Preview
FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM INDEX NO. E2023002784
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3411692
Book Page CIVIL
Return To: No. Pages: 18
ARTESIA DENNING TSO
Darger Errante Yavitz & Blau LLP Instrument: MISCELLANEOUS DOCUMENT
116 East 27th Street Park Avenue
New York, NY 10016 Control #: 202304261278
Index #: E2023002784
Date: 04/26/2023
SHAW, ROBERT E Time: 3:02:23 PM
SHAW, JANET A
ABB, INC.
AIR & LIQUID SYSTEMS CORPORATION
ALRAY CONSTRUCTION CORP.
ARMSTRONG INTERNATIONAL, INC.
ARMSTRONG PUMPS INC.
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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Supreme Court of the State of New York
County of Monroe
In Re: Seventh Judicial District Asbestos Litigation
Index No. E2023002784
ROBERT E. SHAW and
JANET A. SHAW, his spouse,
Verified Answer,
Plaintiffs, Affirmative Defenses,
and Cross-Claims of
- against -
Defendant Gould
ABB, INC., individually and as successor in interest Electronics Inc.
to ITE IMPERIAL CO., f/k/a ITE CIRCUIT
BREAKER CO., et al.,
Defendants.
Defendant Gould Electronics Inc. (“GEI”), sued herein as “Gould Electronics,
Inc., individually and as successor in interest to ITE Electrical Products Co.” by its
attorneys, Darger Errante Yavitz & Blau LLP, answers the Verified Complaint of
Plaintiffs Robert E. Shaw and Janet A. Shaw, his spouse, as follows:
1. GEI denies knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 1 of the Complaint.
ARTICLE 16 ALLEGATIONS
2. GEI denies the allegations contained in paragraph 2 of the Complaint
insofar as they pertain to GEI and denies knowledge or information sufficient to
form a belief as to the truth of these allegations insofar as they pertain to other
parties.
DEFENDANT ALLEGATIONS
3. GEI denies knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraphs 3 through 17 of the Complaint.
4. GEI denies the allegations contained in paragraph 18 of the
Complaint, except that GEI admits that it is a foreign corporation.
5. GEI denies knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraphs 19 through 48 of the
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Complaint.
ALLEGATIONS OF FACT
6. GEI denies the allegations contained in paragraphs 49 through 56 of
the Complaint insofar as they pertain to GEI and denies knowledge or information
sufficient to form a belief as to the truth of these allegations insofar as they
pertain to other parties.
FIRST CAUSE OF ACTION
7. In response to paragraph 57 of the Complaint, GEI repeats and
reiterates each and every response to the allegations contained in paragraphs 1
through 56 of the Complaint with the same force and effect as if fully set forth
herein.
8. GEI denies the allegations contained in paragraphs 58 through 72 of
the Complaint insofar as they pertain to GEI and denies knowledge or information
sufficient to form a belief as to the truth of these allegations insofar as they
pertain to other parties.
SECOND CAUSE OF ACTION
9. In response to paragraph 73 of the Complaint, GEI repeats and
reiterates each and every response to the allegations contained in paragraphs 1
through 72 of the Complaint with the same force and effect as if fully set forth
herein.
10. GEI denies the allegations contained in paragraphs 74 through 78 of
the Complaint insofar as they pertain to GEI and denies knowledge or information
sufficient to form a belief as to the truth of these allegations insofar as they
pertain to other parties.
THIRD CAUSE OF ACTION
11. In response to paragraph 79 of the Complaint, GEI repeats and
reiterates each and every response to the allegations contained in paragraphs 1
through 78 of the Complaint with the same force and effect as if fully set forth
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herein.
12. GEI denies the allegations contained in paragraphs 80 through 96 of
the Complaint insofar as they pertain to GEI and denies knowledge or information
sufficient to form a belief as to the truth of these allegations insofar as they
pertain to other parties.
FOURTH CAUSE OF ACTION
13. In response to paragraph 97 of the Complaint, GEI repeats and
reiterates each and every response to the allegations contained in paragraphs 1
through 96 of the Complaint with the same force and effect as if fully set forth
herein.
