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FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022
NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
EMILIO and MARTA TUCCI,
VERIFIED ANSWER TO
Plaintiffs, PLAINTIFFS’ VERIFIED
COMPLAINT
v.
ASHLAND, LLC, et al., Index No. 159245/2022
Defendants.
Defendant ICC Chemical Corporation (“ICC”), by and through its attorneys The Basil
Law Group, P.C. hereby responds to Plaintiffs’ Verified Complaint in the above captioned
matter as follows:
JURISDICTION AND VENUE
1-2. Denied. The allegations contained in paragraphs 1 and 2 of Plaintiffs’ Verified
Complaint constitute conclusions of law to which no responsive pleading is required. To the
extent that the allegations in these paragraphs may be construed to make factual allegations,
after reasonable investigation, ICC is without knowledge or information sufficient to form a
belief regarding the truth of the factual averments contained in paragraphs 1 and 2 of Verified
Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict
proof thereof, if deemed material, is demanded at trial.
PARTIES
3. Denied. After reasonable investigation, ICC is without knowledge or
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information sufficient to form a belief regarding the truth of the factual averments contained in
paragraph 3 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at
issue and strict proof thereof, if deemed material, is demanded at trial.
4-5. The allegations contained in paragraphs 4 and 5 of Plaintiffs’ Verified Complaint
are not directed to ICC and, therefore, no response is required by ICC
6. Admitted in part, denied in part. It is admitted only that ICC is a business entity.
The rest of this averment is denied to the extent it seeks conclusions of law to which no
responsive pleading is required. ICC specifically denies that it, or any of its predecessors,
exposed Mr. Tucci to any toxic substances in the course of his alleged employment.
7-12. The allegations contained in paragraphs 7 through 12 of Plaintiffs’ Verified
Complaint are not directed to ICC and, therefore, no response is required by ICC.
FACTS COMMON TO ALL COUNTS
13-14. Denied. The averments contained in paragraphs 13 and 14 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no response is required. By way of
further response, ICC specifically denies that it committed any liability-inducing acts or
omissions as alleged in Plaintiffs’ Verified Complaint or otherwise, and specifically denies
acting by or through any agents, servants or employees of ICC acting within the course and
scope of their employment or on the business of ICC. Further, insofar as Plaintiffs have not
identified or described any alleged agents, servants or employees in the Complaint, ICC, after
reasonable investigation, is without knowledge or information sufficient to form a belief
regarding the truth of said averments, wherefore same are deemed denied and at issue and
strict proof thereof, if deemed material, is demanded at trial.
.
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15-16. Denied. The allegations contained in paragraphs 15 and 16 of Plaintiffs’ Verified
Complaint constitute conclusions of law to which no responsive pleading is required. To the extent
that the allegations in these paragraphs may be construed to make factual allegations, after
reasonable investigation, ICC is without knowledge or information sufficient to form a belief
regarding the truth of the factual averments contained in paragraphs 15 through 16 of
Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof
thereof, if deemed material, is demanded at trial.
17. Denied. After reasonable investigation, ICC is without knowledge or information
sufficient to form a belief regarding the truth of the factual averments contained in paragraph 17
of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict
proof thereof, if deemed material, is demanded at trial.
18-21. Denied. The allegations contained in paragraphs 18 through 21 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. To
the extent that the allegations in these paragraphs may be construed to make factual allegations,
after reasonable investigation, ICC is without knowledge or information sufficient to form a
belief regarding the truth of the factual averments contained in paragraphs 18 through 21 of
Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict
proof thereof, if deemed material, is demanded at trial.
COUNT I – NEGLIGENCE & GROSS NEGLIGENCE
22. ICC incorporates by reference its above responses to paragraphs 1 through 21 of
Plaintiffs’ Verified Complaint as though same were set forth herein at length.
23-30. Denied. The allegations contained in paragraphs 23 through 30 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. To
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the extent that the allegations in these paragraphs may be construed to make factual allegations, it
is specifically denied that ICC manufactured, refined, designed, produced, processed,
compounded, converted, packaged, sold, distributed, marketed, re-labeled, supplied and/or
otherwise placed into the stream of commerce products containing benzene that were and/or that
ICC knew or reasonably should have known were carcinogenic, leukemogenic, inherently
defective, ultra-hazardous, dangerous, deleterious, poisonous or otherwise harmful to the Plaintiffs
or persons similarly situated.
31-36. Denied. The allegations contained in paragraphs 31 through 36 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. It
is specifically denied that ICC breached any duties. To the extent that the allegations in these
paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is
without knowledge or information sufficient to form a belief regarding the truth of the factual
averments contained in paragraphs 31 through 36 of Plaintiffs’ Verified Complaint and, therefore,
same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at
trial.
WHEREFORE, ICC respectfully demands judgment in its favor and against Plaintiffs
dismissing Plaintiffs’ Verified Complaint, with prejudice, together with an award of costs and
attorney's fees in favor of ICC, along with such other and further legal and/or equitable relief as
the Court may deem just and proper.
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COUNT II – BREACH OF IMPLIED WARRANTY
37. ICC incorporates by reference its above responses to paragraphs 1 through 36 of
Plaintiffs’ Verified Complaint as though same were set forth at length herein.
38-44. Denied. The allegations contained in paragraphs 38 through 44 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. To
the extent that the allegations in these paragraphs may be construed to make factual allegations, it
is specifically denied that any such warranties as alleged were made or given by ICC. It is also
specifically denied that ICC breached any such warranties and it is specifically denied that any of
ICC's products were dangerous, defective, deleterious, poisonous, carcinogenic, unsafe or unfit
for use for their intended purposes, unmerchantable, or ultrahazardous. To the contrary, said
products would have complied with any and all warranties, and were safe and fit for their intended
purposes when used in their normal, foreseeable and expected manner. To the extent that the
remaining allegations in these paragraphs may be construed to make factual allegations, after
reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding
the truth of the factual averments contained in paragraphs 38 through 44 of Plaintiffs’ Verified
Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed
material, is demanded at trial.
