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FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017
66-1 7/TMC
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X Index No. 190034/2017
EDWARD L. HABER,
DEFENDANT, CROWLEY
Plaintiff, MARINE SERVICES, INC.'S
AMENDED VERIFIED
-against- ANSWER TO PLAINTIFF'S
VERIFIED COMPLAINT AND
ALCOA STEAMSHIP COMPANY, INC., et al., REPLY TO CROSS-CLAIMS
Defendants.
x
Defendant, CROWLEY MARINE SERVICES, INC., as successor in interest to
DELTA STEAMSHIP LINES, INC. s/h/a CROWLEY MARINE SERVICES, INC.,
individually and as successor in interest to DELTA LINES and DELTA STEAMSHIP
LINES, INC. (hereinafter "CROWLEY"), by its attorneys, Freehill Hogan & Mahar
LLP, as and for its Amended Verified Answer to the Verified Complaint, alleges
upon information and belief as follows:
1. Denies knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 1 of the Verified Complaint.
2. Denies knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 2 of the Verified Complaint.
3. Denies the allegations contained in paragraphs 3 and 4 of the Verified
Complaint, insofar as they pertain to CROWLEY. Except as so denied, denies
knowledge or information as to the remaining allegations contained in paragraphs 3
and 4 of the Verified Complaint.
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ANSWER TO SUBJECT MATTER
JURISDICTION AND GOVERNING LAW
4. Denies the allegations contained in paragraph 5 of the Verified
Complaint.
5. The allegations contained in paragraph 6 of the Verified Complaint
consist solely of conclusions of law, and therefore, no answer is required, but to
the extent an answer may be deemed to be required, the same are denied.
ANSWER TO PERSONAL JURISDICTION AND VENUE
6. Denies the allegations contained in paragraph 7 of the Verified
Complaint, insofar as they pertain to CROWLEY. Except as so denied, denies
knowledge or information as to the remaining allegations contained in paragraph 7
of the Verified Complaint.
7. The allegations set forth in paragraph 8 of the Verified Complaint are
directed to defendants other than CROWLEY and no response is required. To the
extent a response is required, the allegations are denied.
8. Admits that Crowley Maritime Services, Inc. is the successor by
merger to Delta Steamship Lines (sometimes incorrectly named Delta Lines), and
that its principal place of business is in Florida. Except as so admitted, denies the
remaining allegations contained in paragraph 9 of the Verified Complaint.
9. The allegations set forth in paragraphs 10 through 1.2 of the Verified
Complaint are directed to defendants other than CROWLEY and no response is
required. To the extent a response is required, the allegations are denied.
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ANSWER TO GENERAL ALLEGATIONS
10. Denies the allegations contained in paragraphs 13 through 25
(including all sub-parts) of the Verified Complaint.
ANSWER TO FIRST CAUSE OF ACTION: JONES ACT
(ALL SHIPOWNER DEFENDANTS)
11. Responding to paragraph 26 of the Verified Complaint, CROWLEY
repeats and re-alleges each and every answer and denial contained in all of the
above paragraphs and all subsequent paragraphs with the same force and effect as
though fully set forth at length herein.
12. Denies the allegations contained in paragraphs 27 through 29 of the
Verified Complaint, including all sub parts.
ANSWER TO SECOND CAUSE OF ACTION: UNSEAWORTHINESS
UNDER GENERAL ADMIRALTY AND MARITIME LAW
(ALL SHIPOWNER DEFENDANTS)
13. As its response to paragraph 30 of the Verified Complaint, CROWLEY
repeats and re-alleges each and every answer and denial contained in all of the
above paragraphs and all subsequent paragraphs with the same force and effect as
though fully set forth at length herein.
14. Denies the allegations contained in paragraphs 31 through 35 of the
Verified Complaint, including all sub parts.
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AFFIRMATIVE DEFENSES
15. CROWLEY asserts the following Affirmative Defenses as allowed by
law. These Affirmative Defenses are pled, pursuant to CPLR 3018(b) so as to avoid
waiver or surprise and may be mutually exclusive and dependent upon ongoing
disclosure in this matter. CROWLEY reserves the right to amend or supplement
these Affirmative Defenses at any time.
