On January 10, 2017 a
Answer
was filed
involving a dispute between
Stacey Lynn Brown As Administratrix Of The Estate Of Steven L. Hall, Deceased,
and
Ace Hardware,
Ace Hardware Corporation,
Air & Liquid Systems Corporation, As Successor By Merger To Buffalo Pumps, Inc.,
Alfa Laval, Inc.,
Allegheny Teledyne Incorporated, Individually And As Successor To Allegheny Technologies Incorporated And Farris Valves And Or Sprague Pumps,
Amec Construction Management, Inc.,
American Biltrite, Inc., Individually And Successor To Amtico Floors,
Amtrol, Inc., Individually And As Successor To Thrush Products, Inc.,
A.O. Smith Water Products,
Armstrong International, Inc.,
Atwood & Morrill Co., Inc. D B A Weir Valves & Controls Usa Inc.,
Auburn Technology, Inc. F K A Alco Power, Inc.,
Aurora Pump Company,
Bechtel Corporation,
Blackmer Pump,
Borgwarner Morse Tec Llc,
Bw Ip International Co., Formerly Known As Borg Warner Industrial Products Inc., A Former Subsidiary Of And Successor To Borg Warner Corp. And Byron Jackson Pumps,
Carrier Corporation,
Cbs Corporation, A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Clark-Reliance Corporation, Individually And As Successor To Jerguson,
Cleaver-Brooks Company F K A Aqua-Chem, Inc.,
Courter & Company, Inc.,
Crane Co., Individually And As Successor To Cochrane,
Croll-Reynolds Engineering Company, Inc.,
Crosby Valve And Gage Company,
Crosby Valve, Inc.,
Cytec Engineered Materials, Inc. F K A Fiberite Corporation And A K A Ici Composites, Inc.,
Cytec Industries Inc., Individually And As Successor To American Cyanamid Company,
Dap, Inc. K N A La Mirada Products Co., Inc.,
Dean Pump Division,
Dezurik, Inc.,
Durez Corporation,
Duro Dyne Corporation,
E.I. Team, Inc. F K A J.L. Murphy, Inc.,
Electrolux Home Products, Inc., Individually And As Successor To Tappan And Copes-Vulcan,
Elliott Turbomachinery Co., Inc.,
Fairbanks Company,
Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation, Individually And As Successor To Northern Pump Company, Coffin And Peerless Pump Company,
Foster Wheeler, Llc,
Gardner Denver, Inc.,
General Electric Company,
Genuine Partscompany,
George A. Fuller Company,
Georgia-Pacific Corporation, Individually And As Successor To Bestwall Gypsum Company,
Gg Of Florida, Inc., F K A Higbee, Inc.,
Goodall Rubber Co.,
Goulds Pumps, Inc.,
Greene, Tweed & Co., Llp, Individually And As Successor To Palmetto Packings,
Grinnell Corporation,
Henry Technologies, Inc.,
Hexion Specialty Chemicals, Inc. F K A Borden Chemical, Inc.,
Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp.,
Howden Buffalo, Inc., Individually And As Successor-In-Interest To Fb Sturtevant, The Howden Buffalo Group And Buffalo Fan,
Imo Industries, Inc. F K A Delaval, Inc., Individually And As Successor To Turbine Equipment Company,
I.T.T. Industries, Inc., Individually And As Successor To Bell & Gossett,
I.T.T. Industries, Inc., Individually And As Successor To Hoffman Specialty, Bell & Gossett, And Foster Engineering,
Jenkins Bros.,
John Crane, Inc.,
Kaiser Gypsum Company, Inc.,
Koppers Company, Inc.,
Koppers Industries, Inc.,
Lighttolier Incorporated,
Maremont Corporation, Individually And As Successor To Grizzly,
Metropolitan Life Insurance Co.,
Morse Diesel, Inc.,
Morse Diesel International, Inc.,
Napa Auto Parts A K A National Automotive Parts Association,
Nash Engineering Company,
Northrop Grumman Corporation, Individually And As Successor To George A. Fuller Company,
Occidental Chemical Corporation, Individually And As Successor To Durez Corporation,
Owens-Illinois, Inc.,
Patterson Pump Company, A Subsidiary Of The Gorman-Rupp Company And Individually And As Successor To C.H. Wheeler Manufacturing And Griscom Russell,
Plastics Engineering Company, Individually And As Successor To Plenco,
Pneumo Abex Corporation,
Pneumo-Abex Llc, Individually And As Successor To Abex Corporation, A Delaware Corporation,
Progress Lighting, Inc.,
Research-Cottrell, Inc. N K A Awt Air Company, Inc.,
Riley Power, Inc. F K A Babcock Borsig Power, Inc. And F K A Riley Stoker Corporation D B A Db Riley, Inc.,
Rogers Corporation,
R.T Vanderbilt Company, Inc., Individually And As Successor To International Tale Co., International Pulp Co., And Governeur Tale Co., Inc.,
Sid Harvey Industries, Inc.,
Sid Harvey Supply, Inc.,
Spence Engineering Company, Inc.,
Spirax Sarco, Inc.,
Spx Cooling Technologies, Inc., Individually As Successor To Marley Cooling Technologies And Marley Cooling Towers,
Superior Lidgerwood Mundy Corp., A K A Lidgerwood Manufacturing Co., Individually And As Successor To M.T. Davidson Co.,
Thomas O'Connor & Company, Inc., Currently Known As O'Connor Constructors, Inc.,
Thrush Co., Inc.,
Treadwell Corporation,
Turner Construction Company,
Tuthill Corporation, Individually And As Successor To Kinney Vacuum Pump Company, Kinney Pump Company And Murray Turbine,
Tyco Flow Control, Inc., Individually And As Successor To Keystone And Grinnell Corporation,
Tyco International,
Union Carbide Corporation,
Union Pumps, As A Textron Company,
United Conveyor Corporation,
Velan Valve Corp.,
Warren Pumps, Llc, Individually And As Successor To The Quimby Pump Company,
William Powell Company,
Wolff & Munier, Inc.,
York International Corporation, Individually And As Successor To Frick Company,
Yuba Heat Transfer, A Division Of Connell Limited Partnership N K A Spx Heat Transfer Llc,
Zurn Industries, Inc. A K A And Successor-In-Interest To Erie City Iron Works,
for Torts - Asbestos
in the District Court of New York County.