WHEREFORE, ICC respectfully demands judgment in its favor and against Plaintiffs dismissing
Plaintiffs’ Verified Complaint, with prejudice, together with an award of costs and attorney's fees in
favor of ICC, along with such other and further legal and/or equitable relief as the Court may deem just
and proper.
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COUNT III - STRICT LIABILITY
45. ICC incorporates by reference its above responses to paragraphs 1 through 44 of
Plaintiffs’ Verified Complaint as though same were set forth herein at length.
46-49. Denied. The allegations contained in paragraphs 46 through 49 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. To
the extent that the allegations in these paragraphs may be construed to make factual allegations,
after reasonable investigation, ICC is without knowledge or information sufficient to form a
belief regarding the truth of the factual averments contained in paragraphs 46 through 49 of
Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict
proof thereof, if deemed material, is demanded at trial.
50 (a-r). Denied. The allegations contained in paragraph 50 (a-r) of Plaintiffs’ Verified
Complaint constitute conclusions of law to which no responsive pleading is required. To the
extent that the allegations in this paragraph may be construed to make factual allegations, after
reasonable investigation, ICC is without knowledge or information sufficient to form a belief
regarding the truth of the factual averments contained in paragraph 50 (a-r) of Plaintiffs’
Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof,
if deemed material, is demanded at trial.
51-54. Denied. The allegations contained in paragraphs 51 through 54 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. To
the extent that the allegations in these paragraphs may be construed to make factual allegations,
after reasonable investigation, ICC is without knowledge or information sufficient to form a
belief regarding the truth of the factual averments contained in paragraphs 51 through 54 of
Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict
proof thereof, if deemed material, is demanded at trial.
WHEREFORE, ICC respectfully demands judgment in its favor and against Plaintiffs
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dismissing Plaintiffs’ Verified Complaint, with prejudice, together with an award of costs and
attorney's fees in favor of ICC, along with such other and further legal and/or equitable relief as
the Court may deem just and proper.
COUNT IV–FRAUDULENT MISREPRESENTATION
55. ICC incorporates by reference its above responses to paragraphs 1 through 54 of
Plaintiffs’ Verified Complaint as though same were set forth herein at length.
56-66. Denied. The allegations contained in paragraphs 56 through 66 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. It
is specifically denied that ICC concealed or withheld any information related to potential dangers
of benzene exposure. To the extent that the remaining allegations in these paragraphs may be
construed to make factual allegations, after reasonable investigation, ICC is without knowledge or
information sufficient to form a belief regarding the truth of the factual averments contained in
paragraphs 56 through 66 of Plaintiffs’ Verified Complaint and, therefore, same are deemed
denied and at issue and strict proof thereof, if deemed material, is demanded at trial.
67-90. The allegations contained in paragraphs 67 through 90 of Plaintiffs’ Verified
Complaint are not directed to ICC and, therefore, no response is required by ICC.
91-98. Denied. The allegations contained in paragraphs 91 through 98 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. To
the extent that the allegations in these paragraphs may be construed to make factual allegations, it
is specifically denied that ICC committed any of the alleged acts, omissions, failures or other
alleged liability-inducing conduct, that it had knowledge of any of the matters alleged in
paragraphs 91 through 98 of Plaintiffs’ Verified Complaint and, therefore, same are deemed
denied and at issue and strict proof thereof, if deemed material, is demanded at trial.
99-106. The allegations contained in paragraphs 99 through 106 of Plaintiffs’ Verified
Complaint are not directed to ICC and, therefore, no response is required by ICC.
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107-117. Denied. The allegations contained in paragraphs 107 through 117 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. To
the extent that the allegations in these paragraphs may be construed to make factual allegations, it
is specifically denied that ICC committed any of the alleged acts, omissions, failures or other
alleged liability-inducing conduct, that it had knowledge of any of the matters alleged in
paragraphs 107 through 117 of Plaintiffs’ Verified Complaint and that it failed to warn, instruct,
train or advise the Plaintiff, his employers and/or coworkers regarding exposure to benzene. It is
also denied that ICC had any knowledge that Plaintiff, his employers and/or co-workers and/or
others similarly situated did not know of the proper and necessary procedures and practices to
prevent or minimize alleged benzene exposure.
WHEREFORE, ICC respectfully demands judgment in its favor and against Plaintiffs
dismissing Plaintiffs’ Verified Complaint, with prejudice, together with an award of costs and
attorney's fees in favor of ICC, along with such other and further legal and/or equitable relief as the
Court may deem just and proper.
COUNT V-LOSS OF CONSORTIUM
118. ICC incorporates by reference its above responses to paragraphs 1 through 117 of
Plaintiffs’ Verified Complaint as though same were set forth herein at length.
119-22. Denied. The allegations contained in paragraphs 119 through 122 of Plaintiffs’
Verified Complaint constitute conclusions of law to which no responsive pleading is required. To
the extent that the allegations in these paragraphs may be construed to make factual allegations,
after reasonable investigation, ICC is without knowledge or information sufficient to form a
belief regarding the truth of the factual averments contained in paragraphs 119 through 122 of
Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict
proof thereof, if deemed material, is demanded at trial.