14. GEI denies the allegations contained in paragraph 98 through 102 of
the Complaint insofar as they pertain to GEI and denies knowledge or information
sufficient to form a belief as to the truth of these allegations insofar as they
pertain to other parties.
FIFTH CAUSE OF ACTION
15. In response to paragraph 103 of the Complaint, GEI repeats and
reiterates each and every response to the allegations contained in paragraphs 1
through 102 of the Complaint with the same force and effect as if fully set forth
herein.
16. GEI denies knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 104 of the Complaint.
17. GEI denies the allegations contained in paragraph 105 of the
Complaint insofar as they pertain to GEI and denies knowledge or information
sufficient to form a belief as to the truth of these allegations insofar as they
pertain to other parties.
FOR A FIRST AFFIRMATIVE DEFENSE
18. The Complaint, in its entirety and each and every cause of action and
allegation considered separately, fails to state a cause of action against GEI.
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FOR A SECOND AFFIRMATIVE DEFENSE
19. This Court lacks subject matter jurisdiction over this action.
FOR A THIRD AFFIRMATIVE DEFENSE
20. This Court lacks personal jurisdiction over GEI.
FOR A FOURTH AFFIRMATIVE DEFENSE
21. Plaintiff1 failed to properly effect service against GEI.
FOR A FIFTH AFFIRMATIVE DEFENSE
22. Plaintiff’s claims should be dismissed on the ground of forum non
conveniens.
FOR A SIXTH AFFIRMATIVE DEFENSE
23. Plaintiff’s claims should be dismissed on the ground of improper
venue.
FOR A SEVENTH AFFIRMATIVE DEFENSE
24. Plaintiff’s claims against GEI were not commenced within the time
limited by law, and therefore Plaintiff’s claims against GEI are barred by the
applicable Statute of Limitations.
FOR AN EIGHTH AFFIRMATIVE DEFENSE
25. Plaintiff failed and neglected to maintain this action in a diligent and
timely fashion, and therefore Plaintiff’s claims against GEI are barred by the
doctrine of laches.
FOR A NINTH AFFIRMATIVE DEFENSE
26. All claims are barred by the applicable statute of repose.
FOR A TENTH AFFIRMATIVE DEFENSE
27. The Complaint, and each and every claim therein considered
separately, is vague and uncertain.
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The term “Plaintiff,” as used herein, refers to Plaintiffs Robert E. Shaw and Janet A. Shaw,
his spouse, individually or collectively, as appropriate.
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FOR AN ELEVENTH AFFIRMATIVE DEFENSE
28. Plaintiff’s claims against GEI should be dismissed based upon waiver.
FOR A TWELFTH AFFIRMATIVE DEFENSE
29. Plaintiff’s claims against GEI should be dismissed based upon
collateral estoppel or res judicata.
FOR A THIRTEENTH AFFIRMATIVE DEFENSE
30. Plaintiff lacks the legal capacity, standing, or authority to bring this
action.
FOR A FOURTEENTH AFFIRMATIVE DEFENSE
31. Plaintiff’s claims against GEI should be dismissed based upon
documentary evidence.
FOR A FIFTEENTH AFFIRMATIVE DEFENSE
32. Plaintiff’s claims against GEI should be dismissed based upon
payment or release.
FOR A SIXTEENTH AFFIRMATIVE DEFENSE
33. Plaintiff’s claims against GEI are barred by prior accord and
satisfaction.
FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
34. At all relevant times, GEI and the agents, servants, and employees of
GEI complied with all applicable safety rules, laws, regulations, and standards in
effect, conformed to the available knowledge, research data, and technology of the
medical, scientific, and industrial communities, acted reasonably in all of its
activities, and conducted its operations in a reasonable manner.
FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
35. At all relevant times, the products and equipment of GEI were in
compliance with all applicable agency standards, including the National Institute
for Occupational Safety and Health (NIOSH), Occupational Safety and Health
Administration (OSHA), and the Bureau of Mines.
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FOR A NINETEENTH AFFIRMATIVE DEFENSE
36. Plaintiff fails to identify any defect in GEI’s products and equipment
that caused Plaintiff to be injured.