Preview
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STEVEN LEROY HALL, Index No. 190012/2017
Plaintiff,
against VERIFIED ANSWER TO
PLAINTIFF’S SECOND
A.O. SMITH WATER PRODUCTS, et al., AMENDED SUMMONS
AND VERIFIED
Defendants. COMPLAINT AND CROSS-
CLAIMS OF DEFENDANT
LIGHTOLIER, INC.
Defendant Lightolier, Inc., (“Lightolier”), by its attorneys, Darger Errante Yavitz & Blau
LLP, answers the Second Amended Verified Complaint (the “Complaint”) of Plaintiff Steven
Leroy Hall (“Plaintiff”) as follows:
THE PARTIES
1. Lightolier denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraphs 1 through 3 of the Complaint.
2. Paragraph 4 of the Complaint contains no allegations to which a response is
required; to the extent a response is required, however, Lightolier denies the allegations contained
in the aforesaid paragraph of the Complaint, and denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain
to other parties.
3. Lightolier denies the allegations contained in paragraph 5 of the Complaint insofar
as such allegations pertain to Lightolier, except admits that Lightolier does business in this State,
and denies knowledge or information sufficient to form a belief as to the truth of the allegations
contained in the aforesaid paragraph as they pertain to other parties.
4. Lightolier denies knowledge or information sufficient to form a belief as to the truth
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of the allegations contained in paragraphs 6 through 10 of the Complaint.
5. Lightolier denies the allegations contained in paragraph 11 of the Complaint, except
admits that Lightolier has done business in the State of New York.
6. Lightolier denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs 12 through 15 of the Complaint.
ANSWER TO THE ALLEGATIONS OF PLAINTIFF’S INITIAL COMPLAINT
THE PARTIES
7. Lightolier denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraphs 1 through 3 of the Initial Complaint.
8. Paragraph 4 of the Initial Complaint contains no allegations to which a response is
required; to the extent a response is required, however, Lightolier denies the allegations contained
in the aforesaid paragraph of the Initial Complaint, and denies knowledge or information sufficient
to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain
to other parties.
9. Lightolier denies the allegations contained in paragraph 5 of the Initial Complaint
insofar as such allegations pertain to Lightolier, except admits that Lightolier does business in this
State, and denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in the aforesaid paragraph as they pertain to other parties.
10. Lightolier denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs 6 through 97 of the Initial Complaint.
11. Lightolier denies the allegations contained in paragraph 98 of the Initial Complaint
insofar as such allegations pertain to Lightolier, except admits that Lightolier does business in this
State, and denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in the aforesaid paragraph as they pertain to other parties.
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12. Lightolier denies the allegations contained in paragraphs 99 through 105 of the
Initial Complaint insofar as such allegations pertain to Lightolier, and denies knowledge or
information sufficient to form a belief as to the allegations contained in the aforesaid paragraphs
as they pertain to other parties.
AS TO THE FIRST CAUSE OF ACTION SOUNDING IN NEGLICENCE
13. In response to paragraph 106 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 105 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
14. Lightolier denies the allegations contained in paragraphs 107 through 114 of the
Initial Complaint, including all sub-parts therein, insofar as such allegations pertain to Lightolier,
and denies knowledge or information sufficient to form a belief as to the truth of the allegations
contained in the aforesaid paragraphs as they pertain to other parties.
AS TO THE SECOND CAUSE OF ACTION SOUNDING IN
BREACH OF WARRANTY
15. In response to paragraph 115 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 114 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
16. Lightolier denies the allegations contained in paragraphs 116 through 119 of the
Initial Complaint insofar as such allegations pertain to Lightolier, and denies knowledge or
information sufficient to form a belief as to the truth of the allegations contained in the aforesaid
paragraphs as they pertain to other parties.
AS TO THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY
17. In response to paragraph 120 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 119 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
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18. Lightolier denies the allegations contained in paragraphs 121 through 129 of the
Initial Complaint insofar as such allegations pertain to Lightolier, and denies knowledge or
information sufficient to form a belief as to the truth of the allegations contained in the aforesaid
paragraphs as they pertain to other parties.
AS TO THE FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS
19. In response to paragraph 130 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 129 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
20. Lightolier denies the allegations contained in paragraphs 131 through 148 of the
Initial Complaint, including all sub-parts therein, insofar as such allegations pertain to Lightolier,
denies knowledge or information sufficient to form a belief as to the truth of the allegations
contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of
law to the Court.
AS TO THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT
METROPOLITAN LIFE INSURANCE COMPANY
21. In response to paragraph 149 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 148 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
22. Lightolier denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs 150 through 156 of the Initial Complaint.
AS TO THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
COLLECTIVE LIABILITY / CONCERT OF ACTION
23. In response to paragraph 157 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 156 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
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24. Lightolier denies the allegations contained in paragraphs 158 through 172 of the
Initial Complaint, including all sub-parts therein, insofar as such allegations pertain to Lightolier,
and denies knowledge or information sufficient to form a belief as to the truth of the allegations
contained in the aforesaid paragraphs as they pertain to other parties.
AS TO THE SEVENTH CAUSE OF ACTION
AGAINST DEFENDANT CONTRACTORS
25. In response to paragraph 173 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 172 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
26. Paragraph 174 of the Initial Complaint contains no allegations to which a response
is required; to the extent a response is required, however, Lightolier denies the allegations
contained in the aforesaid paragraph of the Initial Complaint, and denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as
they pertain to other parties.