FIRST DEFENSE
16. The Verified Complaint, and each of its causes of action, fails to state
facts sufficient to constitute a cause of action against CROWLEY.
SECOND DEFENSE
17. Plaintiff's claims are governed exclusively by federal maritime law, and
in accordance with maritime law, Plaintiff may not recover any non-pecuniary
damages, or punitive damages, and each maritime defendant's liability is limited to
its comparative fault, if any.
THIRD DEFENSE
18. Plaintiff is not entitled to any recovery for punitive damages under the
Jones Act and/or the General Maritime Law and/or the warranty of seaworthiness
and/or other applicable law, and Plaintiff's claims for punitive damages should be
stricken.
FOURTH DEFENSE
19. CROWLEY did not own and/or operate the vessels that Plaintiff is
alleged to have served upon and was not his employer and is therefore not liable
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under the Jones Act and/or the General Maritime Law and/or the warranty of
seaworthiness, or otherwise.
FIFTH DEFENSE
20. Plaintiff's injuries, if and to the extent they occurred, which
occurrence is expressly denied, were caused or contributed to by his recklessness,
carelessness, and/or negligence. Plaintiff's recovery from CROWLEY, if any, must
be reduced by Plaintiff's comparative fault.
SIXTH DEFENSE
21. The injuries and damages complained of, if any there were, were
proximately caused by or contributed to, in whole or in part, by the carelessness,
negligence, fault or actions of the remaining parties in this action, or by other
persons, corporations or business entities, or were solely and proximately caused
by defects in products manufactured by some other person or persons,
corporations, association or legal entity, and were not caused in any way by
CROWLEY, or by persons or entities for whom CROWLEY is legally liable. Should
CROWLEY be found liable to any Plaintiff, which liability is expressly denied,
CROWLEY is entitled to have any award against it reduced, or eliminated pursuant
to Article 16 of the CPLR, or otherwise, to the extent that the carelessness,
negligence, fault or actions of the remaining parties to these proceedings, or of
other persons, corporations or business entities, caused and/or contributed to a
Plaintiff's damages, if any.
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SEVENTH DEFENSE
22. Plaintiff contributed and/or was comparatively negligent in that he
used and exposed himself to products which he knew or should have known would
be injurious to his health, and/or he failed to take reasonable precautions to guard
against any dangers resulting therefrom.
EIGHTH DEFENSE
23. The injuries and/or damages of which Plaintiff complains were
proximately caused by the intervening acts or superseding negligence of persons,
parties, or entities over whom CROWLEY had no control or responsibility, and for
whose actions CROWLEY is not responsible.
NINTH DEFENSE
24. Plaintiff's alleged injuries were caused by the improper use and
handling of the products at issue, as he failed to take reasonable and/or adequate
steps and precautions for the safe use of the products.
TENTH DEFENSE
25. Any recovery of the Plaintiff must be reduced by collateral source
payments pursuant to CPLR 4545.
ELEVENTH DEFENSE
26. Plaintiff is barred from recovery by the doctrines of accord and
satisfaction, estoppel, judicial estoppel, and payment and release.
TWELFTH DEFENSE
27. Plaintiff's injuries were caused directly, solely and proximately by
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sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiff and not found
in the general public, of which CROWLEY neither knew, had reason to know, nor
could have foreseen.
THIRTEENTH DEFENSE
28. Plaintiff's alleged injuries, losses, or damages, if and to the extent
they occurred, were aggravated by Plaintiff's failure to use reasonable diligence to
mitigate them.
FOURTEENTH DEFENSE
29. Improper and/or insufficient service of process.
FIFTEENTH DEFENSE
30. Plaintiff's injuries and damages, if any, were directly and proximately
caused solely by the Plaintiff's own willful misconduct, recklessness, carelessness,
negligence, breach of his primary duty, or other fault. Plaintiff is, therefore, barred
from recovery herein.
SIXTEENTH DEFENSE
31. Plaintiff's claims are barred by the applicable statutes of limitations,
including those contained in 46 U.S.C. sections 30104 et seq., by any and all
statutes of repose available under law, and/or by the doctrine of laches.