FOR A TWENTIETH AFFIRMATIVE DEFENSE
37. Plaintiff fails to raise an inference that there was a defect in GEI’s
products and equipment of which Plaintiff should have been warned.
FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
38. Plaintiff’s claims against GEI are barred because GEI’s products and
equipment were designed, manufactured, and marketed in accordance with the
state of the art, and when such products and equipment left GEI’s control, no
practical and technically feasible alternative formulation was available that would
have prevented the harm for which Plaintiff seeks to recover without substantially
impairing the safety, efficacy, or usefulness of the products and equipment for
their intended use.
FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
39. To the extent that Plaintiff’s claims against GEI fail to accord with
the Uniform Commercial Code, including but not limited to Section 2-725 thereof,
Plaintiff’s claims against GEI are barred.
FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
40. GEI gave, made, or otherwise extended no warranties, whether
express or implied, upon which Plaintiff has a right to rely.
FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
41. Plaintiff did not directly or indirectly purchase any products or
equipment from GEI, and Plaintiff neither received nor relied upon any warranty or
representation that may be alleged to have been made by GEI.
FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
42. 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 GEI.
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FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
43. Insofar as Plaintiff asserts any breach of express or implied
warranty, Plaintiff’s claims against GEI are legally insufficient by reason of the
failure to allege privity of contract or privity of warranty between Plaintiff and
GEI.
FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
44. To the extent that Plaintiff alleges rights assertedly derived from oral
warranties, statements, or undertakings on the part of GEI, Plaintiff’s claims
against GEI are barred by the applicable statute of frauds.
FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
45. Plaintiff’s claims against GEI are barred by the doctrines contained in
§ 402A of the Restatement (Second) of Torts, comment k to § 402A of the
Restatement (Second) of Torts, and the Restatement (Third) of Torts: Products
Liability.
FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
46. GEI is not and was not a manufacturer, seller, or supplier within the
meaning of the doctrine of strict liability in tort or contract.
FOR A THIRTIETH AFFIRMATIVE DEFENSE
47. At all times relevant, any product or equipment of GEI which Plaintiff
allegedly used was fit and proper for its intended purpose, and the warnings and
instructions given outweighed any possible risk inherent in the use of the product
or equipment.
FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
48. Plaintiff’s alleged injuries and damages arose, in whole or in part,
out of the risks, hazards, and dangers incident to the occupation of Plaintiff; these
risks, hazards, and dangers, whether related to silica or not, were open, obvious,
and well-known to Plaintiff; and Plaintiff’s claims against GEI are barred by virtue
of Plaintiff’s assumption of these risks, hazards, and dangers.
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FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
49. GEI’s products were not defective or dangerous when they left the
possession of GEI or at any other relevant time.
FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
50. Plaintiff’s claims against GEI are barred, in whole or in part, because
Plaintiff’s injuries were actually or proximately caused, in whole or in part, by the
misuse, unintended use, abuse, mistreatment, unauthorized alteration or
modification, or misapplication of the product or equipment at issue, and any
recovery must be diminished by reason of the misuse, unintended use, abuse,
mistreatment, unauthorized alteration or modification, or misapplication of the
product or equipment.
FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
51. Plaintiff’s claims are preempted by federal or state law. Plaintiff’s
claims are also preempted or barred by the doctrine of primary jurisdiction to the
extent the activities or conditions alleged in the Complaint have been, or are being,
supervised by competent regulatory authorities, and Plaintiff’s claims would
interfere with and frustrate the purposes of the statutory scheme.
FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
52. 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 or Rule
1001 of the New York Civil Practice Law and Rules (“CPLR”).
FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
53. Proceeding in this action without all other entities in Bankruptcy
relating thereto, including Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight
Insulation, Owens-Corning or Standard Insulations, or W.R. Grace, would be in
violation of GEI’s constitutional rights.
FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
54. To the extent Plaintiff’s alleged injuries and damages are governed by
the applicable Workers’ Compensation statutes, Plaintiff’s sole and exclusive
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remedy, if any, lies within the terms and ambit of said statutes.
FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
55. The within action cannot be maintained as there is another, virtually
identical, action brought by Plaintiff currently pending.
FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
56. Plaintiff’s alleged injuries and damages were not proximately caused
by any act or omission by GEI or any individual acting under its direction or
control.