27. Lightolier denies the allegations contained in paragraphs 175 through 186 of the
Initial Complaint insofar as such allegations pertain to Lightolier, denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
they pertain to other parties, and refers all questions of law to the Court.
AS TO THE EIGHTH CAUSE OF ACTION
FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
28. In response to paragraph 187 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 186 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
29. Lightolier denies the allegations contained in paragraphs 188 through 202 of the
Complaint insofar as such allegations pertain to Lightolier, denies knowledge or information
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sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
they pertain to other parties, and refers all questions of law to the Court.
AS TO THE NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY
30. In response to paragraph 203 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 202 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
31. Lightolier denies the allegations contained in paragraphs 204 through 215 of the
Initial Complaint insofar as such allegations pertain to Lightolier, denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
they pertain to other parties, and refers all questions of law to the Court.
AS TO THE TENTH CAUSE OF ACTION PUNITIVE DAMAGES
32. In response to paragraph 216 of the Initial Complaint, Lightolier repeats, reiterates,
and realleges each and every response to the allegations contained in paragraphs 1 through 215 of
the Initial Complaint with the same force and effect as if set forth at length hereinafter.
33. Lightolier denies the allegations contained in paragraph 217 of the Initial Complaint
insofar as such allegations pertain to Lightolier, and denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain
to parties other than Lightolier.
FOR A FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state cognizable claims as against Lightolier.
FOR A SECOND AFFIRMATIVE DEFENSE
While denying Plaintiff’s allegations with respect to liability, to the extent that negligence
or culpable conduct may be proven, the acts of Lightolier are not a proximate cause of any injuries
to Plaintiff.
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FOR A THIRD AFFIRMATIVE DEFENSE
The Complaint fails to comply with the most minimal pleading requirements.
FOR A FOURTH AFFIRMATIVE DEFENSE
To the extent that the Complaint and the claims made by Plaintiff were not commenced
within the time limited by law, the Complaint is barred by the applicable statute of limitations
and/or laches.
FOR A FIFTH AFFIRMATIVE DEFENSE
In the event that Plaintiff used any asbestos-containing product(s), said product(s) was
misused, or improperly used, which misuse or improper use proximately caused and contributed,
in whole or in part, to the claims alleged by Plaintiff in the Complaint.
FOR A SIXTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff failed and neglected to maintain this action in a swift, diligent,
and timely fashion, the Complaint is barred by waiver and laches.
FOR A SEVENTH AFFIRMATIVE DEFENSE
The injuries and/or illnesses to Plaintiff, if any, are unrelated to any act or omission of
Lightolier or any individual acting under its direction or control.
FOR AN EIGHTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce
the injuries and disabilities alleged in the Complaint.
FOR A NINTH AFFIRMATIVE DEFENSE
If Plaintiff sustained the injuries and damages as alleged, the same were caused, in whole
or in part, by the conduct of one or more persons or entities over whom Lightolier exercised no
control and with whom Lightolier had no legal relationship.
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FOR A TENTH AFFIRMATIVE DEFENSE
To the extent that Lightolier conformed to the scientific knowledge and research data
available to industry and the scientific community, Lightolier have fulfilled its obligations, if any,
herein, and the Complaint is barred, in whole or in part.
FOR AN ELEVENTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff alleges rights assertedly derived from oral warranties,
statements, or undertakings on the part of Lightolier, the Complaint is barred by the applicable
statute of frauds.
FOR A TWELFTH AFFIRMATIVE DEFENSE
To the extent that the claims pleaded by Plaintiff fail to accord with the Uniform
Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint is barred.
FOR A THIRTEENTH AFFIRMATIVE DEFENSE
To the extent that any of the products for which liability is charged to Lightolier, which is
denied, were modified, altered, qualified, assembled, or in any other way materially varied, which
same may be causally related to the claims of Plaintiff, the Complaint is barred.
FOR A FOURTEENTH AFFIRMATIVE DEFENSE
The cause(s) of action pleaded in the Complaint insofar as they assert an alleged cause of
action for express and/or implied warranties and the alleged breaches thereof, as against Lightolier,
is legally insufficient by reason of the failure to allege privity of contract and/or privity of
warranties between Plaintiff and Lightolier.
FOR A FIFTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, insofar as Plaintiff relies upon allegations of negligence,
breaches of warranties, fraudulent representations and violations of obligations of strict products
liability as against Lightolier, said causes of action fail to state facts sufficient to constitute causes
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of action as against Lightolier by reason of the failure to allege the freedom of Plaintiff from
contributory negligence or fault, and if Plaintiff sustained the injuries, losses and other damages
complained of in the Complaint, such injuries, losses, and damages were caused and brought about,
in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or the culpable
conduct of Plaintiff.
FOR A SIXTEENTH AFFIRMATIVE DEFENSE
The injuries and/or illnesses to Plaintiff, if any, arose, in whole or in part out of the risks,
hazards and dangers incident to the occupation of Plaintiff, all of which, whether related to asbestos
or not, were open, obvious and well known to Plaintiff, and the Complaint is barred by virtue of
Plaintiff’s assumption of the risks thereof.
FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, Lightolier complied with all safety rules and regulations in
effect at the relevant times and acted reasonably in all of its activities.
FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
To the extent that the use, application, employment, surrounding conditions, safety
precautions, and other circumstances attendant upon the material allegedly used by Plaintiff were
determined, controlled, selected, or limited by him and/or by others for whose acts, omissions, or
breach Lightolier is not liable, the Complaint is barred, in whole or in part.
FOR A NINETEENTH AFFIRMATIVE DEFENSE
The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workmen’s
Compensation statutes and shall have constituted an industrial disability and the exclusive remedy,
if any, shall lie within the terms and ambit of said statutes.
