief in the absence of product identification would contravene AII 6 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 Acquisition’s constitutional right to procedural due process of law and equal protection as preserved by the United States Constitution and the Constitution of the State of New York as well as contravene AII Acquisition’s constitutional right to protect against the taking of private property for public use without just compensation as preserved by the United States Constitution and Constitution of the State of New York. NINETEENTH SEPARATE AFFIRMATIVE DEFENSE AII Acquisition has complied with all applicable laws, regulations, and standards at all relevant times during Plaintiffs’ alleged injuries. AII Acquisition denies that it was guilty of any malicious or intentional conduct with would permit the award of judgment for punitive damages. TWENTIETH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ claims for punitive damages are barred by the due process clause of the Fourteenth Amendment to the United States Constitution. TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ claims for punitive damages are barred by the Eighth Amendment of the United States Constitution applied to the states by the Fourteenth Amendment, prohibiting the imposition of excessive fines. TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ claims for punitive damages are barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment. TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE The Order of the Bankruptcy Court which prevents AII Acquisition from joining indispensable parties who had declared bankruptcy, has the effect of requiring AII Acquisition to defend this action without those other companies as co-defendant’s and prevents the Court from 7 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 being able to hear and adjudge all relevant evidence in regard to Plaintiffs’ claims and therefore denies AII Acquisition of the constitutional right to due process under the Fourteenth Amendment. TWENTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE Any injuries, death and/or damages allegedly sustained by Plaintiff were naturally and proximately caused by the sole negligence of Plaintiff. TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE If applicable, any Administrator(trix)/Executor(trix) of the Estate of Plaintiff deriving their cause of action from the injuries, death and damages allegedly sustained by Plaintiff at the time(s) and place(s) referred to in the Complaint, is subject to the defenses herein set forth and by this reference incorporated. TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE Any Plaintiff having a derivative cause of action, is barred from recovery by reason of the contributory negligence of Plaintiff, and as a nullity due to Plaintiff alleged injury, if any, arising prior to the grounds under which the derivative Plaintiff may seek recovery accruing. TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE To the extent that any injury and/or death relating to Plaintiff occurred in the context of an employer-employee relationship with AII Acquisition, if any, claims for said injuries and/or death are barred by the Workers’ Compensation Act. TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE The purchaser(s) of AII Acquisition’s product(s) and/or services and all third-party beneficiaries of any warranties, express or implied, relating to the product(s) or services failed to provide notice of the alleged breaches of warranty to AII Acquisition pursuant to the applicable provision(s) of the Uniform Commercial Code. 8 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE To the extent that Plaintiff is alleged to have sustained injuries from the use of a product manufactured, supplied, applied, or removed by AII Acquisition, alleged to contain asbestos, which is expressly denied, Plaintiff, other Co-Defendants, parties, persons, or entities, not under the control or right of control of AII Acquisition, misused, abused, misapplied, and otherwise mishandled the product(s) alleged to contain asbestos material. Therefore, the amount of damages which may be recoverable must be diminished by the proportion which said misuse, abuse, misapplication, and mishandling bears to the conduct which caused any alleged damage or injury. THIRTIETH SEPARATE AFFIRMATIVE DEFENSE To the extent that Plaintiff was exposed to any product containing asbestos as a result of conduct by AII Acquisition, which is expressly denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiff may have developed, and not actionable at law or equity. THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and indispensable parties. THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE Plaintiff contributed to the illness alleged in the Complaint, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications, or drugs. THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE Upon information and belief, some or all of the causes of action set forth in the Complaint may not be maintained because of collateral estoppel. 9 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE Upon information and belief, some or all of the causes of action set forth in the Complaint may not be maintained because of discharge in bankruptcy. THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE Upon information and belief, some or all of the causes of action set forth in the Complaint may not be maintained because of res judicata. THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE To the extent any Plaintiff herein brings suit in a representative capacity, such Plaintiff has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estates Powers and Trusts Law §5-41. THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE If Plaintiff is successful on her claims for damages and liability by reason of the alleged acts complained of, such an amount must be decreased by the amount Plaintiff has received or Plaintiff will receive from any collateral source(s). THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE There is a lack of jurisdiction over the person of AII Acquisition by reason of insufficiency of process and insufficiency of service of process. AII Acquisition therefore reserves the right to move to dismiss the Complaint. THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE AII Acquisition is immune from liability for any conduct performed in conformance with specifications mandated by Plaintiff’ employer(s). FORTIETH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ causes of action are precluded and pre-empted by OSHA regulations. 