WHEREFORE, ICC demands judgment in its favor and against Plaintiffs and the
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dismissal of Plaintiffs’ claims, with prejudice, together with an award of costs and attorney's fees
in favor of ICC along with such other further legal and/or equitable relief as the Court may deem
just and proper.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the expiration of the statute(s) of limitations applicable to
such claims and/or any applicable statute(s) of repose and, therefore, Plaintiffs are not entitled to
recover against ICC.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
The acts and/or omissions and/or products of other individuals or entities over whom
ICC had no right or duty to control, or exercised no control, constitute intervening or
superseding causes of any injuries and damages allegedly sustained by Plaintiffs, which injuries
and damages are, in any event, denied.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Any injuries sustained by Plaintiffs were caused in whole or in part by the contributory
negligence, comparative negligence and/or culpable conduct of said Plaintiffs and not as a result of
the contributory negligence and/or culpable conduct on the part of the ICC or any Party under the
control of ICC.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred or limited, in whole or in part, by Plaintiffs’ own negligence
in failing to exercise due and proper care under the circumstances, which negligence caused or
contributed to Plaintiffs’ injuries and damages, if any, which injuries and damages are, in any
event, denied.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred or limited, in whole or in part, because any injuries, damages
and/or losses to Plaintiffs as alleged in the Complaint were caused, in whole or in part, or
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proximately caused, by the fault, negligence or other liability-inducing acts and/or omissions of
Plaintiffs or others which, by comparison, were greater than any alleged liability-inducing conduct
by ICC, which conduct is, in any event, denied, and, therefore, Plaintiffs’ claims are barred or
must be reduced, limited and/or mitigated.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Plaintiffs have not suffered any compensable injuries or damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs have no standing to assert any causes of action or claims against ICC.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
At all times material hereto, ICC acted properly, reasonably and with due and reasonable
care and did not breach any duties owed to Plaintiffs and performed each and every duty owed to
Plaintiffs, if any.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
There exists no proximate cause between Plaintiffs’ alleged injuries and damages and any
alleged acts or omissions attributable to ICC or any product(s) manufactured, sold or supplied by
ICC and, therefore, Plaintiffs are not entitled to recover from ICC.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
ICC asserts that any injuries, losses and/or damages to Plaintiffs, which injuries and
damages are specifically denied, are the result of one or more pre-existing conditions that were
unrelated to any acts, omissions, conduct, or product(s) of ICC.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
ICC cannot be liable to Plaintiffs to the extent that any injuries, losses and/or damages to
Plaintiffs as alleged were caused by the unauthorized, unintended, unanticipated or improper use
and/or intentional or knowing misuse of any products of ICC which may be found to have caused
and/or contributed to Plaintiffs’ alleged injuries, losses and/or damages, if any.
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AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
This court lacks jurisdiction over the subject matter of Plaintiffs’ Verified Complaint
which should therefore be dismissed.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ Verified Complaint should be dismissed due to insufficient specificity in
pleading.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims should be dismissed because any products produced, distributed or
introduced into commerce by ICC were not defective, unreasonably dangerous or unfit for the
purpose or purposes for which they were intended, but were reasonably fit, suitable and safe for
their intended purpose.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
ICC cannot be liable for any injuries, losses or damages to Plaintiffs caused by material
and/or substantial alterations of any product(s) of ICC.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
ICC exercised no control over, and had no legal right or duty to control, the use or
manner of use, storage or handling of any of the products allegedly involved.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
ICC cannot be liable to Plaintiffs insofar as and/or to the extent that it had no legal duty to
provide Mr. Tucci with warnings or instructions concerning the proper and safe use or handling of
any product(s) allegedly causing or contributing to Plaintiffs’ alleged injuries, losses or damages,
if any.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
Insofar as, and to the extent that, any injuries, losses or damages to Plaintiffs were the
result, in whole or in part, of an ordinary disease of life, idiosyncratic reaction or some other
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circumstance, event or exposure, responsibility for damages to the extent thereof must be
apportioned and allocated, in whole or in part, to such cause(s) pursuant to § 433(a) of the
Restatement (Second) of Torts.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
Any claims for punitive damages are barred and/or limited by the constitutions of the State
of New York and of the United States of America. An award of punitive damages in this action
would violate the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred or limited, in whole or in part, by the applicable provisions of
the New York Worker's Compensation and/or Occupational Disease Statutes including, but not
limited to, the exclusive remedy provisions thereof.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, by virtue of the state of the art defense.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
To the extent that Plaintiffs seek to impose on ICC any duty under any state statutory or
common law which exceeds or is inconsistent with any duties imposed on ICC under any federal
or state law, including, but not limited to, the Occupational Safety and Health Act, the Interstate
Commerce Act, the Motor Carrier Act, the Hazardous Materials Transportation Act, the Federal
Hazardous Substances Labeling Act, the Federal Hazardous Substances Act, and/or any
regulations promulgated pursuant to any such acts, the imposition of such duty and any liability
on the part of ICC is barred by reason of the preemptive effect of such laws and regulations.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
To the extent that Plaintiffs seek to impose liability on ICC based on any labeling or other
matter which is regulated under and/or which has been approved or authorized pursuant to any
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federal labeling law or regulations promulgated thereunder, such claims are barred under the
doctrine of preemption.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
Insofar as, and to the extent that Plaintiffs, Plaintiffs’ employer and/or any other users or
handlers of the product(s) to which Plaintiffs were allegedly exposed had substantial expertise
and/or knowledge in the handling, use and storage of the types of product(s) which may have been
owned, possessed or supplied by ICC and to which Plaintiffs may have been exposed, and/or
were sophisticated or knowledgeable users who were aware, or should have been aware, of the
potential dangers, if any, of the handling, use and/or storage of such product(s), ICC owed no
duty to Plaintiffs with respect to such product(s).
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
ICC cannot be held liable to Plaintiffs insofar as, and to the extent that, any product(s)
which may have caused or contributed to any alleged injuries, losses or damages to Plaintiffs was
not designed, manufactured, sold, distributed or supplied by ICC.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
Insofar as, and to the extent that, any product(s) of ICC which may have caused or
contributed to any injuries, losses or damages to Plaintiffs alleged was supplied to third parties in
an unfinished state and was (were) packaged, repackaged, reassembled and/or reformulated by
Plaintiffs or others, ICC cannot be liable for any dangerous condition in connection with the
packaged, repackaged, reassembled, reformulated or unfinished product(s), including warnings,
for which ICC is not responsible.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred since at the time of the sale, manufacture and distribution by
ICC of the alleged chemical products, if any, there was no information or knowledge generally
available in the chemical products industry by which ICC could have reasonably become aware of
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any potential risk of contraction of the diseases alleged in Plaintiffs’ Verified Complaint from the
use of its product(s) when used for the purposes for which said products were intended to be
used.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the absence of privity between Plaintiffs and ICC.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
Plaintiffs were not a user or consumer of any product(s) supplied by ICC and, therefore,
ICC cannot be strictly or otherwise liable for any injuries or damages caused by any such
product(s).
