Preview
FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
___________________________________________
JAMES BROWN, Index No.: 609463/2020
Plaintiffs, ANSWER TO VERIFIED
vs. COMPLAINT
ARVINMERITOR, INC., Individually and
As Successor to Rockwell International, et al.,
Defendants.
___________________________________________
Defendant, B.W.P. DISTRIBUTORS, INC., by its attorneys, McGivney Kluger Clark &
Intoccia, P.C., answering the Plaintiffs’ Verified Complaint upon information and belief, alleges
as follows:
1. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraphs
“1” through “3” of the Verified Complaint and leaves plaintiffs to their proofs.
2. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “4” and “5” of the Verified Complaint, insofar as they pertain to B.W.P.
DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to
the truth of those allegations insofar as they pertain to persons or entities other than B.W.P.
DISTRIBUTORS, INC., and leaves plaintiffs to their proofs.
3. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraphs
“6” through “57” of the Verified Complaint as same do not apply to this Defendant and leaves
plaintiffs to their proofs.
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AS AND FOR A FIRST CAUSE OF ACTION
4. Defendant, B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to the paragraphs designated “1” through “57” in
denying the paragraph designated “58” of the Complaint.
5. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “59” through “66” of the Verified Complaint, insofar as they pertain to
B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
AS AND FOR A SECOND CAUSE OF ACTION
6. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to the paragraphs designated “1” through “66” in
denying the paragraph designated “67” of the Complaint.
7. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “68” through “71” of the Verified Complaint, insofar as they pertain to
B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
AS AND FOR A THIRD CAUSE OF ACTION
8. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to paragraphs designated “1” through “71” in denying
the paragraph designated “72” of the Complaint.
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9. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “73” through “81” of the Verified Complaint, insofar as they pertain to
B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
AS AND FOR A FOURTH CAUSE OF ACTION
10. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to paragraphs designated “1” through “81” in denying
the paragraph designated “82” of the Complaint.
11. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “83” and “84” of the Verified Complaint, insofar as they pertain to
B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
12. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraph
“85” of the Verified Complaint and leaves plaintiffs to their proofs.
13. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “86” through “98” of the Verified Complaint, insofar as they pertain to
B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
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B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
14. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraph
“99” of the Verified Complaint and leaves plaintiffs to their proofs.
15. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraph “100” of the Verified Complaint, insofar as they pertain to B.W.P.
DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to
the truth of those allegations insofar as they pertain to persons or entities other than B.W.P.
DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their
proofs.
AS AND FOR A FIFTH CAUSE OF ACTION
16. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to paragraphs designated “1” through “100” in denying
the paragraph designated “101” of the Complaint.
17. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraphs
“102” through “108” of the Verified Complaint as same do not apply to this Defendant and
leaves plaintiffs to their proofs.
AS AND FOR A SIXTH CAUSE OF ACTION
18. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to paragraphs designated “1” through “108” in denying
the paragraph designated “109” of the Complaint.
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19. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “100” through “118” of the Verified Complaint, insofar as they pertain
to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
20. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraph
“119” of the Verified Complaint and leaves plaintiffs to their proofs.
21. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “120” through “124” of the Verified Complaint, insofar as they pertain
to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
AS AND FOR A SEVENTH CAUSE OF ACTION
22. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to paragraphs designated “1” through “124” in denying
the paragraph designated “125” of the Complaint.
23. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “126” through “132” of the Verified Complaint, insofar as they pertain
to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
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to their proofs.
24. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraphs
“133” and “134” of the Verified Complaint and leaves plaintiffs to their proofs.
25. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “135” through “138” of the Verified Complaint, insofar as they pertain
to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
AS AND FOR AN EIGHTH CAUSE OF ACTION
26. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to paragraphs designated “1” through “138” in denying
the paragraph designated “139.” of the Complaint.
27. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “140” through “153” of the Verified Complaint, insofar as they pertain
to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
28. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraph
“154” of the Verified Complaint, refers all questions of law to this Court, and leaves plaintiffs to
their proofs.
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AS AND FOR A NINTH CAUSE OF ACTION
29. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to paragraphs designated “1” through “154” in denying
the paragraph designated “155” of the Complaint.
30. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraph
“156” of the Verified Complaint, refers all questions of law to this Court, and leaves plaintiffs to
their proofs.
31. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “157” and “158” of the Verified Complaint, insofar as they pertain to
B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
32. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or
information sufficient to form a belief as to each and every allegation contained in Paragraphs
“159” and “160” of the Verified Complaint, refers all questions of law to this Court, and leaves
plaintiffs to their proofs.
33. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraphs “161” and “167” of the Verified Complaint, insofar as they pertain to
B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a
belief as to the truth of those allegations insofar as they pertain to persons or entities other than
B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs
to their proofs.
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AS AND FOR A TENTH CAUSE OF ACTION
34. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges,
each and every answer heretofore made to paragraphs designated “1” through “167” in denying
the paragraph designated “168” of the Complaint.
35. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation
contained in Paragraph “169” of the Verified Complaint, insofar as they pertain to B.W.P.
DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to
the truth of those allegations insofar as they pertain to persons or entities other than B.W.P.
DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their
proofs.
36. Denies each and every other allegation contained in the Complaint not heretofore
specifically admitted.
* * *
FIRST SEPARATE AFFIRMATIVE DEFENSE
Defendant denies that the Plaintiffs are entitled to the damages claimed or to the relief
demanded.