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FOR A TWENTIETH AFFIRMATIVE DEFENSE
Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages
complained of in the Complaint, such injuries, losses, and damages were caused or brought about,
in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable
conduct of parties or third parties to this action, other than Lightolier, and over whom Lightolier
had neither control nor right of control.
FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages
complained of in the Complaint, such injuries, losses, and damages were caused or brought about,
in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable
conduct of Plaintiff.
FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
Upon information and belief, any recovery in this action by Plaintiff, if any, must be
diminished and reduced in the proportion which said culpable conduct of Plaintiff bears to the
alleged culpable conduct of Lightolier, if any, which allegedly caused said injuries, losses, and
damages.
FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
At all times during the conduct of its corporate operations, Lightolier and the agents,
servants, and/or employees of Lightolier complied with all applicable law, regulations, standards,
and the available knowledge, and technology of the medical, scientific, and industrial
communities.
FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
At all times material hereto, the state of the medical, industrial and scientific arts,
knowledge, and technology was that there was no generally accepted or recognized nature of
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asbestos-containing products when used in the manner and for the purposes intended, so that there
was no duty by Lightolier to know of such character or nature or to warn Plaintiff, or others
similarly situated, and to the extent such duty arose, adequate warnings either were given or were
not necessary under all circumstances.
FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
The parties, other than Lightolier, who were responsible for the conditions of Plaintiff’s
work environment were sophisticated purchasers upon whom devolved all responsibility for the
use of the products referred to in the Complaint.
FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
In the event itshould be proven at the time of trial that all the defendants are subject to
liability, then, Lightolier’s share of such liability would be of such a de minimus amount as to
make itscontribution for damages negligible, and Lightolier would be entitled to contribution,
either in whole or in part, from the co-defendants not represented by this Verified Answer and
Cross-Claims.
FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
The action cannot proceed in the absence of all parties who should be named in accordance
with Rule 19 of the Federal Rules of Civil Procedure and/or CPLR 1001.
FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Proceeding in this action without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight
Insulation, Owens-Corning and/or Standard Insulations, W.R. Grace, and all other entities in
Bankruptcy relating thereto, would be in violation of Lightolier’s constitutional rights.
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FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff relies on the New York Law, L. 1986. c. 682, Section 4 as
grounds for reviving or maintaining the action, said statute(s) is unconstitutional and deprives
Lightolier of its constitutional rights and is wholly void and unenforceable.
FOR A THIRTIETH AFFIRMATIVE DEFENSE
To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and
prompt notice of any such breach of warranty to Lightolier.
FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
Any recovery by Plaintiff in this action must be reduced by collateral source payments
pursuant to CPLR Section 4545.
FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
To the extent that Plaintiff contributed to his injuries by the use or misuse, either in whole
or in part, of other substances, products, medications, and drugs, including, but not limited to any
tobacco products, any liability should be reduced by the extent of any use and/or injuries related
thereto or caused thereby pursuant to the Restatement of Torts (Second) §433A.
FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
If Plaintiff was caused to sustain personal injuries at the time and place set forth in the
Complaint and in the manner alleged therein through any carelessness, recklessness, acts,
omissions, negligence, and/or breaches of duty and/or warranty and/or contract, other than that of
Plaintiff, then the said damages arose out of the carelessness, recklessness, acts, omissions,
negligence, and breaches of duty and/or warranty and/or contract in fact or implied-in-law, upon
the part of the co-defendants and third-party defendants now or hereafter named, with
indemnification and/or contribution due to Lightolier as implied-in-fact or implied-in-law, and if
Lightolier is found liable as to Plaintiff and/or any third-party Plaintiffs for the injuries and
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damages set forth in the Complaint and/or the third-party complaints, then the said co-defendants
and third-party defendants now or hereafter named will be liable jointly and severally to Lightolier
and will be bound to fully indemnify and hold Lightolier harmless for the full amount of any
verdict or judgment, and/or Lightolier is entitled to contribution, in whole or in part, from each of
the co-defendants and third-party defendants now or hereafter named, together with the costs and
disbursements incurred in the defense of this action.
FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff was exposed to toxic substances, any liability should be reduced
to the extent any injuries are related to thereto or caused thereby.
FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff seeks punitive damages against Lightolier and relies on Section
4 of the New York Laws 1986, c. 682 as grounds for reviving or maintaining the action, such
damages are improper and are not authorized by law since this statute does not revive any claims
for punitive damages, leaving each of such claims time barred in its entirety.
FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff seeks punitive damages against Lightolier, these damages are
improper and unwarranted, not authorized by law, and are unconstitutional. Subjecting Lightolier
to multiple trials and the multiple impositions of punitive damages for a single course of conduct
is a violation of both substantive and procedural due process under the Fourteenth Amendment to
the United States Constitution and the Constitution of the State of New York. Furthermore, the
standard governing the award of punitive damages is constitutionally void for vagueness.
FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
The injuries and/or illnesses, if any, sustained by Plaintiff, were caused or contributed to
by the fault, neglect, and want of care on the part of Plaintiff, or on the part of others for whose
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acts or omissions or breach of legal duty, and Lightolier is not liable.
FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiff’s claims for punitive damages cannot be sustained because an award of punitive
damages under New York state law by a jury would violate Lightolier’s privileges and immunities,
due process and equal protection rights guaranteed under the Fourteenth Amendment to the United
States Constitution, and the Commerce Clause under Article I to the United States Constitution,
as well as the New York Constitution, and would be improper under the common law and public
policies of New York.
FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
Lightolier pleads comment k to the Restatement (Second) of Torts, Section 402A.
FOR A FORTIETH AFFIRMATIVE DEFENSE
Each of Plaintiff’s claims is barred by prior accord and satisfaction.
FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
To the extent that the physically injured Plaintiff alleged asbestos exposure occurred prior
to the date of his/her marriage, no loss of consortium claim may be asserted.
FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff’s claims for exemplary or punitive damages are barred because such damages are
not recoverable or warranted in this action.
FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
Article 16 of the Civil Practice Law and Rules applies to this action and pursuant to the
law of New York, the liability, if any, of Lightolier for non-economic loss is not joint and several
but shall be limited to the proportionate share, if any, attributed to Lightolier.
FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
Lightolier’s activities and undertakings were conducted in a reasonable fashion, without
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recklessness, malice, or wantonness, and Plaintiff may not recover in this action any compensatory,
exemplary, or punitive damages against Lightolier.
FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
Lightolier asserts that this Court lacks personal jurisdiction over this action.
FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
Lightolier asserts that this Court lacks subject matter jurisdiction over this action.
FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
Lightolier gave, made or otherwise extended no warranties, whether express or implied,
upon which Plaintiff has a right to rely.
FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
Lightolier denies specifically that, during the periods of exposure alleged in the Complaint,
it processed, manufactured, designed, supplied, developed, tested, fashioned, packaged,
distributed, delivered, sold, and/or otherwise placed in the stream of commerce a substantial and/or
any percentage of the asbestos-containing products to which the physically injured Plaintiff was
caused to come into contact and which Plaintiff was caused to breathe, inhale, and/or digest which
thereby caused Plaintiff alleged injuries and resulting damages alleged in the Complaint.
FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
Plaintiff’s claims should be dismissed on the grounds of improper venue and/or forum non
conveniens.
FOR A FIFTIETH AFFIRMATIVE DEFENSE
If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are
the result of an idiosyncratic reaction, rather than the result of any negligence or breach of duty
attributable in any manner to Lightolier.
FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
The physically injured Plaintiff may have significant pre-existing medical histories that
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were the causative factor of the alleged injuries.
FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
Lightolier asserts that, in all respects, it conducted its operations in a reasonable manner.
FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are
the result of an operation of nature, rather than the result of want of care or breach of duty by
Lightolier.
FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
Any verdict or judgment against any defendant, including Lightolier, is entitled to
reduction pursuant to General Obligations Law § 15-108, on the basis of prior settlements and/or
compromises.
FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
All defenses that have been or will be asserted by other defendants in this action are adopted
and incorporated by reference as if fully set forth at length herein as defenses to the Complaint.
FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
Lightolier reserves the right to amend this Verified Answer and Cross-Claims to assert
additional defenses upon discovery of the specific facts upon which Plaintiff bases its claims
for relief, and upon completion of further discovery.
ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS
Lightolier denies any and all cross-claims for contribution and/or indemnification that have
been asserted or may be asserted at any time by co-defendants in this action.
CROSS-CLAIMS AGAINST CO-DEFENDANTS AND THIRD-PARTY DEFENDANTS
If Plaintiff was caused to sustain personal injuries at the time and place set forth in the
Complaint and alleged therein through any carelessness, recklessness, acts, omissions, negligence,
and/or breaches of duty and/or warranty and/or contract, other than that of Plaintiff, then the such
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injuries arose out of the carelessness, recklessness, acts, omissions, negligence, and breaches of
duty and/or warranty and/or contract in-fact or implied-in-law, upon the part of the co-defendants
and third-party defendants now or hereafter named herein with indemnification and/or contribution
to Lightolier as implied-in-fact or implied-in-law, and if Lightolier is found liable as to Plaintiff
and/or third-party Plaintiff(s) for the injuries and damages set forth in the Complaint and/or in any
third-party complaint(s), then the said co-defendants and third-party defendants will be liable
jointly and severally to Lightolier and should indemnify and hold Lightolier harmless for the full
amount of any verdict or judgment, or in the alternative, Lightolier is entitled to contribution, in
whole or in part, from each of the co-defendants and third-party defendants now or hereafter named
herein, together with the costs and disbursements incurred in the defense of this action.
WHEREFORE, Lightolier demands judgment dismissing the Complaint, or in the
alternative, demands judgment over and against the co-defendants and third-party defendants now
and hereafter named on the basis of indemnification or contribution for all or part of any verdict
or judgment, together with its costs and disburseme
Preview
FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STEVEN LEROY HALL, Index No. 190012/2017 Plaintiff, against VERIFIED ANSWER TO PLAINTIFF’S SECOND A.O. SMITH WATER PRODUCTS, et al., AMENDED SUMMONS AND VERIFIED Defendants. COMPLAINT AND CROSS- CLAIMS OF DEFENDANT LIGHTOLIER, INC. Defendant Lightolier, Inc., (“Lightolier”), by its attorneys, Darger Errante Yavitz & Blau LLP, answers the Second Amended Verified Complaint (the “Complaint”) of Plaintiff Steven Leroy Hall (“Plaintiff”) as follows: THE PARTIES 1. Lightolier denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1 through 3 of the Complaint. 2. Paragraph 4 of the Complaint contains no allegations to which a response is required; to the extent a response is required, however, Lightolier denies the allegations contained in the aforesaid paragraph of the Complaint, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 3. Lightolier denies the allegations contained in paragraph 5 of the Complaint insofar as such allegations pertain to Lightolier, except admits that Lightolier does business in this State, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 4. Lightolier denies knowledge or information sufficient to form a belief as to the truth 1 1 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 of the allegations contained in paragraphs 6 through 10 of the Complaint. 5. Lightolier denies the allegations contained in paragraph 11 of the Complaint, except admits that Lightolier has done business in the State of New York. 6. Lightolier denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 12 through 15 of the Complaint. ANSWER TO THE ALLEGATIONS OF PLAINTIFF’S INITIAL COMPLAINT THE PARTIES 7. Lightolier denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1 through 3 of the Initial Complaint. 8. Paragraph 4 of the Initial Complaint contains no allegations to which a response is required; to the extent a response is required, however, Lightolier denies the allegations contained in the aforesaid paragraph of the Initial Complaint, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 9. Lightolier denies the allegations contained in paragraph 5 of the Initial Complaint insofar as such allegations pertain to Lightolier, except admits that Lightolier does business in this State, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 10. Lightolier denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6 through 97 of the Initial Complaint. 