SEVENTEENTH DEFENSE
32. Plaintiff's claims for punitive damages are barred by the Fifth, Sixth,
Eighth and Fourteenth Amendments to the Constitution of the United States of
America and of the Constitution of the State of New York.
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EIGHTEENTH DEFENSE
33. Should CROWLEY be found liable to Plaintiff, which liability is
expressly denied, CROWLEY is entitled to have any award against it rebated,
reduced, or eliminated to the extent that the carelessness, negligence, fault or
actions of the other parties to these proceedings, or by said other persons,
corporations or business entities, caused and/or contributed to Plaintiff's damages,
if any.
NINETEENTH DEFENSE
34. Plaintiff's injuries, if and to the extent they occurred, which
occurrence is expressly denied, were caused or contributed to by the negligence,
fault, or defective products of third parties or others who are bankrupt and/or with
whom Plaintiff has settled or otherwise resolved a claim, thereby proportionately
reducing Plaintiff's claims against CROWLEY.
TWENTIETH DEFENSE
35. Plaintiff's alleged illnesses and injuries, if and to the extent they
occurred, which occurrence is expressly denied, pre-existed or were suffered after
the alleged employment relationship between Plaintiff and CROWLEY, and said
injuries or illnesses were neither caused nor exacerbated by said employment.
TWENTY-FIRST DEFENSE
36. CROWLEY is not liable to Plaintiff since its vessel(s) was/were at all
times built, repaired and/or operated in accordance with applicable government
specifications and standards as required by the United States Government.
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TWENTY-SECOND DEFENSE
37. Pursuant to Section 15-108 of the General Obligations Law, to the
extent that Plaintiff has given a release or covenant not to sue or not to enforce a
judgment to an alleged co-tortfeasor of CROWLEY, Plaintiff's claims are reduced to
the extent of any amount stipulated by the release or covenant, or in the amount of
the consideration paid for it, or in the amount of the released tortfeasor's equitable
share of the damages, whichever is the greatest.
TWENTY-THIRD DEFENSE
38. The allegations of the Verified Complaint do not state a claim against
CROWLEY which will authorize or entitle Plaintiff to recover punitive or exemplary
damages.
TWENTY-FOURTH DEFENSE
39, CROWLEY is entitled to an apportionment of damages, in accordance
with the principles of admiralty and maritime law, with all other parties held liable
to Plaintiff, as well as entities that have entered into or in the future will enter into
settlements with Plaintiff with respect to Plaintiff's alleged exposure to asbestos,
and all bankruptcy estates and/or trusts that have entered into or will in the future
enter into settlements with Plaintiff with respect to Plaintiff's alleged exposure to
asbestos.
TWENTY-FIFTH DEFENSE
40. Upon information and belief, CROWLEY conformed to the scientific
knowledge and data available in the industry and its activities and undertaking, if
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any, were conducted in a reasonable fashion, without negligence, recklessness,
malice or wantonness.
TWENTY-SIXTH DEFENSE
41. At all times material hereto, the state of the medical, industrial, and
scientific arts was that there was no generally accepted or recognized knowledge
of any unavoidably unsafe, inherently dangerous, hazardous or defective character
or nature of asbestos-containing products when used in the manner and for the
purposes intended, so that there was no duty by CROWLEY to know of such
character or nature or to warn Plaintiff or others similarly situated, and that, to the
extent such duty arose, adequate warnings either were given or were not
necessary under all circumstances.
TWENTY-SEVENTH DEFENSE
42. That parties to this action and nonparties, other than CROWLEY, were
negligently or legally responsible, or otherwise at fault for any damages alleged in
the Complaint, which damages are herein denied and therefore, in the event of any
liability, whether by settlement or judgment in favor of any other party against
CROWLEY, the court or jury should apportion fault as to all parties. Furthermore,
CROWLEY requests a judgment and declaration of indemnification and contribution
against all other parties.
TWENTY-EIGHTH DEFENSE
43. Plaintiff's own negligence, fault or conduct caused or contributed to
his injuries, if any, thus proportionately reducing any recovery under the general
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maritime doctrine of comparative fault and/or under 45 U.S.C. §53, as incorporated
by reference into 46 U.S.C. §30104 (formerly 46 U.S.C. App. §688).