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
Any product(s) of ICC to which Plaintiffs was allegedly exposed was (were) not
defective in design or formulation because at the time any such product(s) would have left the
control of ICC, practical and technically feasible designs or formulations were not available that
would have prevented the harm for which Plaintiffs seek to recover damages in this action
without substantially impairing the usefulness or intended purpose of the product(s).
AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the Doctrine of Spoliation.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ damages, if any, in whole or in part, are speculative and not actionable.
AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
No acts, omissions or products attributable to ICC caused Plaintiffs to be exposed to
greater than normal background or safe levels of chemicals and substances which could have
caused Plaintiffs to contract any of the diseases, injuries or damages alleged.
AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims for breach of express and/or implied warranties, if any, are precluded
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and/or limited, in whole or in part, by any exclusion, modifications, disclaimers and limitations
regarding liability, damages and/or the time for commencing a civil action in connection with the
sale and/or delivery of any of the alleged products and by Plaintiffs’ failure to comply with the
applicable provisions of the applicable laws and codes.
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, by virtue of the outweighing of any alleged
risks by the utility of ICC's product(s), the lack of a feasible alternative safer design at the time
of manufacture of such product(s), and ICC's lack of knowledge, actual or constructive, of any
risk of the types of injuries and damages allegedly suffered by Plaintiffs from the use of its
product(s).
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
ICC asserts that it is immune from claims of failure to inspect for or discover latent
defects in connection with any of the alleged products by reason of ICC's status in the chain of
distribution of such products.
AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims should be dismissed because Plaintiffs have failed to join indispensable
parties necessary for a just and entire adjudication of the issues.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims against ICC should be dismissed because Plaintiffs have failed to state a
cause of action by failing to identify with particularity which, if any, of ICC's products caused
Plaintiffs’ alleged injuries, where Plaintiffs used such products, and specifically when Plaintiffs
used or was exposed to such products.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims against ICC should be dismissed, in whole or in part, because Plaintiffs
failed to mitigate or take corrective action upon realizing exposure or potential exposure to ICC's
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alleged products.
AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
Plaintiffs are barred from maintaining this action against ICC to the extent that ICC was
not a seller or supplier of one or more of the products referred to in Plaintiffs’ Verified
Complaint. Moreover, even if it was a product seller or supplier, ICC did not have a reasonable
opportunity to inspect the product or products in a manner which would or should, in the exercise
of reasonable care, have revealed the existence of any defective condition which is in issue in this
case.
AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
ICC should be dismissed from all claims asserted in Plaintiffs’ Verified Complaint
because at all relevant times ICC fully performed and complied with all applicable federal and
state statutes, laws and regulations.
AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
Any duty to warn Plaintiffs of any risks and hazards associated with any products of ICC
was discharged by the providing of adequate warnings to Plaintiffs, Plaintiffs’ employer and/or
purchasers of said products and, therefore, the learned intermediary and sophisticated purchaser
doctrines bar recovery of any damages.
AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
To the extent that the products at issue in Plaintiffs’ Verified Complaint were not used in
the manner in which they were intended to be used and/or were used in a manner that was
abnormal and not reasonably foreseeable to ICC, such unintended, unexpected, unforeseeable
and abnormal use or misuse proximately caused or contributed to Plaintiffs’ alleged damages,
injuries and/or losses, if any.
AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims should be dismissed, in whole or in part, pursuant to the doctrine of
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estoppel.
AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims should be dismissed, in whole or in part, pursuant to the doctrine of
waiver.
AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims should be dismissed, in whole or in part, pursuant to the doctrine of
laches.
AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
ICC alleges that punitive damages may not be imposed for conduct which comports with
industry custom and standards.
AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, pursuant to the terms of any full or partial
release of Plaintiffs’ claims.
AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
Any damages or injuries as alleged were caused by an act or acts of God and act or acts of
government or acts or omissions of Plaintiffs or third parties over whom ICC had no control or
right of control, or a combination of the foregoing, and ICC exercised due care with respect to the
products alleged, taking into consideration the characteristics of such products in light of all
relevant facts and circumstances, and ICC took precautions against foreseeable risks or
omissions attributable to Plaintiffs or third parties and the consequences that could reasonably
result from such acts or omissions.
AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
If Plaintiffs have settled, or in the future settle with any other parties for the injuries, losses
and damages as alleged in Plaintiffs’ Verified Complaint, ICC asserts that it is entitled to a
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credit, pro rata or pro tanto, as appropriate, for any consideration received by Plaintiffs pursuant to
any release given by or on behalf of Plaintiffs or to the extent of any proportionate share of the
liability of any other defendants that may be attributable to such defendants.
AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claims against ICC are barred, in whole or in part, by the doctrine of
accord and satisfaction.
AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
In the event and to the extent that Plaintiffs’ employers failed to develop, implement and
maintain an appropriate Hazard Communication Program in accordance with the requirements of
29 C.F.R. § 1910.1200(e), such failure was the legal or proximate cause of Plaintiffs’ alleged
injuries, damages and losses, if any, and Plaintiffs’ claims against ICC are, therefore, barred.
AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
Plaintiffs were, at all relevant times, under the direct and exclusive supervision and control
of Plaintiffs’ alleged employers or others whose exclusive responsibility was to provide Plaintiffs
with a safe work environment including, but not limited to, providing Plaintiffs with proper safety
equipment and information.
AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
ICC incorporates by reference as if fully set forth herein at length the affirmative
defenses asserted or to be asserted by the other defendants to this action, and reserves the right to
rely upon such other and further affirmative defenses as are or may be asserted by the other
defendants to this action and/or any other defenses that may become available or apparent during
pre-trial proceedings and/or the trial of this matter and expressly reserves the right to amend its
Answer.
AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
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That, in the event Plaintiffs recover a verdict or judgment against ICC, then said verdict or
judgments must be reduced pursuant to CPLR §4545 (c) by those amounts which have been, or
will, with reasonable certainty, replace or indemnify Plaintiffs in whole or in part, for any past or
future claimed expenses or other economic loss, from any collateral source such as insurance.
AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
That if Plaintiffs sustained the injuries and/or damages complained of, all of which are denied
by ICC, said injuries and/or damages were caused in whole or in part by the conduct of one or more
parties for whose conduct ICC are not responsible, had no control over, or with whom ICC had no
legal relation.
AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
In accordance with CPLR §1601 et seq., the liability of ICC, if any, for non-economic loss is limited
to ICC' equitable share, determined in accordance with the relative culpability of all persons and/or
entities contributing to the total liability for non-economic loss, including parties and others over
whom Plaintiffs could have obtained personal jurisdiction with due diligence.
AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
That if Plaintiffs shall have a judgment and/or verdict in their favor over and against ICC, the
judgment and/or verdict shall be precluded, modified, offset and/or reduced by any and all sums or
consideration paid or promised to Plaintiff by any person, corporation or parties claimed to be liable
for the injuries and/or damages alleged in the Verified Complaint to the extent of the greater of either
sum or consideration paid or promised to Plaintiff or in the amount of the released tortfeasor's
equitable share of the liability and the damages in accordance with Article 15 of the General
Obligations Law§§ 15-105 and 15-108.
AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
That the injuries and damages to Plaintiffs were caused in whole or in part or were contributed to
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by the culpable conduct and want of care on the part of Plaintiffs and any such alleged damages
should be fully or partially diminished by said culpable conduct and want of care of the Plaintiffs
pursuant to CPLR Article 14 and 14-A.
Dated: February 6, 2023
New York New York 10001
THE BASIL LAW GROUP, P.C.
125 West 31st Street #19-B
New York New York 10001
(917) 994-9973
Attorneys for Defendant ICC Chemical Corporation
By:
Robert J. Basil
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Preview
FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EMILIO and MARTA TUCCI, VERIFIED ANSWER TO Plaintiffs, PLAINTIFFS’ VERIFIED COMPLAINT v. ASHLAND, LLC, et al., Index No. 159245/2022 Defendants. Defendant ICC Chemical Corporation (“ICC”), by and through its attorneys The Basil Law Group, P.C. hereby responds to Plaintiffs’ Verified Complaint in the above captioned matter as follows: JURISDICTION AND VENUE 1-2. Denied. The allegations contained in paragraphs 1 and 2 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 1 and 2 of Verified Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. PARTIES 3. Denied. After reasonable investigation, ICC is without knowledge or 1 22 1 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 information sufficient to form a belief regarding the truth of the factual averments contained in paragraph 3 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. 4-5. The allegations contained in paragraphs 4 and 5 of Plaintiffs’ Verified Complaint are not directed to ICC and, therefore, no response is required by ICC 6. Admitted in part, denied in part. It is admitted only that ICC is a business entity. The rest of this averment is denied to the extent it seeks conclusions of law to which no responsive pleading is required. ICC specifically denies that it, or any of its predecessors, exposed Mr. Tucci to any toxic substances in the course of his alleged employment. 7-12. The allegations contained in paragraphs 7 through 12 of Plaintiffs’ Verified Complaint are not directed to ICC and, therefore, no response is required by ICC. FACTS COMMON TO ALL COUNTS 13-14. Denied. The averments contained in paragraphs 13 and 14 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no response is required. By way of further response, ICC specifically denies that it committed any liability-inducing acts or omissions as alleged in Plaintiffs’ Verified Complaint or otherwise, and specifically denies acting by or through any agents, servants or employees of ICC acting within the course and scope of their employment or on the business of ICC. Further, insofar as Plaintiffs have not identified or described any alleged agents, servants or employees in the Complaint, ICC, after reasonable investigation, is without knowledge or information sufficient to form a belief regarding the truth of said averments, wherefore same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. . 2 22 2 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 15-16. Denied. The allegations contained in paragraphs 15 and 16 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 15 through 16 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. 17. Denied. After reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraph 17 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. 18-21. Denied. The allegations contained in paragraphs 18 through 21 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 18 through 21 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. COUNT I – NEGLIGENCE & GROSS NEGLIGENCE 22. ICC incorporates by reference its above responses to paragraphs 1 through 21 of Plaintiffs’ Verified Complaint as though same were set forth herein at length. 23-30. Denied. The allegations contained in paragraphs 23 through 30 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To 3 22 3 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 the extent that the allegations in these paragraphs may be construed to make factual allegations, it is specifically denied that ICC manufactured, refined, designed, produced, processed, compounded, converted, packaged, sold, distributed, marketed, re-labeled, supplied and/or otherwise placed into the stream of commerce products containing benzene that were and/or that ICC knew or reasonably should have known were carcinogenic, leukemogenic, inherently defective, ultra-hazardous, dangerous, deleterious, poisonous or otherwise harmful to the Plaintiffs or persons similarly situated. 31-36. Denied. The allegations contained in paragraphs 31 through 36 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. It is specifically denied that ICC breached any duties. To the extent that the allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 31 through 36 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. WHEREFORE, ICC respectfully demands judgment in its favor and against Plaintiffs dismissing Plaintiffs’ Verified Complaint, with prejudice, together with an award of costs and attorney's fees in favor of ICC, along with such other and further legal and/or equitable relief as the Court may deem just and proper. 4 22 4 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 COUNT II – BREACH OF IMPLIED WARRANTY 37. ICC incorporates by reference its above responses to paragraphs 1 through 36 of Plaintiffs’ Verified Complaint as though same were set forth at length herein. 38-44. Denied. The allegations contained in paragraphs 38 through 44 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, it is specifically denied that any such warranties as alleged were made or given by ICC. It is also specifically denied that ICC breached any such warranties and it is specifically denied that any of ICC's products were dangerous, defective, deleterious, poisonous, carcinogenic, unsafe or unfit for use for their intended purposes, unmerchantable, or ultrahazardous. To the contrary, said products would have complied with any and all warranties, and were safe and fit for their intended purposes when used in their normal, foreseeable and expected manner. To the extent that the remaining allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 38 through 44 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. WHEREFORE, ICC respectfully demands judgment in its favor and against Plaintiffs dismissing Plaintiffs’ Verified Complaint, with prejudice, together with an award of costs and attorney's fees in favor of ICC, along with such other and further legal and/or equitable relief as the Court may deem just and proper. 5 22 5 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 COUNT III - STRICT LIABILITY 45. ICC incorporates by reference its above responses to paragraphs 1 through 44 of Plaintiffs’ Verified Complaint as though same were set forth herein at length. 