SECOND SEPARATE AFFIRMATIVE DEFENSE
Each and every Count of Plaintiffs’ Complaint fails to state a claim upon which relief can be
granted.
THIRD SEPARATE AFFIRMATIVE DEFENSE
There is an insufficiency of service of process upon this Defendant.
FOURTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks subject matter jurisdiction over each and every Count contained in Plaintiffs’
Complaint.
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FIFTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks personal jurisdiction over the Defendant with respect to each and every Count
contained in Plaintiffs’ Complaint.
SIXTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks venue over the Defendant with respect to each and every Count contained in
Plaintiffs’ Complaint.
SEVENTH SEPARATE AFFIRMATIVE DEFENSE
This Court is considered a forum non conveniens for the Defendant with respect to each and
every Count contained in Plaintiffs’ Complaint.
EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The causes of action alleged in Plaintiffs’ Complaint are barred by the applicable Statute of
Limitations.
NINTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiffs have failed to join a party or parties necessary for a just adjudication of this matter
and have further omitted to state any reasons for such failure.
TENTH SEPARATE AFFIRMATIVE DEFENSE
The claims presented by Plaintiffs’ Complaint are barred by the contributing fault of Plaintiffs,
which fault is greater than that of each defendant or all of the defendants.
ELEVENTH SEPARATE AFFIRMATIVE DEFENSE
Any injuries or damages suffered by the Plaintiffs were caused by the negligence of the Plaintiffs
and any recovery therefore is barred.
TWELFTH SEPARATE AFFIRMATIVE DEFENSE
Any injuries or damages suffered by the Plaintiffs were caused by the negligence of the Plaintiffs
and any recovery therefore must be proportionately diminished.
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THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE
Any negligence on the part of Defendant was superseded by the new and independent conduct,
including negligence of Plaintiffs’ employer and/or other third parties, who owed a duty to Plaintiffs and
over whom Defendant had no control and which conduct Defendant could neither anticipate nor
reasonably foresee and which superseding conduct was not a consequence of Defendant’s alleged
negligence but which was the efficient cause of the injuries allegedly sustained by Plaintiffs.
FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE
The injuries complained of by the Plaintiffs are wholly or partially caused by independent
means, including, inter alia, the conduct and habits of Plaintiffs and exposure to other particulates in the
environment.
FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff was a habitual smoker, and such smoking caused any lung disease from which the
Plaintiff suffered.
SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant had no duty to give instructions to Plaintiffs or to warn Plaintiffs of any hazards
attendant to the contract with, use of, or exposure to its products containing asbestos, whether known or
constructively known by Defendant, because those hazards were known by Plaintiffs and/or other
persons who controlled or supervised Plaintiffs in the course of or incidental to his employment.
SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiffs’ claims, to the extent that they include a prayer for equitable relief, are barred on
account of laches in that Plaintiffs failed or neglected to maintain this action in a swift, diligent and
timely fashion, all to the detriment of Defendant.
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EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE
There was no privity of contract between Defendant and Plaintiffs, so Plaintiffs may not recover
upon any alleged breach of any express or implied warranty.
NINETEENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ claims if based upon the allegations of express or implied warranty are barred because
no sale of goods occurred.
TWENTIETH SEPARATE AFFIRMATIVE DEFENSE
Defendant cannot be held liable under principles of strict tort liability because products
manufactured and/or products which left Defendant’s possession did so prior to the enactment of New
York law regarding strict liability.
TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
At all times and places mentioned in the Complaint, the Plaintiffs and/or other persons used this
Defendant’s products, if indeed any were used, in an unreasonable manner, not reasonably foreseeable
to this Defendant, and for a purpose for which the products were not intended, manufactured, or
designed; Plaintiffs’ injuries and damages, if any, were directly and proximately caused by said misuse
and abuse, and Plaintiffs’ recovery herein, if any, is barred or must be diminished in proportion to the
fault attributable to the Plaintiffs and/or such other parties and persons.
TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
An action for breach of warranty was not available to Plaintiffs during the period of the allegedly
injurious exposure to, use of, or contact with products allegedly manufactured by Defendant.
TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
No warranty of any kind was extended to Plaintiffs in this matter.
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TWENTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
If the Defendant, its servants or agents made any express warranties (allegations which the
Defendant specifically denies) then the Plaintiffs did not rely on the express warranties and, further,
there was no such reliance by any person or entity authorized to represent the Plaintiffs.
TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
If Defendant or its agents or servants made any warranties express or implied (allegations which
the Defendant specifically denies) then the Defendant denies that it breached any of the warranties.
TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
If Defendant was liable, negligent or in breach of warranty, all of which it expressly denies, the
Defendant’s liability in any or all of those events has been terminated by the intervening acts, omissions
or negligence of others over whom this Defendant had neither control, nor the right of control and for
whose conduct the defendant is not legally responsible.
TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
Defendant denies that there was any defect or negligent mining, processing, manufacture,
designed, testing, investigation, fashioning, packaging, distributing, delivery, and/or sale, in any
asbestos product or material referred to in the Plaintiffs’ Complaint, but if there was any defect or
negligence as alleged, then the Defendant is not liable as it justifiably relied upon inspection by others in
the regular course of trade and business.
TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The utility of the products manufactured by Defendant outweighs the danger allegedly involved
and, therefore, Plaintiffs’ claim is barred as a matter of public policy.
TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ employer or employees were negligent with respect to the matters set forth in the
Complaint, and such negligence caused in whole or in part whatever disease, injury or disability, if any,
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which Plaintiffs may have sustained, as set forth in the Complaint. Therefore, even if Plaintiffs are
entitled to recover against Defendant, which Defendant specifically denies, they are not entitled to
recover in the amount set forth in the Complaint because Defendant is entitled to set off any and all
workmen’s compensation payments against any judgment which might be rendered in Plaintiffs’ favor.
THIRTIETH SEPARATE AFFIRMATIVE DEFENSE
If Plaintiffs establishes any exposure to Defendant’s products, said exposure would have been so
minimal as to be insufficient to establish to a reasonable degree of probability that its product caused
Plaintiffs’ claimed injuries.
THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
The Plaintiffs have released, settled, entered into an accord and satisfaction or otherwise
compromised their claims herein, and accordingly, said claims are barred by operations of law.
THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
Defendant expressly denies that it manufactured, designed, and/or sold any products referred to
in Plaintiffs’ Complaint which caused injury to Plaintiffs. Notwithstanding, at all times and places
mentioned in the Complaint, Plaintiffs and/or other persons without this Defendant’s knowledge and
approval redesigned, modified, altered, and used this Defendant’s products contrary to instruction and
contrary to the custom and practice of the industry. This redesign, modification, alteration, and use so
substantially changed the product’s character that if there was a defect in the product, which Defendant
specifically denies, such defect resulted solely from the redesign, modification, alteration, or other such
treatment or change and not from any act or omission by this Defendant. Therefore, said defect, if any,
was created by Plaintiffs and/or other persons, as the case may be, and was the direct and proximate
cause of the injuries and damages, if any, that Plaintiffs allegedly suffered.
THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to punitive, exemplary or enhanced damages for the following reasons:
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(a) Plaintiffs’ claim for punitive damages is barred by the Due Process clause of the
Fourteenth Amendment to the United States Constitution.
(b) Plaintiffs’ claim for punitive damages is barred by the proscription of the Eighth
Amendment to the United States Constitution, as supplied to the States through the Fourteenth
Amendment, prohibiting the imposition of excessive fines.
(c) Plaintiffs’ claim for punitive damages is barred by the “double jeopardy” clause of the
Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth
Amendment.
THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
Punitive damages cannot be awarded against this Defendant for any of the alleged actions or
omissions of any of this Defendant’s predecessors because there is not a sufficient degree of identity
between this Defendant and any of its predecessors to justify such an award.
THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
At all times and places mentioned in the Complaint, the Plaintiffs failed to make reasonable
efforts to mitigate his injuries and damages, if any.
THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
There was no negligence, gross negligence, willful, wanton or malicious misconduct, reckless
indifference or reckless disregard of the rights of the Plaintiffs, or malice (actual, legal or otherwise) on
the part of this Defendant as to the Plaintiffs.
THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiffs have waived any and all claims which he seeks to assert in this action and is
estopped both to assert and to recover upon such claims.
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THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant states that if it supplied any asbestos product, either directly or indirectly, to the
Plaintiffs’ employer, this product was supplied in accordance with specifications established and
promulgated by that employer, agencies or departments of the United States of America, other persons
and/or entities.
THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant states that any asbestos containing products manufactured or sold by the
Defendant which give rise to Plaintiffs’ claims herein were designed and manufactured pursuant to and
in accordance with specifications mandated by the United States Government or its agencies. The
knowledge of the United States Government and its agencies of any possible health hazards from use of
such products were equal or superior to that of the Defendant, and by reason thereof, the Defendant is
entitled to such immunity from liability as exists in favor of the United States Government or its
agencies.
FORTIETH SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiffs are unable to identify the manufacturer or manufacturers of the products which
allegedly caused injury, the causes of action asserted by the Plaintiffs fail to state a claim upon which
relief can be granted, for, if relief be granted, such relief would constitute a taking of this Defendant’s
property for a public use without just compensation, a violation of this Defendant’s constitutional rights.
FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiffs are unable to identify the manufacturer or manufacturers of the products which
allegedly caused the injury, the causes of action asserted by the Plaintiffs fail to state a claim upon
which relief can be granted because such relief would constitute a denial by this Court of Defendant’s
constitutional right of equal protection under the law.
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FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
This Defendant alleges that any sales of asbestos-containing products made by it were made to
sophisticated users of such products, and that sale to a sophisticated user of the products bars any claim
of liability against this Defendant.
FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiffs are barred from recovery, any loss of consortium claim by the spouse is also
barred because it is a derivative action.
FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
Defendant avails itself of, and adopts such other defenses raised by any other defendants as may
be applicable.
FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
Defendant reserves the right to assert any and/or all applicable affirmative defense which
discovery may reveal appropriate.
FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
Defendant denies any and all liability to the extent that Plaintiffs assert that Defendant is liable
as a successor, successor in business, successor in product line or a portion thereof, assign, predecessor,
predecessor in business, predecessor in product line or a portion thereof, alter-ego, subsidiary, wholly or
partially owned by, or a member in an entity researching, studying, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding,
manufacturing for others, packaging and advertising a certain substance, the generic name of which is
asbestos.
FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ injuries, if any, were caused, contributed to, brought about and/or aggravated by
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persons neither employed by, nor otherwise subject to, the direction of answering defendant
FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ claim for premises liability is barred because the answering defendant did not exercise
control or supervise Plaintiffs’ (or Plaintiff’s decedent, if applicable) work at any facility.
FORTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
Defendant denies any and all liability to the extent that Plaintiffs assert that Defendant is liable as
an owner, possessor, lessor, lessee, operator, controller, manager, supervisor, general contractor,
subcontractor, architect, engineer or were responsible for the maintenance, control and/or safety at the
premises at which Plaintiff was frequenting.
FIFTIETH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ action is barred by the doctrines of estoppel, laches and/or waiver.
FIFTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ action is barred by the doctrine of preclusion.
FIFTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
Any damages which the Plaintiff allegedly sustained resulted solely from his own negligence.
FIFTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs’ claims are completely barred or diminished pursuant to the doctrine of comparative
negligence.
FIFTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
In the event the product(s) at issue was (were) distributed by B.W.P. DISTRIBUTORS, INC.,
which is also denied, said B.W.P. DISTRIBUTORS, INC., products conformed to all applicable law,
regulations, industry standards and the current state the art at the time its products were manufactured.
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FIFTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
B.W.P. DISTRIBUTORS, INC., denies manufacturing, distributing, selling, installing or
placing into the stream of commerce any asbestos-containing products. If there were any asbestos-
containing products associated with B.W.P. DISTRIBUTORS, INC., to which the plaintiff was
exposed, such products were manufactured, distributed, sold and/or installed in conformity with the
generally recognized state of the art existing at the time. Moreover, the state of the medical and
scientific knowledge and the published literature and other materials reflecting said state of the medical
and scientific art at all times pertinent hereto was such that B.W.P. DISTRIBUTORS, INC., neither
knew nor could have known that products allegedly associated with it presented a foreseeable risk of
harm, if any, to the plaintiff in the normal and expected use of these products, according to the law in
full force and effect at the relevant time. B.W.P. DISTRIBUTORS, INC., demands trial by jury.
FIFTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
B.W.P. DISTRIBUTORS, INC., denies that plaintiff was ever exposed to a product sold,
manufactured, used or supplied by B.W.P. DISTRIBUTORS, INC., which contained asbestos.
However, should the plaintiff submit evidence to the contrary, then B.W.P. DISTRIBUTORS, INC.,
states that any asbestos fibers in such product were entirely encapsulated and, therefore, such products
did not emit respirable asbestos fibers into the air. Therefore, such exposure could not have contributed
to plaintiff’s alleged injuries.
CROSS CLAIM FOR CONTRIBUTION
B.W.P. DISTRIBUTORS, INC., hereby makes claim for contribution against each and
every other defendant in this action.
CROSS CLAIM FOR INDEMNIFICATION
While denying liability to plaintiffs as well as the damages and injuries alleged, if this
defendant is found liable to the plaintiffs for damages by reason of the alleged acts complained
of, this defendant’s alleged negligence was merely constructive, technical and passive or
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vicarious and plaintiffs’ damages and injuries arose with direct and primary negligence, strict
liability, breach of contract and implied warranties of the said co-defendants listed in this action.
ANSWER TO ALL CROSS CLAIMS
This defendant 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 B.W.P. DISTRIBUTORS, INC., requests judgment in its favor
dismissing Plaintiffs’ Verified Complaint against it together with the costs and disbursements of this
action and for any expenses incurred in the defense thereof, including this Defendant’s attorneys’ fees.
FURTHERMORE, defendant B.W.P. DISTRIBUTORS, INC., demands judgment over and
against co-defendants on its cross-claim for the amount of any judgment or verdict which may be
obtained herein by the Plaintiffs against this defendant, together with costs and disbursements of this
action, plus any and all attorneys’ fees, costs of investigation and disbursements.
Dated: March 17, 2023
New York, New York
McGIVNEY KLUGER CLARK &
INTOCIA, P.C.
Attorneys for Defendant
B.W.P. Distributors, Inc.,
Wendy R. Kagan
____________________________
WENDY R. KAGAN, ESQ.
80 Broad Street, 23rd Floor
New York, New York 10004
(212) 509-3456
To:
BELLUCK & FOX, LLP
Joseph W. Belluck, Esq.
546 Fifth Avenue, Fifth Floor
New York, New York 10036
Tel. (212) 681-1575
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ATTORNEY’S VERIFICATION
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
WENDY R. KAGAN, ESQ., being duly sworn, deposes and says that I am an attorney with the
law firm of McGivney, Kluger, Clark & Intoccia, P.C., that I have read the foregoing Standard Answer
by B.W.P. Distributors, Inc., and know the contents thereof, and that the same is true to my own
knowledge, except as to matters therein stated to be alleged on information and belief, and that as to
those matters, I believe them to be true. The sources of my information are file records and phone
conversations with agents of the Defendant. The reason this verification is made by deponent and not by
Defendant is because Defendant does not reside within the county where its attorneys have an office.
Dated: New York, New York
March 17, 2023
Wendy R. Kagan
WENDY R. KAGAN, ESQ.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 17th day of March 2023, a copy of the foregoing Standard
Answer of B.W.P. Distributors, Inc., to the Complaint was emailed this day to plaintiff and all counsel of
record noted on the Court’s ECF system.