TWENTY-NINTH DEFENSE
44. If Plaintiff was exposed to any asbestos or other harmful substance
aboard CROWLEY's alleged vessels, which is denied, such exposure was so
minimal as to be insufficient to establish to a reasonable degree of probability that
said substances aboard CROWLEY's alleged vessels caused or contributed to
produce the injuries and damages alleged.
THIRTIETH DEFENSE
45. CROWLEY was an agent of the United States of America during all or
part of any employment of Plaintiff , and Plaintiff's exclusive remedy as to any
alleged acts, omissions or conduct of CROWLEY is against the United States of
America, pursuant to 46 U.S.C. § 30904 (formerly 46 U.S.C. App. § 745) and 46
U.S.C. § 31104 (formerly 46 U.S.C. App. § 782).
THIRTY-FIRST DEFENSE
46. To the extent Plaintiff is unable to identify both the manufacturers of
the substance, product or equipment which allegedly caused injury and the specific
vessel upon which such substance, product or equipment was allegedly placed,
Plaintiff has failed to state a cause of action upon which relief may be granted.
THIRTY-SECOND DEFENSE
47. This Court lacks personal jurisdiction over CROWLEY.
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THIRTY-THIRD DEFENSE
48. The venue of this action is improper.
THIRTY-FOURTH DEFENSE
49. Plaintiff has failed to name indispensable and/or necessary parties.
THIRTY-FIFTH DEFENSE
50. If any liability is found as against CROWLEY, then said liability will
constitute 50% or less of the total liability assigned to all persons liable, and as
such, the liability of CROWLEY to Plaintiff for non-economic loss shall be limited,
and shall not exceed CROWLEY's equitable share as provided in Article 16 of the
C.P.L.R.
THIRTY-SIXTH DEFENSE
51. All defenses which have been or will be asserted by other persons or
entities in this action are adopted and incorporated by reference as if fully set forth
herein. In addition, CROWLEY will rely upon any and all other further defenses
which become available or appear during discovery in this action and hereby
specifically reserves its right to amend its answer for the purpose of asserting any
such additional defenses.
REPLY TO CROSS-CLAIMS
52. CROWLEY replies to the cross-claims of co-defendants and additional
or third party defendants now filed, or filed in the future, and state that CROWLEY
is not individually liable, jointly and severally liable, or liable over to co-defendants
or additional and/or third-party defendants by way of contribution and/or indemnity.
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WHEREFORE, CROWLEY demands that the Plaintiff's Complaint and all
Cross-Claims against CROWLEY be dismissed with costs and attorneys fees to
CROWLEY, together with costs and attorneys fees, and for such other, further and
different relief as the Court may deem just and proper.
Dated: New York, New York
March 20, 2017
FREEHILL HOGAN = MAHAR LLP
By:
Thom M. Canevari
80 amine Street
New York, New York 10005
(212) 425-1900
canevari@freehill.com
Attorneys for Defendant
CROWLEY MARINE SERVICES, INC.
TO: Donald A. Migliori, Esq.
Motley Rice LLC
Attorneys for Plaintiff
600 Third Avenue, Suite 2101
New York, NY 10015
TO: Jaques Admiralty Law Firm, P.C.
Attorneys for Plaintiff
645 Griswold, Ste. 1370
Detroit, MI 48226-4116
AND ALL CO-DEFENDANTS
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VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
Thomas M. Canevari, an attorney at law, duly admitted to practice in the
Courts of the State of New York, affirms under penalty of perjury as follows:
1. I am the attorney for CROWLEY MARINE SERVICES, INC. in the above
matter and have read the foregoing Amended Verified Answer to Plaintiff's Verified
Complaint and Answer to Cross-Claims and know the contents thereof and upon
information and belief, and I believe the matters alleged therein to be true.
2. The reason this Verification is made by me and not by CROWLEY
MARINE SERVICES, INC. is that CROWLEY MARINE SERVICES, INC. is a
corporation, none of whose officers are presently within the County in which I
maintain my offices.
3. The source of my information and the grounds for my belief are
communications, papers and reports contained in my file.