46-49. Denied. The allegations contained in paragraphs 46 through 49 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 46 through 49 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. 50 (a-r). Denied. The allegations contained in paragraph 50 (a-r) of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in this paragraph may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraph 50 (a-r) of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. 51-54. Denied. The allegations contained in paragraphs 51 through 54 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 51 through 54 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. WHEREFORE, ICC respectfully demands judgment in its favor and against Plaintiffs 6 22 6 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 dismissing Plaintiffs’ Verified Complaint, with prejudice, together with an award of costs and attorney's fees in favor of ICC, along with such other and further legal and/or equitable relief as the Court may deem just and proper. COUNT IV–FRAUDULENT MISREPRESENTATION 55. ICC incorporates by reference its above responses to paragraphs 1 through 54 of Plaintiffs’ Verified Complaint as though same were set forth herein at length. 56-66. Denied. The allegations contained in paragraphs 56 through 66 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. It is specifically denied that ICC concealed or withheld any information related to potential dangers of benzene exposure. To the extent that the remaining allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 56 through 66 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. 67-90. The allegations contained in paragraphs 67 through 90 of Plaintiffs’ Verified Complaint are not directed to ICC and, therefore, no response is required by ICC. 91-98. Denied. The allegations contained in paragraphs 91 through 98 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, it is specifically denied that ICC committed any of the alleged acts, omissions, failures or other alleged liability-inducing conduct, that it had knowledge of any of the matters alleged in paragraphs 91 through 98 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. 99-106. The allegations contained in paragraphs 99 through 106 of Plaintiffs’ Verified Complaint are not directed to ICC and, therefore, no response is required by ICC. 7 22 7 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 107-117. Denied. The allegations contained in paragraphs 107 through 117 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, it is specifically denied that ICC committed any of the alleged acts, omissions, failures or other alleged liability-inducing conduct, that it had knowledge of any of the matters alleged in paragraphs 107 through 117 of Plaintiffs’ Verified Complaint and that it failed to warn, instruct, train or advise the Plaintiff, his employers and/or coworkers regarding exposure to benzene. It is also denied that ICC had any knowledge that Plaintiff, his employers and/or co-workers and/or others similarly situated did not know of the proper and necessary procedures and practices to prevent or minimize alleged benzene exposure. WHEREFORE, ICC respectfully demands judgment in its favor and against Plaintiffs dismissing Plaintiffs’ Verified Complaint, with prejudice, together with an award of costs and attorney's fees in favor of ICC, along with such other and further legal and/or equitable relief as the Court may deem just and proper. COUNT V-LOSS OF CONSORTIUM 118. ICC incorporates by reference its above responses to paragraphs 1 through 117 of Plaintiffs’ Verified Complaint as though same were set forth herein at length. 119-22. Denied. The allegations contained in paragraphs 119 through 122 of Plaintiffs’ Verified Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that the allegations in these paragraphs may be construed to make factual allegations, after reasonable investigation, ICC is without knowledge or information sufficient to form a belief regarding the truth of the factual averments contained in paragraphs 119 through 122 of Plaintiffs’ Verified Complaint and, therefore, same are deemed denied and at issue and strict proof thereof, if deemed material, is demanded at trial. WHEREFORE, ICC demands judgment in its favor and against Plaintiffs and the 8 22 8 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 dismissal of Plaintiffs’ claims, with prejudice, together with an award of costs and attorney's fees in favor of ICC along with such other further legal and/or equitable relief as the Court may deem just and proper. AS AND FOR A FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the expiration of the statute(s) of limitations applicable to such claims and/or any applicable statute(s) of repose and, therefore, Plaintiffs are not entitled to recover against ICC. AS AND FOR A SECOND AFFIRMATIVE DEFENSE The acts and/or omissions and/or products of other individuals or entities over whom ICC had no right or duty to control, or exercised no control, constitute intervening or superseding causes of any injuries and damages allegedly sustained by Plaintiffs, which injuries and damages are, in any event, denied. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Any injuries sustained by Plaintiffs were caused in whole or in part by the contributory negligence, comparative negligence and/or culpable conduct of said Plaintiffs and not as a result of the contributory negligence and/or culpable conduct on the part of the ICC or any Party under the control of ICC. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred or limited, in whole or in part, by Plaintiffs’ own negligence in failing to exercise due and proper care under the circumstances, which negligence caused or contributed to Plaintiffs’ injuries and damages, if any, which injuries and damages are, in any event, denied. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred or limited, in whole or in part, because any injuries, damages and/or losses to Plaintiffs as alleged in the Complaint were caused, in whole or in part, or 9 22 9 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 proximately caused, by the fault, negligence or other liability-inducing acts and/or omissions of Plaintiffs or others which, by comparison, were greater than any alleged liability-inducing conduct by ICC, which conduct is, in any event, denied, and, therefore, Plaintiffs’ claims are barred or must be reduced, limited and/or mitigated. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Plaintiffs have not suffered any compensable injuries or damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Plaintiffs have no standing to assert any causes of action or claims against ICC. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE At all times material hereto, ICC acted properly, reasonably and with due and reasonable care and did not breach any duties owed to Plaintiffs and performed each and every duty owed to Plaintiffs, if any. AS AND FOR A NINTH AFFIRMATIVE DEFENSE There exists no proximate cause between Plaintiffs’ alleged injuries and damages and any alleged acts or omissions attributable to ICC or any product(s) manufactured, sold or supplied by ICC and, therefore, Plaintiffs are not entitled to recover from ICC. AS AND FOR A TENTH AFFIRMATIVE DEFENSE ICC asserts that any injuries, losses and/or damages to Plaintiffs, which injuries and damages are specifically denied, are the result of one or more pre-existing conditions that were unrelated to any acts, omissions, conduct, or product(s) of ICC. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE ICC cannot be liable to Plaintiffs to the extent that any injuries, losses and/or damages to Plaintiffs as alleged were caused by the unauthorized, unintended, unanticipated or improper use and/or intentional or knowing misuse of any products of ICC which may be found to have caused and/or contributed to Plaintiffs’ alleged injuries, losses and/or damages, if any. 10 22 10 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE This court lacks jurisdiction over the subject matter of Plaintiffs’ Verified Complaint which should therefore be dismissed. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ Verified Complaint should be dismissed due to insufficient specificity in pleading. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims should be dismissed because any products produced, distributed or introduced into commerce by ICC were not defective, unreasonably dangerous or unfit for the purpose or purposes for which they were intended, but were reasonably fit, suitable and safe for their intended purpose. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE ICC cannot be liable for any injuries, losses or damages to Plaintiffs caused by material and/or substantial alterations of any product(s) of ICC. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE ICC exercised no control over, and had no legal right or duty to control, the use or manner of use, storage or handling of any of the products allegedly involved. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE ICC cannot be liable to Plaintiffs insofar as and/or to the extent that it had no legal duty to provide Mr. Tucci with warnings or instructions concerning the proper and safe use or handling of any product(s) allegedly causing or contributing to Plaintiffs’ alleged injuries, losses or damages, if any. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE Insofar as, and to the extent that, any injuries, losses or damages to Plaintiffs were the result, in whole or in part, of an ordinary disease of life, idiosyncratic reaction or some other 11 22 11 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 circumstance, event or exposure, responsibility for damages to the extent thereof must be apportioned and allocated, in whole or in part, to such cause(s) pursuant to § 433(a) of the Restatement (Second) of Torts. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE Any claims for punitive damages are barred and/or limited by the constitutions of the State of New York and of the United States of America. An award of punitive damages in this action would violate the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred or limited, in whole or in part, by the applicable provisions of the New York Worker's Compensation and/or Occupational Disease Statutes including, but not limited to, the exclusive remedy provisions thereof. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, by virtue of the state of the art defense. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek to impose on ICC any duty under any state statutory or common law which exceeds or is inconsistent with any duties imposed on ICC under any federal or state law, including, but not limited to, the Occupational Safety and Health Act, the Interstate Commerce Act, the Motor Carrier Act, the Hazardous Materials Transportation Act, the Federal Hazardous Substances Labeling Act, the Federal Hazardous Substances Act, and/or any regulations promulgated pursuant to any such acts, the imposition of such duty and any liability on the part of ICC is barred by reason of the preemptive effect of such laws and regulations. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek to impose liability on ICC based on any labeling or other matter which is regulated under and/or which has been approved or authorized pursuant to any 12 22 12 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 federal labeling law or regulations promulgated thereunder, such claims are barred under the doctrine of preemption. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE Insofar as, and to the extent that Plaintiffs, Plaintiffs’ employer and/or any other users or handlers of the product(s) to which Plaintiffs were allegedly exposed had substantial expertise and/or knowledge in the handling, use and storage of the types of product(s) which may have been owned, possessed or supplied by ICC and to which Plaintiffs may have been exposed, and/or were sophisticated or knowledgeable users who were aware, or should have been aware, of the potential dangers, if any, of the handling, use and/or storage of such product(s), ICC owed no duty to Plaintiffs with respect to such product(s). AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE ICC cannot be held liable to Plaintiffs insofar as, and to the extent that, any product(s) which may have caused or contributed to any alleged injuries, losses or damages to Plaintiffs was not designed, manufactured, sold, distributed or supplied by ICC. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE Insofar as, and to the extent that, any product(s) of ICC which may have caused or contributed to any injuries, losses or damages to Plaintiffs alleged was supplied to third parties in an unfinished state and was (were) packaged, repackaged, reassembled and/or reformulated by Plaintiffs or others, ICC cannot be liable for any dangerous condition in connection with the packaged, repackaged, reassembled, reformulated or unfinished product(s), including warnings, for which ICC is not responsible. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred since at the time of the sale, manufacture and distribution by ICC of the alleged chemical products, if any, there was no information or knowledge generally available in the chemical products industry by which ICC could have reasonably become aware of 13 22 13 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 any potential risk of contraction of the diseases alleged in Plaintiffs’ Verified Complaint from the use of its product(s) when used for the purposes for which said products were intended to be used. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the absence of privity between Plaintiffs and ICC. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs were not a user or consumer of any product(s) supplied by ICC and, therefore, ICC cannot be strictly or otherwise liable for any injuries or damages caused by any such product(s). AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE Any product(s) of ICC to which Plaintiffs was allegedly exposed was (were) not defective in design or formulation because at the time any such product(s) would have left the control of ICC, practical and technically feasible designs or formulations were not available that would have prevented the harm for which Plaintiffs seek to recover damages in this action without substantially impairing the usefulness or intended purpose of the product(s). AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the Doctrine of Spoliation. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs’ damages, if any, in whole or in part, are speculative and not actionable. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE No acts, omissions or products attributable to ICC caused Plaintiffs to be exposed to greater than normal background or safe levels of chemicals and substances which could have caused Plaintiffs to contract any of the diseases, injuries or damages alleged. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims for breach of express and/or implied warranties, if any, are precluded 14 22 14 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 and/or limited, in whole or in part, by any exclusion, modifications, disclaimers and limitations regarding liability, damages and/or the time for commencing a civil action in connection with the sale and/or delivery of any of the alleged products and by Plaintiffs’ failure to comply with the applicable provisions of the applicable laws and codes. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, by virtue of the outweighing of any alleged risks by the utility of ICC's product(s), the lack of a feasible alternative safer design at the time of manufacture of such product(s), and ICC's lack of knowledge, actual or constructive, of any risk of the types of injuries and damages allegedly suffered by Plaintiffs from the use of its product(s). AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE ICC asserts that it is immune from claims of failure to inspect for or discover latent defects in connection with any of the alleged products by reason of ICC's status in the chain of distribution of such products. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims should be dismissed because Plaintiffs have failed to join indispensable parties necessary for a just and entire adjudication of the issues. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claims against ICC should be dismissed because Plaintiffs have failed to state a cause of action by failing to identify with particularity which, if any, of ICC's products caused Plaintiffs’ alleged injuries, where Plaintiffs used such products, and specifically when Plaintiffs used or was exposed to such products. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs’ claims against ICC should be dismissed, in whole or in part, because Plaintiffs failed to mitigate or take corrective action upon realizing exposure or potential exposure to ICC's 15 22 15 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 alleged products. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE Plaintiffs are barred from maintaining this action against ICC to the extent that ICC was not a seller or supplier of one or more of the products referred to in Plaintiffs’ Verified Complaint. Moreover, even if it was a product seller or supplier, ICC did not have a reasonable opportunity to inspect the product or products in a manner which would or should, in the exercise of reasonable care, have revealed the existence of any defective condition which is in issue in this case. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE ICC should be dismissed from all claims asserted in Plaintiffs’ Verified Complaint because at all relevant times ICC fully performed and complied with all applicable federal and state statutes, laws and regulations. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE Any duty to warn Plaintiffs of any risks and hazards associated with any products of ICC was discharged by the providing of adequate warnings to Plaintiffs, Plaintiffs’ employer and/or purchasers of said products and, therefore, the learned intermediary and sophisticated purchaser doctrines bar recovery of any damages. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE To the extent that the products at issue in Plaintiffs’ Verified Complaint were not used in the manner in which they were intended to be used and/or were used in a manner that was abnormal and not reasonably foreseeable to ICC, such unintended, unexpected, unforeseeable and abnormal use or misuse proximately caused or contributed to Plaintiffs’ alleged damages, injuries and/or losses, if any. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims should be dismissed, in whole or in part, pursuant to the doctrine of 16 22 16 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 estoppel. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims should be dismissed, in whole or in part, pursuant to the doctrine of waiver. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ claims should be dismissed, in whole or in part, pursuant to the doctrine of laches. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE ICC alleges that punitive damages may not be imposed for conduct which comports with industry custom and standards. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, pursuant to the terms of any full or partial release of Plaintiffs’ claims. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE Any damages or injuries as alleged were caused by an act or acts of God and act or acts of government or acts or omissions of Plaintiffs or third parties over whom ICC had no control or right of control, or a combination of the foregoing, and ICC exercised due care with respect to the products alleged, taking into consideration the characteristics of such products in light of all relevant facts and circumstances, and ICC took precautions against foreseeable risks or omissions attributable to Plaintiffs or third parties and the consequences that could reasonably result from such acts or omissions. AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE If Plaintiffs have settled, or in the future settle with any other parties for the injuries, losses and damages as alleged in Plaintiffs’ Verified Complaint, ICC asserts that it is entitled to a 17 22 17 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 credit, pro rata or pro tanto, as appropriate, for any consideration received by Plaintiffs pursuant to any release given by or on behalf of Plaintiffs or to the extent of any proportionate share of the liability of any other defendants that may be attributable to such defendants. AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claims against ICC are barred, in whole or in part, by the doctrine of accord and satisfaction. AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE In the event and to the extent that Plaintiffs’ employers failed to develop, implement and maintain an appropriate Hazard Communication Program in accordance with the requirements of 29 C.F.R. § 1910.1200(e), such failure was the legal or proximate cause of Plaintiffs’ alleged injuries, damages and losses, if any, and Plaintiffs’ claims against ICC are, therefore, barred. AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs were, at all relevant times, under the direct and exclusive supervision and control of Plaintiffs’ alleged employers or others whose exclusive responsibility was to provide Plaintiffs with a safe work environment including, but not limited to, providing Plaintiffs with proper safety equipment and information. AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE ICC incorporates by reference as if fully set forth herein at length the affirmative defenses asserted or to be asserted by the other defendants to this action, and reserves the right to rely upon such other and further affirmative defenses as are or may be asserted by the other defendants to this action and/or any other defenses that may become available or apparent during pre-trial proceedings and/or the trial of this matter and expressly reserves the right to amend its Answer. AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE 18 22 18 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 That, in the event Plaintiffs recover a verdict or judgment against ICC, then said verdict or judgments must be reduced pursuant to CPLR §4545 (c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify Plaintiffs in whole or in part, for any past or future claimed expenses or other economic loss, from any collateral source such as insurance. AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE That if Plaintiffs sustained the injuries and/or damages complained of, all of which are denied by ICC, said injuries and/or damages were caused in whole or in part by the conduct of one or more parties for whose conduct ICC are not responsible, had no control over, or with whom ICC had no legal relation. AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE In accordance with CPLR §1601 et seq., the liability of ICC, if any, for non-economic loss is limited to ICC' equitable share, determined in accordance with the relative culpability of all persons and/or entities contributing to the total liability for non-economic loss, including parties and others over whom Plaintiffs could have obtained personal jurisdiction with due diligence. AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE That if Plaintiffs shall have a judgment and/or verdict in their favor over and against ICC, the judgment and/or verdict shall be precluded, modified, offset and/or reduced by any and all sums or consideration paid or promised to Plaintiff by any person, corporation or parties claimed to be liable for the injuries and/or damages alleged in the Verified Complaint to the extent of the greater of either sum or consideration paid or promised to Plaintiff or in the amount of the released tortfeasor's equitable share of the liability and the damages in accordance with Article 15 of the General Obligations Law§§ 15-105 and 15-108. AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE That the injuries and damages to Plaintiffs were caused in whole or in part or were contributed to 19 22 19 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 02/06/2023 by the culpable conduct and want of care on the part of Plaintiffs and any such alleged damages should be fully or partially diminished by said culpable conduct and want of care of the Plaintiffs pursuant to CPLR Article 14 and 14-A. Dated: February 6, 2023 New York New York 10001 THE BASIL LAW GROUP, P.C. 125 West 31st Street #19-B New York New York 10001 (917) 994-9973 Attorneys for Defendant ICC Chemical Corporation By: Robert J. Basil 20 22 20 of FILED: NEW YORK COUNTY CLERK 02/06/2023 03:02 PM INDEX NO. 159245/2022 NYSCEF DOC. NO. 75