Andrew Scheid
Andrew Scheid
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Index No.: 609463/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------------------------------------------------------------X
JAMES BROWN,
Plaintiffs,
vs.
ARVINMERITOR, INC., Individually and
As Successor to Rockwell International, et al.,
Defendants.
-------------------------------------------------------------------------------X
ANSWER TO COMPLAINT
Attorneys for Defendant:
B.W.P. DISTRIBUTORS, INC.,
McGIVNEY, KLUGER, CLARK & INTOCCIA, P.C.
COUNSELORS AT LAW
80 Broad Street, 23rd Floor
New York, New York 10004
(212) 509-3456
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Preview
FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ___________________________________________ JAMES BROWN, Index No.: 609463/2020 Plaintiffs, ANSWER TO VERIFIED vs. COMPLAINT ARVINMERITOR, INC., Individually and As Successor to Rockwell International, et al., Defendants. ___________________________________________ Defendant, B.W.P. DISTRIBUTORS, INC., by its attorneys, McGivney Kluger Clark & Intoccia, P.C., answering the Plaintiffs’ Verified Complaint upon information and belief, alleges as follows: 1. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraphs “1” through “3” of the Verified Complaint and leaves plaintiffs to their proofs. 2. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “4” and “5” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., and leaves plaintiffs to their proofs. 3. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraphs “6” through “57” of the Verified Complaint as same do not apply to this Defendant and leaves plaintiffs to their proofs. 1 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 AS AND FOR A FIRST CAUSE OF ACTION 4. Defendant, B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to the paragraphs designated “1” through “57” in denying the paragraph designated “58” of the Complaint. 5. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “59” through “66” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. AS AND FOR A SECOND CAUSE OF ACTION 6. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to the paragraphs designated “1” through “66” in denying the paragraph designated “67” of the Complaint. 7. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “68” through “71” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. AS AND FOR A THIRD CAUSE OF ACTION 8. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to paragraphs designated “1” through “71” in denying the paragraph designated “72” of the Complaint. 2 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 9. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “73” through “81” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. AS AND FOR A FOURTH CAUSE OF ACTION 10. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to paragraphs designated “1” through “81” in denying the paragraph designated “82” of the Complaint. 11. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “83” and “84” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. 12. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraph “85” of the Verified Complaint and leaves plaintiffs to their proofs. 13. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “86” through “98” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than 3 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. 14. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraph “99” of the Verified Complaint and leaves plaintiffs to their proofs. 15. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraph “100” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. AS AND FOR A FIFTH CAUSE OF ACTION 16. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to paragraphs designated “1” through “100” in denying the paragraph designated “101” of the Complaint. 17. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraphs “102” through “108” of the Verified Complaint as same do not apply to this Defendant and leaves plaintiffs to their proofs. AS AND FOR A SIXTH CAUSE OF ACTION 18. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to paragraphs designated “1” through “108” in denying the paragraph designated “109” of the Complaint. 4 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 19. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “100” through “118” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. 20. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraph “119” of the Verified Complaint and leaves plaintiffs to their proofs. 21. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “120” through “124” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. AS AND FOR A SEVENTH CAUSE OF ACTION 22. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to paragraphs designated “1” through “124” in denying the paragraph designated “125” of the Complaint. 23. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “126” through “132” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs 5 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 to their proofs. 24. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraphs “133” and “134” of the Verified Complaint and leaves plaintiffs to their proofs. 25. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “135” through “138” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. AS AND FOR AN EIGHTH CAUSE OF ACTION 26. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to paragraphs designated “1” through “138” in denying the paragraph designated “139.” of the Complaint. 27. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “140” through “153” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. 28. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraph “154” of the Verified Complaint, refers all questions of law to this Court, and leaves plaintiffs to their proofs. 6 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 AS AND FOR A NINTH CAUSE OF ACTION 29. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to paragraphs designated “1” through “154” in denying the paragraph designated “155” of the Complaint. 30. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraph “156” of the Verified Complaint, refers all questions of law to this Court, and leaves plaintiffs to their proofs. 31. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “157” and “158” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. 32. Defendant, B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to each and every allegation contained in Paragraphs “159” and “160” of the Verified Complaint, refers all questions of law to this Court, and leaves plaintiffs to their proofs. 33. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraphs “161” and “167” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. 7 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 AS AND FOR A TENTH CAUSE OF ACTION 34. Defendant B.W.P. DISTRIBUTORS, INC., repeats, reiterates and realleges, each and every answer heretofore made to paragraphs designated “1” through “167” in denying the paragraph designated “168” of the Complaint. 