.Al
Th , 0/ as M. Canevari
Sworn to before me this
V day of March, 2017. ANNETTE CARRUBBA
Public, State of New York
Neal),
No. 01 CA4884574
Qualified in Kings County
Cerlfate Filed in New York County, cs,
icmission Expires April 30, 20 43'"
Com A! •
Notary Public
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Preview
FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 66-1 7/TMC SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No. 190034/2017 EDWARD L. HABER, DEFENDANT, CROWLEY Plaintiff, MARINE SERVICES, INC.'S AMENDED VERIFIED -against- ANSWER TO PLAINTIFF'S VERIFIED COMPLAINT AND ALCOA STEAMSHIP COMPANY, INC., et al., REPLY TO CROSS-CLAIMS Defendants. x Defendant, CROWLEY MARINE SERVICES, INC., as successor in interest to DELTA STEAMSHIP LINES, INC. s/h/a CROWLEY MARINE SERVICES, INC., individually and as successor in interest to DELTA LINES and DELTA STEAMSHIP LINES, INC. (hereinafter "CROWLEY"), by its attorneys, Freehill Hogan & Mahar LLP, as and for its Amended Verified Answer to the Verified Complaint, alleges upon information and belief as follows: 1. Denies knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 1 of the Verified Complaint. 2. Denies knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 2 of the Verified Complaint. 3. Denies the allegations contained in paragraphs 3 and 4 of the Verified Complaint, insofar as they pertain to CROWLEY. Except as so denied, denies knowledge or information as to the remaining allegations contained in paragraphs 3 and 4 of the Verified Complaint. 464517.1 1 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 ANSWER TO SUBJECT MATTER JURISDICTION AND GOVERNING LAW 4. Denies the allegations contained in paragraph 5 of the Verified Complaint. 5. The allegations contained in paragraph 6 of the Verified Complaint consist solely of conclusions of law, and therefore, no answer is required, but to the extent an answer may be deemed to be required, the same are denied. ANSWER TO PERSONAL JURISDICTION AND VENUE 6. Denies the allegations contained in paragraph 7 of the Verified Complaint, insofar as they pertain to CROWLEY. Except as so denied, denies knowledge or information as to the remaining allegations contained in paragraph 7 of the Verified Complaint. 7. The allegations set forth in paragraph 8 of the Verified Complaint are directed to defendants other than CROWLEY and no response is required. To the extent a response is required, the allegations are denied. 8. Admits that Crowley Maritime Services, Inc. is the successor by merger to Delta Steamship Lines (sometimes incorrectly named Delta Lines), and that its principal place of business is in Florida. Except as so admitted, denies the remaining allegations contained in paragraph 9 of the Verified Complaint. 9. The allegations set forth in paragraphs 10 through 1.2 of the Verified Complaint are directed to defendants other than CROWLEY and no response is required. To the extent a response is required, the allegations are denied. 2 464517.1 2 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 ANSWER TO GENERAL ALLEGATIONS 10. Denies the allegations contained in paragraphs 13 through 25 (including all sub-parts) of the Verified Complaint. ANSWER TO FIRST CAUSE OF ACTION: JONES ACT (ALL SHIPOWNER DEFENDANTS) 11. Responding to paragraph 26 of the Verified Complaint, CROWLEY repeats and re-alleges each and every answer and denial contained in all of the above paragraphs and all subsequent paragraphs with the same force and effect as though fully set forth at length herein. 12. Denies the allegations contained in paragraphs 27 through 29 of the Verified Complaint, including all sub parts. ANSWER TO SECOND CAUSE OF ACTION: UNSEAWORTHINESS UNDER GENERAL ADMIRALTY AND MARITIME LAW (ALL SHIPOWNER DEFENDANTS) 13. As its response to paragraph 30 of the Verified Complaint, CROWLEY repeats and re-alleges each and every answer and denial contained in all of the above paragraphs and all subsequent paragraphs with the same force and effect as though fully set forth at length herein. 14. Denies the allegations contained in paragraphs 31 through 35 of the Verified Complaint, including all sub parts. 