10 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE This action does not fall within one or more of the exceptions set forth in CPLR § 1602, and while AII Acquisition expressly denies any and all allegations in Plaintiffs’ Complaint as against it, in the event AII Acquisition is found to have any liability in this matter, it cannot be held responsible for more than its pro rata share of any verdict. FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE Any verdict or judgment against any defendant, including AII Acquisition, is entitled to a reduction pursuant to N.Y. General Obligations Law § 15-108, on the basis of any and all prior settlements, compromises, claims, and other collateral sources. FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE AII Acquisition owed no duty or duties of care to Plaintiff(s). FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE At all times relevant, Plaintiff and Plaintiffs’ employers were sophisticated users of asbestos, and therefore, AII Acquisition owed no duty of care to warn Plaintiff and/or Plaintiffs’ employers. FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff failed to plead any basis for claims of misrepresentation, deliberate concealment, or fraud against AII Acquisition and have failed to plead any such claims with specificity as required by the CPLR. FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE AII Acquisition is entitled to rely on the learned intermediary defense. FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ employers, their agents, servants, employees and/or directors failed to act in a manner consistent with an employer's non-delegable duties as established by Occupational 11 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 Safety & Health Administration and the New York State Department of Labor, thus proximately causing the alleged injuries and damages, if any, claimed by the Plaintiff in this case. Such failure on the part of Plaintiffs’ employers includes, but is not limited to: (a) Failure to adequately train the Plaintiff on how to safely utilize equipment, as an ordinary prudent employer would have done in similar circumstances; (b) Failure to adequately disseminate product information as to the safe use of equipment as an ordinary prudent employer would have done in like or similar circumstances; (c) Failure to timely establish a written respiratory protection program; (d) Failure to provide properly trained supervisors for the Plaintiffs’ work crews; (e) Failure to provide appropriate ventilation equipment and respiratory protection equipment; and (f) Failure to provide proper filtering and monitoring devices for air-fed respiratory protection equipment. FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs are barred from maintaining this action against AII Acquisition under the provisions of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et. seq. FORTY-NINTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs may not maintain their claims as they have failed to exhaust their administrative remedies. CROSS-CLAIMS FOR CONTRIBUTION AII Acquisition hereby makes claim for contribution against each and every other Defendant in this action. CROSS-CLAIMS FOR INDEMNIFICATION While denying liability to Plaintiff(s) as well as the damages, death, and injuries as 12 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 alleged, if AII Acquisition is found liable to the Plaintiff for damages by reason of the alleged acts complained of, AII Acquisition’s alleged negligence was merely constructive, technical, and passive or vicarious, and any alleged injuries, death, and damages arose from the direct and primary negligence, strict liability, breach of contract and implied warranties of the Co- Defendants listed in this action. ANSWER TO ALL CROSS CLAIMS AII Acquisition answers all cross-claims of co-defendants, saying: 1. All cross-claims for contribution alleged are denied. 2. All cross-claims for indemnification are denied. WHEREFORE, Defendant, AII Acquisition, requests judgment in its favor dismissing the Complaint and granting judgment in favor against all Co-Defendants for all or part of any sum awarded in favor of the Plaintiff and against AII Acquisition, and for such other and further relief which as to this Court may seem just and proper. Dated: February 2, 2023 Syracuse, New York MCGIVNEY KLUGER CLARK & INTOCCIA, P.C. By:___________________________ Justin D. Howland, Esq. Attorneys for Defendant AII Acquisition, LLC 100 Madison Street, Suite 1640 Syracuse, New York 13202 Tel: (315) 473-9648 To Joseph W. Belluck, Esq. Belluck & Fox, LLP 546 5th Ave, 5th Floor New York, New York 10036 Tel: (212) 681-1575 13 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF ONONDAGA) The undersigned, an attorney admitted to practice in the Courts of New York State, shows: Deponent is a Partner with the firm MCGIVNEY KLUGER CLARK & INTOCCIA, P.C., counsel for the Defendant, AII Acquisition, in the within action; deponent has read the foregoing Answer and knows the contents thereof; the same is true to deponent’s own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. This verification is made by deponent and not by Defendant because Defendant has offices outside of the County of Onondaga where the deponent maintains his office. Dated: February 2, 2023 Syracuse, New York MCGIVNEY KLUGER CLARK & INTOCCIA, P.C. By:___________________________ Justin D. Howland, Esq. Attorneys for Defendant AII Acquisition, LLC 100 Madison Street, Suite 1640 Syracuse, New York 13202 Tel: (315) 473-9648 14 of 15 FILED: ULSTER COUNTY CLERK 02/02/2023 11:26 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/02/2023 SSUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER ___________________________________________ ROGER PAUL SPEZIO, SR. AND KATHLEEN SPEZIO, PLAINTIFFS, Index No.: Index No.: EF2023-99 V. 3M COMPANY, ET AL., DEFENDANTS. ____________________________________________ VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES, CROSS-CLAIMS, AND ANSWER TO CROSS-CLAIMS TO PLAINTIFFS’ VERIFIED COMPLAINT Attorneys for Defendant: AII ACQUISITION, LLC MCGIVNEY KLUGER CLARK & INTOCCIA, P.C. COUNSELORS AT LAW 100 Madison Street Suite 1640 Syracuse, New York 13202 (315) 473-9648 15 of 15