35. Defendant, B.W.P. DISTRIBUTORS, INC., denies each and every allegation contained in Paragraph “169” of the Verified Complaint, insofar as they pertain to B.W.P. DISTRIBUTORS, INC., denies any knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than B.W.P. DISTRIBUTORS, INC., refers all questions of law to this Court, and leaves plaintiffs to their proofs. 36. Denies each and every other allegation contained in the Complaint not heretofore specifically admitted. * * * FIRST SEPARATE AFFIRMATIVE DEFENSE Defendant denies that the Plaintiffs are entitled to the damages claimed or to the relief demanded. SECOND SEPARATE AFFIRMATIVE DEFENSE Each and every Count of Plaintiffs’ Complaint fails to state a claim upon which relief can be granted. THIRD SEPARATE AFFIRMATIVE DEFENSE There is an insufficiency of service of process upon this Defendant. FOURTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks subject matter jurisdiction over each and every Count contained in Plaintiffs’ Complaint. 8 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 FIFTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over the Defendant with respect to each and every Count contained in Plaintiffs’ Complaint. SIXTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks venue over the Defendant with respect to each and every Count contained in Plaintiffs’ Complaint. SEVENTH SEPARATE AFFIRMATIVE DEFENSE This Court is considered a forum non conveniens for the Defendant with respect to each and every Count contained in Plaintiffs’ Complaint. EIGHTH SEPARATE AFFIRMATIVE DEFENSE The causes of action alleged in Plaintiffs’ Complaint are barred by the applicable Statute of Limitations. NINTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiffs have failed to join a party or parties necessary for a just adjudication of this matter and have further omitted to state any reasons for such failure. TENTH SEPARATE AFFIRMATIVE DEFENSE The claims presented by Plaintiffs’ Complaint are barred by the contributing fault of Plaintiffs, which fault is greater than that of each defendant or all of the defendants. ELEVENTH SEPARATE AFFIRMATIVE DEFENSE Any injuries or damages suffered by the Plaintiffs were caused by the negligence of the Plaintiffs and any recovery therefore is barred. TWELFTH SEPARATE AFFIRMATIVE DEFENSE Any injuries or damages suffered by the Plaintiffs were caused by the negligence of the Plaintiffs and any recovery therefore must be proportionately diminished. 9 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE Any negligence on the part of Defendant was superseded by the new and independent conduct, including negligence of Plaintiffs’ employer and/or other third parties, who owed a duty to Plaintiffs and over whom Defendant had no control and which conduct Defendant could neither anticipate nor reasonably foresee and which superseding conduct was not a consequence of Defendant’s alleged negligence but which was the efficient cause of the injuries allegedly sustained by Plaintiffs. FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE The injuries complained of by the Plaintiffs are wholly or partially caused by independent means, including, inter alia, the conduct and habits of Plaintiffs and exposure to other particulates in the environment. FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff was a habitual smoker, and such smoking caused any lung disease from which the Plaintiff suffered. SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE The Defendant had no duty to give instructions to Plaintiffs or to warn Plaintiffs of any hazards attendant to the contract with, use of, or exposure to its products containing asbestos, whether known or constructively known by Defendant, because those hazards were known by Plaintiffs and/or other persons who controlled or supervised Plaintiffs in the course of or incidental to his employment. SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiffs’ claims, to the extent that they include a prayer for equitable relief, are barred on account of laches in that Plaintiffs failed or neglected to maintain this action in a swift, diligent and timely fashion, all to the detriment of Defendant. 10 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE There was no privity of contract between Defendant and Plaintiffs, so Plaintiffs may not recover upon any alleged breach of any express or implied warranty. NINETEENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ claims if based upon the allegations of express or implied warranty are barred because no sale of goods occurred. TWENTIETH SEPARATE AFFIRMATIVE DEFENSE Defendant cannot be held liable under principles of strict tort liability because products manufactured and/or products which left Defendant’s possession did so prior to the enactment of New York law regarding strict liability. TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE At all times and places mentioned in the Complaint, the Plaintiffs and/or other persons used this Defendant’s products, if indeed any were used, in an unreasonable manner, not reasonably foreseeable to this Defendant, and for a purpose for which the products were not intended, manufactured, or designed; Plaintiffs’ injuries and damages, if any, were directly and proximately caused by said misuse and abuse, and Plaintiffs’ recovery herein, if any, is barred or must be diminished in proportion to the fault attributable to the Plaintiffs and/or such other parties and persons. TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE An action for breach of warranty was not available to Plaintiffs during the period of the allegedly injurious exposure to, use of, or contact with products allegedly manufactured by Defendant. TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE No warranty of any kind was extended to Plaintiffs in this matter. 11 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 TWENTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE If the Defendant, its servants or agents made any express warranties (allegations which the Defendant specifically denies) then the Plaintiffs did not rely on the express warranties and, further, there was no such reliance by any person or entity authorized to represent the Plaintiffs. TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE If Defendant or its agents or servants made any warranties express or implied (allegations which the Defendant specifically denies) then the Defendant denies that it breached any of the warranties. TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE If Defendant was liable, negligent or in breach of warranty, all of which it expressly denies, the Defendant’s liability in any or all of those events has been terminated by the intervening acts, omissions or negligence of others over whom this Defendant had neither control, nor the right of control and for whose conduct the defendant is not legally responsible. TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE Defendant denies that there was any defect or negligent mining, processing, manufacture, designed, testing, investigation, fashioning, packaging, distributing, delivery, and/or sale, in any asbestos product or material referred to in the Plaintiffs’ Complaint, but if there was any defect or negligence as alleged, then the Defendant is not liable as it justifiably