464517.1 3 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 AFFIRMATIVE DEFENSES 15. CROWLEY asserts the following Affirmative Defenses as allowed by law. These Affirmative Defenses are pled, pursuant to CPLR 3018(b) so as to avoid waiver or surprise and may be mutually exclusive and dependent upon ongoing disclosure in this matter. CROWLEY reserves the right to amend or supplement these Affirmative Defenses at any time. FIRST DEFENSE 16. The Verified Complaint, and each of its causes of action, fails to state facts sufficient to constitute a cause of action against CROWLEY. SECOND DEFENSE 17. Plaintiff's claims are governed exclusively by federal maritime law, and in accordance with maritime law, Plaintiff may not recover any non-pecuniary damages, or punitive damages, and each maritime defendant's liability is limited to its comparative fault, if any. THIRD DEFENSE 18. Plaintiff is not entitled to any recovery for punitive damages under the Jones Act and/or the General Maritime Law and/or the warranty of seaworthiness and/or other applicable law, and Plaintiff's claims for punitive damages should be stricken. FOURTH DEFENSE 19. CROWLEY did not own and/or operate the vessels that Plaintiff is alleged to have served upon and was not his employer and is therefore not liable 4 464517.1 4 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 under the Jones Act and/or the General Maritime Law and/or the warranty of seaworthiness, or otherwise. FIFTH DEFENSE 20. Plaintiff's injuries, if and to the extent they occurred, which occurrence is expressly denied, were caused or contributed to by his recklessness, carelessness, and/or negligence. Plaintiff's recovery from CROWLEY, if any, must be reduced by Plaintiff's comparative fault. SIXTH DEFENSE 21. The injuries and damages complained of, if any there were, were proximately caused by or contributed to, in whole or in part, by the carelessness, negligence, fault or actions of the remaining parties in this action, or by other persons, corporations or business entities, or were solely and proximately caused by defects in products manufactured by some other person or persons, corporations, association or legal entity, and were not caused in any way by CROWLEY, or by persons or entities for whom CROWLEY is legally liable. Should CROWLEY be found liable to any Plaintiff, which liability is expressly denied, CROWLEY is entitled to have any award against it reduced, or eliminated pursuant to Article 16 of the CPLR, or otherwise, to the extent that the carelessness, negligence, fault or actions of the remaining parties to these proceedings, or of other persons, corporations or business entities, caused and/or contributed to a Plaintiff's damages, if any. 5 464517.1 5 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 SEVENTH DEFENSE 22. Plaintiff contributed and/or was comparatively negligent in that he used and exposed himself to products which he knew or should have known would be injurious to his health, and/or he failed to take reasonable precautions to guard against any dangers resulting therefrom. EIGHTH DEFENSE 23. The injuries and/or damages of which Plaintiff complains were proximately caused by the intervening acts or superseding negligence of persons, parties, or entities over whom CROWLEY had no control or responsibility, and for whose actions CROWLEY is not responsible. NINTH DEFENSE 24. Plaintiff's alleged injuries were caused by the improper use and handling of the products at issue, as he failed to take reasonable and/or adequate steps and precautions for the safe use of the products. TENTH DEFENSE 25. Any recovery of the Plaintiff must be reduced by collateral source payments pursuant to CPLR 4545. ELEVENTH DEFENSE 26. Plaintiff is barred from recovery by the doctrines of accord and satisfaction, estoppel, judicial estoppel, and payment and release. TWELFTH DEFENSE 27. Plaintiff's injuries were caused directly, solely and proximately by 6 464517.1 6 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiff and not found in the general public, of which CROWLEY neither knew, had reason to know, nor could have foreseen. THIRTEENTH DEFENSE 28. Plaintiff's alleged injuries, losses, or damages, if and to the extent they occurred, were aggravated by Plaintiff's failure to use reasonable diligence to mitigate them. FOURTEENTH DEFENSE 29. Improper and/or insufficient service of process. FIFTEENTH DEFENSE 30. Plaintiff's injuries and damages, if any, were directly and proximately caused solely by the Plaintiff's own willful misconduct, recklessness, carelessness, negligence, breach of his primary duty, or other fault. Plaintiff is, therefore, barred from recovery herein. SIXTEENTH DEFENSE 31. Plaintiff's claims are barred by the applicable statutes of limitations, including those contained in 46 U.S.C. sections 30104 et seq., by any and all statutes of repose available under law, and/or by the doctrine of laches. SEVENTEENTH DEFENSE 32. Plaintiff's claims for punitive damages are barred by the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States