11. Lightolier denies the allegations contained in paragraph 98 of the Initial Complaint insofar as such allegations pertain to Lightolier, except admits that Lightolier does business in this State, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 2 2 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 12. Lightolier denies the allegations contained in paragraphs 99 through 105 of the Initial Complaint insofar as such allegations pertain to Lightolier, and denies knowledge or information sufficient to form a belief as to the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE FIRST CAUSE OF ACTION SOUNDING IN NEGLICENCE 13. In response to paragraph 106 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 105 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 14. Lightolier denies the allegations contained in paragraphs 107 through 114 of the Initial Complaint, including all sub-parts therein, insofar as such allegations pertain to Lightolier, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY 15. In response to paragraph 115 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 114 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 16. Lightolier denies the allegations contained in paragraphs 116 through 119 of the Initial Complaint insofar as such allegations pertain to Lightolier, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 17. In response to paragraph 120 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 119 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 3 3 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 18. Lightolier denies the allegations contained in paragraphs 121 through 129 of the Initial Complaint insofar as such allegations pertain to Lightolier, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS 19. In response to paragraph 130 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 129 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 20. Lightolier denies the allegations contained in paragraphs 131 through 148 of the Initial Complaint, including all sub-parts therein, insofar as such allegations pertain to Lightolier, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court. AS TO THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY 21. In response to paragraph 149 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 148 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 22. Lightolier denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 150 through 156 of the Initial Complaint. AS TO THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY / CONCERT OF ACTION 23. In response to paragraph 157 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 156 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 4 4 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 24. Lightolier denies the allegations contained in paragraphs 158 through 172 of the Initial Complaint, including all sub-parts therein, insofar as such allegations pertain to Lightolier, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS 25. In response to paragraph 173 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 172 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 26. Paragraph 174 of the Initial Complaint contains no allegations to which a response is required; to the extent a response is required, however, Lightolier denies the allegations contained in the aforesaid paragraph of the Initial Complaint, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 27. Lightolier denies the allegations contained in paragraphs 175 through 186 of the Initial Complaint insofar as such allegations pertain to Lightolier, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court. AS TO THE EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS 28. In response to paragraph 187 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 186 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 29. Lightolier denies the allegations contained in paragraphs 188 through 202 of the Complaint insofar as such allegations pertain to Lightolier, denies knowledge or information 5 5 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court. AS TO THE NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY 30. In response to paragraph 203 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 202 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 31. Lightolier denies the allegations contained in paragraphs 204 through 215 of the Initial Complaint insofar as such allegations pertain to Lightolier, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court. AS TO THE TENTH CAUSE OF ACTION PUNITIVE DAMAGES 32. In response to paragraph 216 of the Initial Complaint, Lightolier repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 215 of the Initial Complaint with the same force and effect as if set forth at length hereinafter. 33. Lightolier denies the allegations contained in paragraph 217 of the Initial Complaint insofar as such allegations pertain to Lightolier, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to parties other than Lightolier. FOR A FIRST AFFIRMATIVE DEFENSE The Complaint fails to state cognizable claims as against Lightolier. FOR A SECOND AFFIRMATIVE DEFENSE While denying Plaintiff’s allegations with respect to liability, to the extent that negligence or culpable conduct may be proven, the acts of Lightolier are not a proximate cause of any injuries to Plaintiff. 6 6 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 FOR A THIRD AFFIRMATIVE DEFENSE The Complaint fails to comply with the most minimal pleading requirements. FOR A FOURTH AFFIRMATIVE DEFENSE To the extent that the Complaint and the claims made by Plaintiff were not commenced within the time limited by law, the Complaint is barred by the applicable statute of limitations and/or laches. FOR A FIFTH AFFIRMATIVE DEFENSE In the event that Plaintiff used any asbestos-containing product(s), said product(s) was misused, or improperly used, which misuse or improper use proximately caused and contributed, in whole or in part, to the claims alleged by Plaintiff in the Complaint. FOR A SIXTH AFFIRMATIVE DEFENSE To the extent that Plaintiff failed and neglected to maintain this action in a swift, diligent, and timely fashion, the Complaint is barred by waiver and laches. FOR A SEVENTH AFFIRMATIVE DEFENSE The injuries and/or illnesses to Plaintiff, if any, are unrelated to any act or omission of Lightolier or any individual acting under its direction or control. FOR AN EIGHTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the Complaint. FOR A NINTH AFFIRMATIVE DEFENSE If Plaintiff sustained the injuries and damages as alleged, the same were caused, in whole or in part, by the conduct of one or more persons or entities over whom Lightolier exercised no control and with whom Lightolier had no legal relationship. 