relied upon inspection by others in the regular course of trade and business. TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE The utility of the products manufactured by Defendant outweighs the danger allegedly involved and, therefore, Plaintiffs’ claim is barred as a matter of public policy. TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ employer or employees were negligent with respect to the matters set forth in the Complaint, and such negligence caused in whole or in part whatever disease, injury or disability, if any, 12 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 which Plaintiffs may have sustained, as set forth in the Complaint. Therefore, even if Plaintiffs are entitled to recover against Defendant, which Defendant specifically denies, they are not entitled to recover in the amount set forth in the Complaint because Defendant is entitled to set off any and all workmen’s compensation payments against any judgment which might be rendered in Plaintiffs’ favor. THIRTIETH SEPARATE AFFIRMATIVE DEFENSE If Plaintiffs establishes any exposure to Defendant’s products, said exposure would have been so minimal as to be insufficient to establish to a reasonable degree of probability that its product caused Plaintiffs’ claimed injuries. THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSE The Plaintiffs have released, settled, entered into an accord and satisfaction or otherwise compromised their claims herein, and accordingly, said claims are barred by operations of law. THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE Defendant expressly denies that it manufactured, designed, and/or sold any products referred to in Plaintiffs’ Complaint which caused injury to Plaintiffs. Notwithstanding, at all times and places mentioned in the Complaint, Plaintiffs and/or other persons without this Defendant’s knowledge and approval redesigned, modified, altered, and used this Defendant’s products contrary to instruction and contrary to the custom and practice of the industry. This redesign, modification, alteration, and use so substantially changed the product’s character that if there was a defect in the product, which Defendant specifically denies, such defect resulted solely from the redesign, modification, alteration, or other such treatment or change and not from any act or omission by this Defendant. Therefore, said defect, if any, was created by Plaintiffs and/or other persons, as the case may be, and was the direct and proximate cause of the injuries and damages, if any, that Plaintiffs allegedly suffered. THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE Plaintiffs are not entitled to punitive, exemplary or enhanced damages for the following reasons: 13 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 (a) Plaintiffs’ claim for punitive damages is barred by the Due Process clause of the Fourteenth Amendment to the United States Constitution. (b) Plaintiffs’ claim for punitive damages is barred by the proscription of the Eighth Amendment to the United States Constitution, as supplied to the States through the Fourteenth Amendment, prohibiting the imposition of excessive fines. (c) Plaintiffs’ claim for punitive damages is barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE Punitive damages cannot be awarded against this Defendant for any of the alleged actions or omissions of any of this Defendant’s predecessors because there is not a sufficient degree of identity between this Defendant and any of its predecessors to justify such an award. THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE At all times and places mentioned in the Complaint, the Plaintiffs failed to make reasonable efforts to mitigate his injuries and damages, if any. THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE There was no negligence, gross negligence, willful, wanton or malicious misconduct, reckless indifference or reckless disregard of the rights of the Plaintiffs, or malice (actual, legal or otherwise) on the part of this Defendant as to the Plaintiffs. THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiffs have waived any and all claims which he seeks to assert in this action and is estopped both to assert and to recover upon such claims. 14 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE The Defendant states that if it supplied any asbestos product, either directly or indirectly, to the Plaintiffs’ employer, this product was supplied in accordance with specifications established and promulgated by that employer, agencies or departments of the United States of America, other persons and/or entities. THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE The Defendant states that any asbestos containing products manufactured or sold by the Defendant which give rise to Plaintiffs’ claims herein were designed and manufactured pursuant to and in accordance with specifications mandated by the United States Government or its agencies. The knowledge of the United States Government and its agencies of any possible health hazards from use of such products were equal or superior to that of the Defendant, and by reason thereof, the Defendant is entitled to such immunity from liability as exists in favor of the United States Government or its agencies. FORTIETH SEPARATE AFFIRMATIVE DEFENSE If the Plaintiffs are unable to identify the manufacturer or manufacturers of the products which allegedly caused injury, the causes of action asserted by the Plaintiffs fail to state a claim upon which relief can be granted, for, if relief be granted, such relief would constitute a taking of this Defendant’s property for a public use without just compensation, a violation of this Defendant’s constitutional rights. FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE If the Plaintiffs are unable to identify the manufacturer or manufacturers of the products which allegedly caused the injury, the causes of action asserted by the Plaintiffs fail to state a claim upon which relief can be granted because such relief would constitute a denial by this Court of Defendant’s constitutional right of equal protection under the law. 15 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE This Defendant alleges that any sales of asbestos-containing products made by it were made to sophisticated users of such products, and that sale to a sophisticated user of the products bars any claim of liability against this Defendant. FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE If the Plaintiffs are barred from recovery, any loss of consortium claim by the spouse is also barred because it is a derivative action. FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE Defendant avails itself of, and adopts such other defenses raised by any other defendants as may be applicable. FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE Defendant reserves the right to assert any and/or all applicable affirmative defense which discovery may reveal appropriate. FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE Defendant denies any and all liability to the extent that Plaintiffs assert that Defendant is liable as a successor, successor in business, successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, alter-ego, subsidiary, wholly or partially owned by, or a member in an entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is asbestos. FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ injuries, if any, were caused, contributed to, brought about and/or aggravated by 16 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 persons neither employed by, nor otherwise subject to, the direction of answering defendant FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ claim for premises liability is barred because the answering defendant did not exercise control or supervise Plaintiffs’ (or Plaintiff’s decedent, if applicable) work at any facility. FORTY-NINTH SEPARATE AFFIRMATIVE DEFENSE Defendant denies any and all liability to the extent that Plaintiffs assert that Defendant is liable as an owner, possessor, lessor, lessee, operator, controller, manager, supervisor, general contractor, subcontractor, architect, engineer or were responsible for the maintenance, control and/or safety at the premises at which Plaintiff was frequenting. FIFTIETH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ action is barred by the doctrines of estoppel, laches and/or waiver. FIFTY-FIRST SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ action is barred by the doctrine of preclusion. FIFTY-SECOND SEPARATE AFFIRMATIVE DEFENSE Any damages which the Plaintiff allegedly sustained resulted solely from his own negligence. FIFTY-THIRD SEPARATE AFFIRMATIVE DEFENSE Plaintiffs’ claims are completely barred or diminished pursuant to the doctrine of comparative negligence. FIFTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE In the event the product(s) at issue was (were) distributed by B.W.P. DISTRIBUTORS, INC., which is also denied, said B.W.P. DISTRIBUTORS, INC., products conformed to all applicable law, regulations, industry standards and the current state the art at the time its products were manufactured. 17 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 FIFTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE B.W.P. DISTRIBUTORS, INC., denies manufacturing, distributing, selling, installing or placing into the stream of commerce any asbestos-containing products. If there were any asbestos- containing products associated with B.W.P. DISTRIBUTORS, INC., to which the plaintiff was exposed, such products were manufactured, distributed, sold and/or installed in conformity with the generally recognized state of the art existing at the time. Moreover, the state of the medical and scientific knowledge and the published literature and other materials reflecting said state of the medical and scientific art at all times pertinent hereto was such that B.W.P. DISTRIBUTORS, INC., neither knew nor could have known that products allegedly associated with it presented a foreseeable risk of harm, if any, to the plaintiff in the normal and expected use of these products, according to the law in full force and effect at the relevant time. B.W.P. DISTRIBUTORS, INC., demands trial by jury. FIFTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE B.W.P. DISTRIBUTORS, INC., denies that plaintiff was ever exposed to a product sold, manufactured, used or supplied by B.W.P. DISTRIBUTORS, INC., which contained asbestos. However, should the plaintiff submit evidence to the contrary, then B.W.P. DISTRIBUTORS, INC., states that any asbestos fibers in such product were entirely encapsulated and, therefore, such products did not emit respirable asbestos fibers into the air. Therefore, such exposure could not have contributed to plaintiff’s alleged injuries. CROSS CLAIM FOR CONTRIBUTION B.W.P. DISTRIBUTORS, INC., hereby makes claim for contribution against each and every other defendant in this action. CROSS CLAIM FOR INDEMNIFICATION While denying liability to plaintiffs as well as the damages and injuries alleged, if this defendant is found liable to the plaintiffs for damages by reason of the alleged acts complained of, this defendant’s alleged negligence was merely constructive, technical and passive or 18 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 vicarious and plaintiffs’ damages and injuries arose with direct and primary negligence, strict liability, breach of contract and implied warranties of the said co-defendants listed in this action. ANSWER TO ALL CROSS CLAIMS This defendant 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 B.W.P. DISTRIBUTORS, INC., requests judgment in its favor dismissing Plaintiffs’ Verified Complaint against it together with the costs and disbursements of this action and for any expenses incurred in the defense thereof, including this Defendant’s attorneys’ fees. FURTHERMORE, defendant B.W.P. DISTRIBUTORS, INC., demands judgment over and against co-defendants on its cross-claim for the amount of any judgment or verdict which may be obtained herein by the Plaintiffs against this defendant, together with costs and disbursements of this action, plus any and all attorneys’ fees, costs of investigation and disbursements. Dated: March 17, 2023 New York, New York McGIVNEY KLUGER CLARK & INTOCIA, P.C. Attorneys for Defendant B.W.P. Distributors, Inc., Wendy R. Kagan ____________________________ WENDY R. KAGAN, ESQ. 80 Broad Street, 23rd Floor New York, New York 10004 (212) 509-3456 To: BELLUCK & FOX, LLP Joseph W. Belluck, Esq. 546 Fifth Avenue, Fifth Floor New York, New York 10036 Tel. (212) 681-1575 19 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 ATTORNEY’S VERIFICATION STATE OF NEW YORK ) : ss.: COUNTY OF NEW YORK ) WENDY R. KAGAN, ESQ., being duly sworn, deposes and says that I am an attorney with the law firm of McGivney, Kluger, Clark & Intoccia, P.C., that I have read the foregoing Standard Answer by B.W.P. Distributors, Inc., and know the contents thereof, and that the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and that as to those matters, I believe them to be true. The sources of my information are file records and phone conversations with agents of the Defendant. The reason this verification is made by deponent and not by Defendant is because Defendant does not reside within the county where its attorneys have an office. Dated: New York, New York March 17, 2023 Wendy R. Kagan WENDY R. KAGAN, ESQ. 20 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 17th day of March 2023, a copy of the foregoing Standard Answer of B.W.P. Distributors, Inc., to the Complaint was emailed this day to plaintiff and all counsel of record noted on the Court’s ECF system. Andrew Scheid Andrew Scheid 21 of 22 FILED: SUFFOLK COUNTY CLERK 03/17/2023 04:57 PM INDEX NO. 609463/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 03/17/2023 Index No.: 609463/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------------------------------X JAMES BROWN, Plaintiffs, vs. ARVINMERITOR, INC., Individually and As Successor to Rockwell International, et al., Defendants. -------------------------------------------------------------------------------X ANSWER TO COMPLAINT Attorneys for Defendant: B.W.P. DISTRIBUTORS, INC., McGIVNEY, KLUGER, CLARK & INTOCCIA, P.C. COUNSELORS AT LAW 80 Broad Street, 23rd Floor New York, New York 10004 (212) 509-3456 22 of 22