of America and of the Constitution of the State of New York. 7 464517.1 7 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 EIGHTEENTH DEFENSE 33. Should CROWLEY be found liable to Plaintiff, which liability is expressly denied, CROWLEY is entitled to have any award against it rebated, reduced, or eliminated to the extent that the carelessness, negligence, fault or actions of the other parties to these proceedings, or by said other persons, corporations or business entities, caused and/or contributed to Plaintiff's damages, if any. NINETEENTH DEFENSE 34. Plaintiff's injuries, if and to the extent they occurred, which occurrence is expressly denied, were caused or contributed to by the negligence, fault, or defective products of third parties or others who are bankrupt and/or with whom Plaintiff has settled or otherwise resolved a claim, thereby proportionately reducing Plaintiff's claims against CROWLEY. TWENTIETH DEFENSE 35. Plaintiff's alleged illnesses and injuries, if and to the extent they occurred, which occurrence is expressly denied, pre-existed or were suffered after the alleged employment relationship between Plaintiff and CROWLEY, and said injuries or illnesses were neither caused nor exacerbated by said employment. TWENTY-FIRST DEFENSE 36. CROWLEY is not liable to Plaintiff since its vessel(s) was/were at all times built, repaired and/or operated in accordance with applicable government specifications and standards as required by the United States Government. 8 464517.1 8 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 TWENTY-SECOND DEFENSE 37. Pursuant to Section 15-108 of the General Obligations Law, to the extent that Plaintiff has given a release or covenant not to sue or not to enforce a judgment to an alleged co-tortfeasor of CROWLEY, Plaintiff's claims are reduced to the extent of any amount stipulated by the release or covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages, whichever is the greatest. TWENTY-THIRD DEFENSE 38. The allegations of the Verified Complaint do not state a claim against CROWLEY which will authorize or entitle Plaintiff to recover punitive or exemplary damages. TWENTY-FOURTH DEFENSE 39, CROWLEY is entitled to an apportionment of damages, in accordance with the principles of admiralty and maritime law, with all other parties held liable to Plaintiff, as well as entities that have entered into or in the future will enter into settlements with Plaintiff with respect to Plaintiff's alleged exposure to asbestos, and all bankruptcy estates and/or trusts that have entered into or will in the future enter into settlements with Plaintiff with respect to Plaintiff's alleged exposure to asbestos. TWENTY-FIFTH DEFENSE 40. Upon information and belief, CROWLEY conformed to the scientific knowledge and data available in the industry and its activities and undertaking, if 9 464517.1 9 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 any, were conducted in a reasonable fashion, without negligence, recklessness, malice or wantonness. TWENTY-SIXTH DEFENSE 41. At all times material hereto, the state of the medical, industrial, and scientific arts was that there was no generally accepted or recognized knowledge of any unavoidably unsafe, inherently dangerous, hazardous or defective character or nature of asbestos-containing products when used in the manner and for the purposes intended, so that there was no duty by CROWLEY to know of such character or nature or to warn Plaintiff or others similarly situated, and that, to the extent such duty arose, adequate warnings either were given or were not necessary under all circumstances. TWENTY-SEVENTH DEFENSE 42. That parties to this action and nonparties, other than CROWLEY, were negligently or legally responsible, or otherwise at fault for any damages alleged in the Complaint, which damages are herein denied and therefore, in the event of any liability, whether by settlement or judgment in favor of any other party against CROWLEY, the court or jury should apportion fault as to all parties. Furthermore, CROWLEY requests a judgment and declaration of indemnification and contribution against all other parties. TWENTY-EIGHTH DEFENSE 43. Plaintiff's own negligence, fault or conduct caused or contributed to his injuries, if any, thus proportionately reducing any recovery under the general 10 464517.1 10 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 maritime doctrine of comparative fault and/or under 45 U.S.C. §53, as incorporated by reference into 46 U.S.C. §30104 (formerly 46 U.S.C. App. §688). TWENTY-NINTH DEFENSE 44. If