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.
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FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x STEVEN LEROY HALL, Index No.: 190012/2017 Plaintiffs, -against- RESEARCH-COTTRELL, INC.’S ANSWER TO PLAINTIFFS' A. O. SMITH WATER PRODUCTS and THIRD AMENDED VERIFIED RESEARCH-COTTRELL, INC., et al. COMPLAINT, AFFIRMATIVE DEFENSES, CROSS-CLAIMS, Defendants. AND ANSWER TO CROSS- CLAIMS ----------------------------------------------------------------------x COUNSELORS: PLEASE TAKE NOTICE that defendant RESEARCH-COTTRELL, INC. n/k/a AWT AIR COMPANY, INC. (hereinafter “RC”), by its attorneys, Tanenbaum Keale LLP, hereby answers plaintiffs' Verified Complaint and Third Amended Verified Complaint as follows: 1. RC denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1 through 3 of plaintiffs' Verified Complaint and leaves the plaintiff to his proofs. 2. The statements contained in paragraph 4 of plaintiffs’ Verified Complaint do not require any admissions or denials as said statements merely define "Defendants" as used within the context of plaintiffs’ Verified Complaint. 3. In response to paragraphs 5, 74 and 98 of plaintiffs’ Verified Complaint, RC admits that it is a foreign business corporation that has, from time to time, conducted, done or transacted business in the State of New York, with its principal place of business outside of the State of New York. RC denies the remaining allegations contained in paragraphs 5, 74 and 98 of plaintiffs’ Verified Complaint, and refers all conclusions of law contained in paragraphs 5, 74 and 98 to the Court. 1 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 4. RC denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6 through 7, 75 through 97, 99 and 100 of plaintiffs’ Verified Complaint as those allegations relate solely to other defendants in this action. 5. RC denies each and every allegation contained in paragraphs 101 through 105 of plaintiffs’ Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 101 through 105 of plaintiffs’ Verified Complaint as they relate to any other defendant or third party in this action. RC also refers all conclusions of law contained in paragraphs 101 through 105 to the Court. AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE, RC ANSWERS AS FOLLOWS: 6. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 105 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 106 of plaintiffs’ Verified Complaint. 7. RC denies the allegations contained in paragraphs 107 through 114 of plaintiffs’ Verified Complaint, including their subparts, to the extent they pertain to RC and denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to any other defendant in this action. RC also refers all conclusions of law contained in paragraphs 107 through 114 to the Court. AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY, RC ANSWERS AS FOLLOWS: 8. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 114 of plaintiffs’ Verified Complaint with the same force and -2- 2 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 effect as if fully set forth at length herein in answer to paragraph 115 of plaintiffs’ Verified Complaint. 9. RC denies the allegations contained in paragraphs 116 through 119 of plaintiffs’ Verified Complaint to the extent they pertain to RC and denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to any other defendant in this action. RC also refers all conclusions of law contained in paragraphs 116 through 119 to the Court. AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY, RC ANSWERS AS FOLLOWS: 10. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 119 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 120 of plaintiffs’ Verified Complaint. 11. RC denies the allegations contained in paragraphs 121 through 129 of plaintiffs’ Verified Complaint to the extent they pertain to RC and denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to any other defendant in this action. RC also refers all conclusions of law contained in paragraphs 121 through 129 to the Court. AS AND FOR A FOURTH CAUSE OF ACTION SOUNDING IN LABOR LAW VIOLATIONS, RC ANSWERS AS FOLLOWS: 12. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 129 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 130 of plaintiffs’ Verified Complaint. -3- 3 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 13. RC denies each and every allegation contained in paragraphs 131 through 149 of plaintiffs’ Verified Complaint, including their subparts, to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 131 through 148 of plaintiffs’ Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 131 through 148 to the Court. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY, RC ANSWERS AS FOLLOWS: 14. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 148 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 149 of plaintiffs’ Verified Complaint. 15. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 150 through 156 of plaintiffs’ Verified Complaint as they relate solely to defendant Metropolitan Life Insurance Company and leaves the plaintiffs to their proofs. AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION, RC ANSWERS AS FOLLOWS: 16. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 156 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 157 of plaintiffs’ Verified Complaint. -4- 4 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 17. RC denies each and every allegation contained in paragraphs 158 through 172 of plaintiffs’ Verified Complaint, including their subparts, to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 158 through 172 of plaintiffs’ Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 158 through 172 to the Court. AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS, RC ANSWERS AS FOLLOWS: 18. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 172 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 173 of plaintiffs’ Verified Complaint. 19. The statements contained in paragraph 174 of plaintiffs’ Verified Complaint do not require any admissions or denials as said statements merely define "contractor(s)" as used within the context of plaintiffs’ Verified Complaint. 20. RC denies each and every allegation contained in paragraphs 175 through 186 of plaintiffs’ Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 175 through 186 of plaintiffs’ Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 175 through 186 to the Court. -5- 5 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 AS AND FOR AN EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS, RC ANSWERS AS FOLLOWS: 21. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 186 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 187 of plaintiffs’ Verified Complaint. 22. RC denies each and every allegation contained in paragraphs 188 through 201 of plaintiffs’ Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 188 through 201 of plaintiffs’ Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 188 through 201 to the Court. 23. In response to paragraph 202 of plaintiffs’ Verified Complaint, RC agrees that the Substantive Law of Admiralty governs some or all of the allegations contained in plaintiffs’ causes of action, but denies that the applicability of the Substantive Law of Admiralty precludes removal of some or all of those allegations. AS AND FOR A NINTH CAUSE OF ACTION FOR JOINT AND SEVERAL LIABILITY, RC ANSWERS AS FOLLOWS: 24. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 202 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 203 of plaintiffs’ Verified Complaint. -6- 6 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 25. RC denies each and every allegation contained in paragraphs 204 through 215 of plaintiffs’ Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 204 through 215 of plaintiffs’ Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 204 through 215 to the Court. AS AND FOR A TENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES, RC ANSWERS AS FOLLOWS: 26. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 215 of plaintiffs’ Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 216 of plaintiffs’ Verified Complaint. 27. RC denies each and every allegation contained in paragraph 217 of plaintiffs’ Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 217 of plaintiffs’ Verified Complaint as they relate to any other defendant. RC also refers all conclusions of law contained in paragraph 217 to the Court. ANSWERING PLAINTIFF’S THIRD AMENDED VERIFIED COMPLAINT AS FOLLOWS: 28. RC denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1 through 3 of plaintiffs' Third Amended Verified Complaint and leaves the plaintiffs to their proofs. 29. The statements contained in paragraph 4 of plaintiffs’ Third Amended Verified Complaint do not require any admissions or denials as said statements merely define "Defendants" as used within the context of plaintiffs’ Third Amended Verified Complaint. -7- 7 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 30. In response to paragraph 5 of plaintiffs’ Third Amended Verified Complaint, RC admits that itis a foreign business corporation that has, from time to time, conducted, done or transacted business in the State of New York, with its principal place of business outside of the State of New York. RC denies the remaining allegations contained in paragraph 5 of plaintiffs’ Third Amended Verified Complaint, and refers all conclusions of law contained in paragraph 5 to the Court. 31. RC denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6 and 7 of plaintiffs’ Third Amended Verified Complaint as those allegations relate solely to other defendants in this action. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 32. Plaintiffs’ Verified Complaint and Third Amended Verified Complaint (hereinafter “Verified Complaint”) fail to contain any allegations whatsoever against RC, and fails to state a claim upon which relief can be granted against RC. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 33. That RC acted reasonably and with due care toward plaintiff. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 34. That RC owed no duty to plaintiff. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 35. That RC violated no duty owed to plaintiff. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 36. That at all times relevant hereto, RC complied with all applicable laws, -8- 8 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 regulations and standards. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 37. In the event that plaintiff relies on New York Law, L. 1986 C. 682 Sections 4 and 12 as grounds for maintaining this action, these sections are unconstitutional and this action is time barred. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 38. The claims are barred by the doctrines of res judicata and/or collateral estoppel. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 39. That RC was not served in accordance with the provisions of the New York Civil Practice Law and Rules and therefore plaintiffs’ Verified Complaint must be dismissed due to insufficient process and insufficient service of process. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 40. Plaintiffs’ Verified Complaint contains no information regarding dates of exposure, injury or diagnosis, or any other information necessary to determine whether plaintiffs’ claims were timely filed. RC asserts the claims may be barred under the terms of any relevant statutes of limitations or repose from the jurisdiction or jurisdictions whose limitations or repose provisions govern. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 41. Plaintiff has failed to plead any basis for claims of misrepresentation, deliberate concealment, or fraud against RC, much less state such claims with the specificity required by the New York Civil Practice Law and Rules and Federal Rules of Civil Procedure. -9- 9 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 42. That one or more of the causes of action have not been maintained in a timely fashion and plaintiff have neglected the same and should be barred by the doctrine of laches. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 43. That any injuries and/or damages sustained by the plaintiff, as alleged in plaintiffs’ Verified Complaint herein, were caused in whole or in part by the contributory negligence and/or culpable conduct of said plaintiff and not as a result of any contributory negligence and/or culpable conduct on the part of the answering defendant, which either bars or reduces plaintiffs’ claims herein an amount to be determined by the trier of fact. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 44. If plaintiff sustained any injury as alleged, which is denied, the same resulted, upon information and belief, from his own negligence in failing to care for his own health by using tobacco products over an extended period of time. The use of said tobacco products is the sole, direct and proximate cause, or a contributing cause, of the alleged injury or damage, if any, about which plaintiff complain. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 45. If plaintiff sustained any injuries or damages as alleged in plaintiffs’ Verified Complaint, all of which RC specifically denies, then such injuries and damages were caused or contributed to by reason of the negligence of said plaintiff, by reason of, but not limited to, said plaintiffs’ failure to wear a respirator, engage in safe work practices or to protect himself adequately from risk of harm. - 10 - 10 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 46. If plaintiff sustained any injury or damage, which is denied, then such injury or damage were proximately caused or contributed to by exposure to and inhalation of noxious and deleterious fumes and residues from industrial products and by-products prevalent on plaintiff's job sites and substances other than those manufactured or sold by RC, if any, and by cumulative exposure to all types of environmental and industrial pollutants of air and water. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 47. Insofar as plaintiffs’ Verified Complaint and each cause of action considered separately allege a cause of action accruing before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to plaintiff, including contributory negligence and assumption of the risk. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 48. This action may be barred by the applicable state and/or federal industrial insurance and/or worker's compensation laws which may provide an exclusive remedy for the damages which plaintiff allegedly sustained, if any. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 49. In the event that plaintiff was employed by this answering defendant, plaintiffs’ sole and exclusive remedy is under the Workers’ Compensation Law of the State of New York. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 50. That the accident and injuries complained of in the plaintiffs’ Verified Complaint were caused or brought about by the negligence of a third person or persons over whom this - 11 - 11 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 answering defendant had no control and for whose acts the answering defendant was in no way responsible. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 51. That by entering into the activity in which the plaintiff was engaged at the time of the occurrence set forth in plaintiffs’ Verified Complaint, said plaintiff knew the hazards thereof and the inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and damages were sustained by the plaintiff herein as alleged in plaintiffs’ Verified Complaint arose from and were caused by the reason of such risks voluntarily undertaken by the plaintiff in his activities and such risks were assumed and accepted by him in performing and engaging in said activities. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 52. There should be no recovery against RC because of any failure to warn or inadequacy of warning because, upon information and belief, at all times pertinent to plaintiffs’ claims, said plaintiff was possessed of or should have been possessed of good and adequate knowledge which negated any need for said warning and/or plaintiff was required to follow specific written safety procedures as established by his employers which negated the need or requirement for any such warning. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 53. Whatever damages plaintiff may have suffered, if any, were solely or proximately caused by the plaintiff when he assumed and voluntarily exposed himself to specific and appreciated risks pursuant to the doctrine of volenti non fitinjuria and assumption of risk, for - 12 - 12 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 which plaintiff is barred from receiving damages, or, in the alternative, for which recovery is reduced. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 54. That after the product(s) left the control of this answering defendant, they were subject to abuse, alteration, change, improper installation or operation by persons not in the employ or control of this defendant; which alteration, change, abuse, improper installation or operation proximately caused the injuries complained of by plaintiff in plaintiffs’ Verified Complaint. Such change in condition bars the action as against this defendant. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 55. The alleged injuries and damages of which the plaintiff complain were caused by unauthorized, unattended, or improper use of the products complained of, and as a result of failure to exercise reasonable and ordinary care, caution and vigilance for which RC is not liable or not responsible. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 56. That any oral warranties upon which plaintiff allegedly relied are inadmissible and unavailable because of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 57. That plaintiff, his coworkers or employers misused, abused, mistreated and misapplied the product(s) designated as asbestos material as alleged in plaintiffs’ Verified Complaint herein. - 13 - 13 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 58. Whatever damages plaintiff may have suffered, if any, were due solely or in part to the failure of plaintiff's employers to take adequate precautions and provide plaintiff with a safe place to work. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 59. While this answering defendant denies the allegations of plaintiff with respect to negligence, statutory liability, strict liability, injury and damages, to the extent that plaintiff may be able to prove the same, they were the result of intervening and/or interceding acts of superseding negligence on the part of third-parties over which this defendant had neither control nor right of control and are not recoverable as against this defendant. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 60. In accordance with CPLR 1601 et seq., the liability of this answering defendant, if any, to the plaintiff for non-economic loss is limited to this defendant’s equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability for non-economic loss, including named parties and others over whom plaintiff could have obtained personal jurisdiction with due diligence. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 61. In the event plaintiff recover a verdict or judgment against the defendant, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral source such as insurance, social - 14 - 14 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 security, workers compensation or employee benefit programs. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 62. If plaintiff have heretofore settled or should hereafter settle or have any judgment rendered in his favor for any of his alleged injuries and damages with any entity, then RC is entitled to a setoff in the amount of said settlement. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 63. Plaintiff contributed to his illness and/or injuries, in whole or in part, by the use of other substances, product, drugs or medications. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 64. The place of trial of this action is stated for an improper venue. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 65. In the event it should be proven at the time of trial that this answering defendant is subject to market share liability, then this defendant’s respective share of such liability would be of such a de minimus amount as to make its contribution for damages negligible and this defendant would be entitled to contribution, either in whole or in part, from the co-defendants not represented by this answer. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 66. At all times material to plaintiffs’ claims, the state of medical and scientific knowledge did not provide RC with knowledge, either actual or constructive, and by the application of reasonable developed human skill and foresight RC had no reason to know the propensities, if any, of “asbestos,” “asbestos dust,” “asbestos fibers” and/or “asbestos products” - 15 - 15 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 to cause or contribute to the creation of medical conditions or circumstances involving alleged injuries to the lungs, respiratory system, larynx, stomach or other bodily organs, bone and tissue, and also including asbestosis, respiratory disorders, risk of mesothelioma or any other illness of any type whatsoever at the times relevant to plaintiffs’ claims. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 67. This answering defendant did not give, make or otherwise extend warranties, whether express or implied, upon which plaintiff could rely. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 68. This answering defendant breached no warranties, whether express or implied. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 69. Any cause of action against RC based on a breach of warranties is barred because of failure to give RC timely notice required by the Uniform Commercial Code enacted in New York. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 70. The doctrine of strict liability in tort is inapplicable to this litigation. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 71. To the extent plaintiffs’ Verified Complaint and the causes of action pled therein fail to identify RC as the manufacturer in fact of any injury-causing products, or fail to identify any product manufactured by RC as the cause in fact of any injuries to plaintiff, plaintiffs’ Verified Complaint fails to state a claim upon which relief can be granted, inasmuch as such claims, if granted, would contravene RC's constitutional rights to substantive and procedural due - 16 - 16 of 26 FILED: NEW YORK COUNTY CLERK 07/14/2017 08:16 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 07/14/2017 process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of New York or any other applicable jurisdiction. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE, DEFENDANT RC STATES: 72. Plaintiffs’ claim for relief, if granted, would constitute a taking of private property for public use without just compensation, and would contravene RC's rights as preserve