7 7 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 FOR A TENTH AFFIRMATIVE DEFENSE To the extent that Lightolier conformed to the scientific knowledge and research data available to industry and the scientific community, Lightolier have fulfilled its obligations, if any, herein, and the Complaint is barred, in whole or in part. FOR AN ELEVENTH AFFIRMATIVE DEFENSE To the extent that Plaintiff alleges rights assertedly derived from oral warranties, statements, or undertakings on the part of Lightolier, the Complaint is barred by the applicable statute of frauds. FOR A TWELFTH AFFIRMATIVE DEFENSE To the extent that the claims pleaded by Plaintiff fail to accord with the Uniform Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint is barred. FOR A THIRTEENTH AFFIRMATIVE DEFENSE To the extent that any of the products for which liability is charged to Lightolier, which is denied, were modified, altered, qualified, assembled, or in any other way materially varied, which same may be causally related to the claims of Plaintiff, the Complaint is barred. FOR A FOURTEENTH AFFIRMATIVE DEFENSE The cause(s) of action pleaded in the Complaint insofar as they assert an alleged cause of action for express and/or implied warranties and the alleged breaches thereof, as against Lightolier, is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between Plaintiff and Lightolier. FOR A FIFTEENTH AFFIRMATIVE DEFENSE Upon information and belief, insofar as Plaintiff relies upon allegations of negligence, breaches of warranties, fraudulent representations and violations of obligations of strict products liability as against Lightolier, said causes of action fail to state facts sufficient to constitute causes 8 8 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 of action as against Lightolier by reason of the failure to allege the freedom of Plaintiff from contributory negligence or fault, and if Plaintiff sustained the injuries, losses and other damages complained of in the Complaint, such injuries, losses, and damages were caused and brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or the culpable conduct of Plaintiff. FOR A SIXTEENTH AFFIRMATIVE DEFENSE The injuries and/or illnesses to Plaintiff, if any, arose, in whole or in part out of the risks, hazards and dangers incident to the occupation of Plaintiff, all of which, whether related to asbestos or not, were open, obvious and well known to Plaintiff, and the Complaint is barred by virtue of Plaintiff’s assumption of the risks thereof. FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Upon information and belief, Lightolier complied with all safety rules and regulations in effect at the relevant times and acted reasonably in all of its activities. FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE To the extent that the use, application, employment, surrounding conditions, safety precautions, and other circumstances attendant upon the material allegedly used by Plaintiff were determined, controlled, selected, or limited by him and/or by others for whose acts, omissions, or breach Lightolier is not liable, the Complaint is barred, in whole or in part. FOR A NINETEENTH AFFIRMATIVE DEFENSE The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workmen’s Compensation statutes and shall have constituted an industrial disability and the exclusive remedy, if any, shall lie within the terms and ambit of said statutes. 9 9 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 FOR A TWENTIETH AFFIRMATIVE DEFENSE Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages complained of in the Complaint, such injuries, losses, and damages were caused or brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable conduct of parties or third parties to this action, other than Lightolier, and over whom Lightolier had neither control nor right of control. FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages complained of in the Complaint, such injuries, losses, and damages were caused or brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable conduct of Plaintiff. FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE Upon information and belief, any recovery in this action by Plaintiff, if any, must be diminished and reduced in the proportion which said culpable conduct of Plaintiff bears to the alleged culpable conduct of Lightolier, if any, which allegedly caused said injuries, losses, and damages. FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE At all times during the conduct of its corporate operations, Lightolier and the agents, servants, and/or employees of Lightolier complied with all applicable law, regulations, standards, and the available knowledge, and technology of the medical, scientific, and industrial communities. FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE At all times material hereto, the state of the medical, industrial and scientific arts, knowledge, and technology was that there was no generally accepted or recognized nature of 10 10 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 asbestos-containing products when used in the manner and for the purposes intended, so that there was no duty by Lightolier to know of such character or nature or to warn Plaintiff, or others similarly situated, and to the extent such duty arose, adequate warnings either were given or were not necessary under all circumstances. FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE The parties, other than Lightolier, who were responsible for the conditions of Plaintiff’s work environment were sophisticated purchasers upon whom devolved all responsibility for the use of the products referred to in the Complaint. FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE In the event itshould be proven at the time of trial that all the defendants are subject to liability, then, Lightolier’s share of such liability would be of such a de minimus amount as to make itscontribution for damages negligible, and Lightolier would be entitled to contribution, either in whole or in part, from the co-defendants not represented by this Verified Answer and Cross-Claims. FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE The action cannot proceed in the absence of all parties who should be named in accordance with Rule 19 of the Federal Rules of Civil Procedure and/or CPLR 1001. FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE Proceeding in this action without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight Insulation, Owens-Corning and/or Standard Insulations, W.R. Grace, and all other entities in Bankruptcy relating thereto, would be in violation of Lightolier’s constitutional rights. 11 11 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE To the extent that Plaintiff relies on the New York Law, L. 1986. c. 682, Section 4 as grounds for reviving or maintaining the action, said statute(s) is unconstitutional and deprives Lightolier of its constitutional rights and is wholly void and unenforceable. FOR A THIRTIETH AFFIRMATIVE DEFENSE To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and prompt notice of any such breach of warranty to Lightolier. FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE Any recovery by Plaintiff in this action must be reduced by collateral source payments pursuant to CPLR Section 4545. FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE To the extent that Plaintiff contributed to his injuries by the use or misuse, either in whole or in part, of other substances, products, medications, and drugs, including, but not limited to any tobacco products, any liability should be reduced by the extent of any use and/or injuries related thereto or caused thereby pursuant to the Restatement of Torts (Second) §433A. FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE If Plaintiff was caused to sustain personal injuries at the time and place set forth in the Complaint and in the manner alleged therein through any carelessness, recklessness, acts, omissions, negligence, and/or breaches of duty and/or warranty and/or contract, other than that of Plaintiff, then the said damages arose out of the carelessness, recklessness, acts, omissions, negligence, and breaches of duty and/or warranty and/or contract in fact or implied-in-law, upon the part of the co-defendants and third-party defendants now or hereafter named, with indemnification and/or contribution due to Lightolier as implied-in-fact or implied-in-law, and if Lightolier is found liable as to Plaintiff and/or any third-party Plaintiffs for the injuries and 12 12 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 damages set forth in the Complaint and/or the third-party complaints, then the said co-defendants and third-party defendants now or hereafter named will be liable jointly and severally to Lightolier and will be bound to fully indemnify and hold Lightolier harmless for the full amount of any verdict or judgment, and/or Lightolier is entitled to contribution, in whole or in part, from each of the co-defendants and third-party defendants now or hereafter