Plaintiff was exposed to any asbestos or other harmful substance aboard CROWLEY's alleged vessels, which is denied, such exposure was so minimal as to be insufficient to establish to a reasonable degree of probability that said substances aboard CROWLEY's alleged vessels caused or contributed to produce the injuries and damages alleged. THIRTIETH DEFENSE 45. CROWLEY was an agent of the United States of America during all or part of any employment of Plaintiff , and Plaintiff's exclusive remedy as to any alleged acts, omissions or conduct of CROWLEY is against the United States of America, pursuant to 46 U.S.C. § 30904 (formerly 46 U.S.C. App. § 745) and 46 U.S.C. § 31104 (formerly 46 U.S.C. App. § 782). THIRTY-FIRST DEFENSE 46. To the extent Plaintiff is unable to identify both the manufacturers of the substance, product or equipment which allegedly caused injury and the specific vessel upon which such substance, product or equipment was allegedly placed, Plaintiff has failed to state a cause of action upon which relief may be granted. THIRTY-SECOND DEFENSE 47. This Court lacks personal jurisdiction over CROWLEY. 11 464517.1 11 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 THIRTY-THIRD DEFENSE 48. The venue of this action is improper. THIRTY-FOURTH DEFENSE 49. Plaintiff has failed to name indispensable and/or necessary parties. THIRTY-FIFTH DEFENSE 50. If any liability is found as against CROWLEY, then said liability will constitute 50% or less of the total liability assigned to all persons liable, and as such, the liability of CROWLEY to Plaintiff for non-economic loss shall be limited, and shall not exceed CROWLEY's equitable share as provided in Article 16 of the C.P.L.R. THIRTY-SIXTH DEFENSE 51. All defenses which have been or will be asserted by other persons or entities in this action are adopted and incorporated by reference as if fully set forth herein. In addition, CROWLEY will rely upon any and all other further defenses which become available or appear during discovery in this action and hereby specifically reserves its right to amend its answer for the purpose of asserting any such additional defenses. REPLY TO CROSS-CLAIMS 52. CROWLEY replies to the cross-claims of co-defendants and additional or third party defendants now filed, or filed in the future, and state that CROWLEY is not individually liable, jointly and severally liable, or liable over to co-defendants or additional and/or third-party defendants by way of contribution and/or indemnity. 12 464517.1 12 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 WHEREFORE, CROWLEY demands that the Plaintiff's Complaint and all Cross-Claims against CROWLEY be dismissed with costs and attorneys fees to CROWLEY, together with costs and attorneys fees, and for such other, further and different relief as the Court may deem just and proper. Dated: New York, New York March 20, 2017 FREEHILL HOGAN = MAHAR LLP By: Thom M. Canevari 80 amine Street New York, New York 10005 (212) 425-1900 canevari@freehill.com Attorneys for Defendant CROWLEY MARINE SERVICES, INC. TO: Donald A. Migliori, Esq. Motley Rice LLC Attorneys for Plaintiff 600 Third Avenue, Suite 2101 New York, NY 10015 TO: Jaques Admiralty Law Firm, P.C. Attorneys for Plaintiff 645 Griswold, Ste. 1370 Detroit, MI 48226-4116 AND ALL CO-DEFENDANTS 13 464517.1 13 of 14 FILED: NEW YORK COUNTY CLERK 03/20/2017 04:04 PM INDEX NO. 190034/2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 03/20/2017 VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) Thomas M. Canevari, an attorney at law, duly admitted to practice in the Courts of the State of New York, affirms under penalty of perjury as follows: 1. I am the attorney for CROWLEY MARINE SERVICES, INC. in the above matter and have read the foregoing Amended Verified Answer to Plaintiff's Verified Complaint and Answer to Cross-Claims and know the contents thereof and upon information and belief, and I believe the matters alleged therein to be true. 2. The reason this Verification is made by me and not by CROWLEY MARINE SERVICES, INC. is that CROWLEY MARINE SERVICES, INC. is a corporation, none of whose officers are presently within the County in which I maintain my offices. 3. The source of my information and the grounds for my belief are communications, papers and reports contained in my file. .Al Th , 0/ as M. Canevari Sworn to before me this V day of March, 2017. ANNETTE CARRUBBA Public, State of New York Neal), No. 01 CA4884574 Qualified in Kings County Cerlfate Filed in New York County, cs, icmission Expires April 30, 20 43'" Com A! • Notary Public 14 464517.1 14 of 14