named, together with the costs and disbursements incurred in the defense of this action. FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE To the extent that Plaintiff was exposed to toxic substances, any liability should be reduced to the extent any injuries are related to thereto or caused thereby. FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiff seeks punitive damages against Lightolier and relies on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving or maintaining the action, such damages are improper and are not authorized by law since this statute does not revive any claims for punitive damages, leaving each of such claims time barred in its entirety. FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE To the extent that Plaintiff seeks punitive damages against Lightolier, these damages are improper and unwarranted, not authorized by law, and are unconstitutional. Subjecting Lightolier to multiple trials and the multiple impositions of punitive damages for a single course of conduct is a violation of both substantive and procedural due process under the Fourteenth Amendment to the United States Constitution and the Constitution of the State of New York. Furthermore, the standard governing the award of punitive damages is constitutionally void for vagueness. FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE The injuries and/or illnesses, if any, sustained by Plaintiff, were caused or contributed to by the fault, neglect, and want of care on the part of Plaintiff, or on the part of others for whose 13 13 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 acts or omissions or breach of legal duty, and Lightolier is not liable. FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiff’s claims for punitive damages cannot be sustained because an award of punitive damages under New York state law by a jury would violate Lightolier’s privileges and immunities, due process and equal protection rights guaranteed under the Fourteenth Amendment to the United States Constitution, and the Commerce Clause under Article I to the United States Constitution, as well as the New York Constitution, and would be improper under the common law and public policies of New York. FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE Lightolier pleads comment k to the Restatement (Second) of Torts, Section 402A. FOR A FORTIETH AFFIRMATIVE DEFENSE Each of Plaintiff’s claims is barred by prior accord and satisfaction. FOR A FORTY-FIRST AFFIRMATIVE DEFENSE To the extent that the physically injured Plaintiff alleged asbestos exposure occurred prior to the date of his/her marriage, no loss of consortium claim may be asserted. FOR A FORTY-SECOND AFFIRMATIVE DEFENSE Plaintiff’s claims for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. FOR A FORTY-THIRD AFFIRMATIVE DEFENSE Article 16 of the Civil Practice Law and Rules applies to this action and pursuant to the law of New York, the liability, if any, of Lightolier for non-economic loss is not joint and several but shall be limited to the proportionate share, if any, attributed to Lightolier. FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE Lightolier’s activities and undertakings were conducted in a reasonable fashion, without 14 14 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 recklessness, malice, or wantonness, and Plaintiff may not recover in this action any compensatory, exemplary, or punitive damages against Lightolier. FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE Lightolier asserts that this Court lacks personal jurisdiction over this action. FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE Lightolier asserts that this Court lacks subject matter jurisdiction over this action. FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE Lightolier gave, made or otherwise extended no warranties, whether express or implied, upon which Plaintiff has a right to rely. FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE Lightolier denies specifically that, during the periods of exposure alleged in the Complaint, it processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos-containing products to which the physically injured Plaintiff was caused to come into contact and which Plaintiff was caused to breathe, inhale, and/or digest which thereby caused Plaintiff alleged injuries and resulting damages alleged in the Complaint. FOR A FORTY-NINTH AFFIRMATIVE DEFENSE Plaintiff’s claims should be dismissed on the grounds of improper venue and/or forum non conveniens. FOR A FIFTIETH AFFIRMATIVE DEFENSE If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are the result of an idiosyncratic reaction, rather than the result of any negligence or breach of duty attributable in any manner to Lightolier. FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE The physically injured Plaintiff may have significant pre-existing medical histories that 15 15 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 were the causative factor of the alleged injuries. FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE Lightolier asserts that, in all respects, it conducted its operations in a reasonable manner. FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are the result of an operation of nature, rather than the result of want of care or breach of duty by Lightolier. FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE Any verdict or judgment against any defendant, including Lightolier, is entitled to reduction pursuant to General Obligations Law § 15-108, on the basis of prior settlements and/or compromises. FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE All defenses that have been or will be asserted by other defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to the Complaint. FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE Lightolier reserves the right to amend this Verified Answer and Cross-Claims to assert additional defenses upon discovery of the specific facts upon which Plaintiff bases its claims for relief, and upon completion of further discovery. ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS Lightolier denies any and all cross-claims for contribution and/or indemnification that have been asserted or may be asserted at any time by co-defendants in this action. CROSS-CLAIMS AGAINST CO-DEFENDANTS AND THIRD-PARTY DEFENDANTS If Plaintiff was caused to sustain personal injuries at the time and place set forth in the Complaint and alleged therein through any carelessness, recklessness, acts, omissions, negligence, and/or breaches of duty and/or warranty and/or contract, other than that of Plaintiff, then the such 16 16 of 18 FILED: NEW YORK COUNTY CLERK 02/21/2017 04:35 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 02/21/2017 injuries arose out of the carelessness, recklessness, acts, omissions, negligence, and breaches of duty and/or warranty and/or contract in-fact or implied-in-law, upon the part of the co-defendants and third-party defendants now or hereafter named herein with indemnification and/or contribution to Lightolier as implied-in-fact or implied-in-law, and if Lightolier is found liable as to Plaintiff and/or third-party Plaintiff(s) for the injuries and damages set forth in the Complaint and/or in any third-party complaint(s), then the said co-defendants and third-party defendants will be liable jointly and severally to Lightolier and should indemnify and hold Lightolier harmless for the full amount of any verdict or judgment, or in the alternative, Lightolier is entitled to contribution, in whole or in part, from each of the co-defendants and third-party defendants now or hereafter named herein, together with the costs and disbursements incurred in the defense of this action. WHEREFORE, Lightolier demands judgment dismissing the Complaint, or in the alternative, demands judgment over and against the co-defendants and third-party defendants now and hereafter named on the basis of indemnification or contribution for all or part of any verdict or judgment, together with its costs and disburseme