FOR A FORTIETH AFFIRMATIVE DEFENSE
57. Plaintiff’s claims against GEI are barred because the injury was
actually or proximately caused, in whole or in part, by the intervening,
superseding, or illegal conduct of Plaintiff, independent third parties, or events
that were extraordinary under the circumstances, not foreseeable in the normal
course of events, or independent of or far removed from GEI’s conduct or control.
FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
58. Plaintiff’s claims against GEI are barred, in whole or in part, because
Plaintiff’s injuries were caused, in whole or in part, by the negligence, fault,
wrongful conduct, omissions, or breaches of legal duty of one or more persons or
entities, other than GEI, over whom GEI exercised neither control nor right of
control, and with whom GEI had no legal relationship, and for whose conduct, acts,
omissions, or breaches of legal duty GEI is not liable. Any recovery is subject to
reduction or offset under the doctrines of comparative fault, contributory
negligence, or assumption of risk.
FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
59. Plaintiff’s claims against GEI are barred, in whole or in part, by the
“learned intermediary,” “informed intermediary,” or “sophisticated user”
doctrines.
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FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
60. The risk of injury or damage from the use of or exposure to any
product of GEI to which Plaintiff was allegedly exposed is extremely remote and
thus, GEI had no duty to warn of such remote risks.
FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
61. Plaintiff failed to mitigate or otherwise act to lessen or reduce the
alleged injuries and damages.
FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
62. Plaintiff’s alleged injuries and damages were caused directly, solely,
and proximately by sensitivities, idiosyncrasies, or other reactions peculiar to
Plaintiff alone and not found in the general public.
FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
63. Plaintiff’s preexisting medical or genetic conditions, diseases,
illnesses, or injuries caused the alleged injuries and damages.
FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
64. To the extent that Plaintiff contributed to the alleged injuries and
damages 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 or injuries and
damages related thereto or caused thereby pursuant to the Restatement of Torts
(Second) § 433A.
FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
65. To the extent that Plaintiff was exposed to any toxic substance not
the subject of this action, any liability should be reduced to the extent any alleged
injuries or damages are related thereto or caused thereby.
FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
66. Plaintiff’s alleged injuries and damages resulted from operation of
nature, and not from want of care or breach of duty by GEI.
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FOR A FIFTIETH AFFIRMATIVE DEFENSE
67. GEI owed no legal duty of care to Plaintiff.
FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
68. 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 danger from the products or equipment at issue when used
in the manner and for the purposes intended, so that there was no duty by GEI 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 FIFTY-SECOND AFFIRMATIVE DEFENSE
69. GEI had no knowledge or reason to know of any alleged risks
associated with silica at any time during the periods complained of by Plaintiff, and
none of the alleged injuries were foreseeable at the time of the alleged acts or
omissions.
FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
70. To the extent that the alleged exposure to GEI’s product or equipment
occurred prior to the date of Plaintiff’s marriage, any loss of consortium claim is
barred as a matter of law.
FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
71. The conditions precedent to the maintenance of a wrongful death
claim have not been met.
FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
72. GEI is immune from liability for any conduct performed in
conformity with the United States government specifications, requirements, or
contracts, or those of another federal or state entity, or those of Plaintiff’s
employer.
FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
73. Any recovery must be reduced by collateral source payments
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pursuant to CPLR 4545.
FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
74. Article 16 of the CPLR applies to this action and pursuant to the law
of New York, the liability, if any, of GEI for non-economic loss is not joint and
several but shall be limited to the proportionate share, if any, attributed to GEI.
FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
75. Any verdict or judgment against GEI is entitled to reduction pursuant
to General Obligations Law § 15-108, on the basis of prior settlements or
compromises.
FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
76. To the extent Plaintiff asserts “market share” liability or “enterprise”
liability, the Complaint, and each and every claim therein considered separately,
fails to state facts sufficient to constitute a cause of action against GEI.
FOR A SIXTIETH AFFIRMATIVE DEFENSE
77. To the extent that foreign law may apply to Plaintiff’s claims, GEI
reserves the right to request its application.
FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
78. 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 is
unconstitutional and deprives GEI of its constitutional rights and is wholly void
and unenforceable.
FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
79. To the extent that Plaintiff seeks punitive damages against GEI 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.
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FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
80. No act or omission of GEI was malicious, willful, or reckless, and to
the extent that Plaintiff seeks punitive damages against GEI, these damages are
improper, unwarranted, not authorized by law, and unrecoverable.
FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE
81. To the extent that Plaintiff seeks punitive damages against GEI, an
award of such damages would be unconstitutional in that, inter alia:
(a) subjecting GEI to multiple trials and the multiple impositions of
punitive damages for a single course of conduct would violate both
substantive and procedural due process;
(b) the standard governing the award of punitive damages is
constitutionally void for vagueness;
(c) it would be a violation of due process to award punitive damages
based upon vague and undefined standards of liability or upon any
standard of proof less than “clear and convincing” evidence;
(d) an award of punitive damages would violate GEI’s privileges and
immunities, due process, and equal protection rights; and
(e) the amount of punitive damages sought is unconstitutionally
excessive and disproportionate to GEI’s alleged conduct.
Accordingly, an award of punitive damages against GEI would violate the United
States Constitution, including the Due Process Clause of the Fourteenth
Amendment and the Commerce Clause under Article I, and under the Constitution
of the State of New York, including the Due Process Clause of Article 1, Section 6.
FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE
82. Claims other than personal injury and property damage are not
revived by New York’s Toxic Tort Revival Act codified at CPLR 214-c.
FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE
83. Plaintiff fails to plead fraud with CPLR 3016(b)’s required specificity.
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FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE
84. New York does not recognize civil conspiracy to commit a tort as an
independent cause of action. To the extent that Plaintiff fails to demonstrate the
underlying tort, Plaintiff fails to state a claim for civil conspiracy under New York
law.
FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE
85. 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.
FOR A SIXTY-NINTH AFFIRMATIVE DEFENSE
86. GEI will rely upon any and all further defenses that become available
or appear during the discovery and proceedings in this action and hereby
specifically reserves the right to amend this Answer, Affirmative Defenses, and
Cross-Claims for the purposes of asserting any such additional defenses.
ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS
87. GEI denies any and all cross-claims for contribution or
indemnification that have been asserted or may be asserted at any time by co-
defendants in this action.
88. GEI denies all material allegations contained in all co-defendants’
cross-claims, and GEI does not waive any defenses to any cross-claims.
89. GEI repeats and reasserts the affirmative defenses raised above and
incorporates each herein as affirmative defenses to any cross-claims asserted
against GEI.
CROSS-CLAIMS AGAINST CO-DEFENDANTS AND THIRD-PARTY DEFENDANTS
90. If Plaintiff sustained injuries at the time and place set forth in the
Complaint through any carelessness, recklessness, act, omission, negligence,
breach of duty, breach of warranty, or breach of express or implied contract, other
than that of Plaintiff, then such injuries and any resultant damages arose out of the
carelessness, recklessness, act, omission, negligence, breach of duty, breach of
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warranty, or breach of express or implied contract of co-defendants or third-party
defendants now or hereafter named, with indemnification or contribution to GEI as
implied-in-fact or implied-in-law.
91. If GEI is found liable as to Plaintiff or any third-party plaintiff for the
injuries and damages set forth in the Complaint or any third-party complaint, then
co-defendants or third-party defendants now or hereafter named will be liable
jointly and severally to GEI and will be bound to fully indemnify and hold GEI
harmless for the full amount of any verdict or judgment, or in the alternative, GEI
is entitled to contribution, in whole or in part, from each of the co-defendants or
third-party defendants now or hereafter named, together with the costs and
disbursements incurred in the defense of this action.
92. If Plaintiff should recover a judgment against GEI, by operation of
law or otherwise, GEI will be entitled to judgment, contribution, or indemnity over
and against the co-defendants, their agents, their servants, or their employees, by
reason of their carelessness, recklessness, act, omission, negligence, breach of
duty, breach of warranty, or breach of express or implied contract for the amount
of any such recovery, or a portion thereof, in accordance with principles of law
regarding apportionment of fault and damages, along with costs, disbursements,
and reasonable expenses of the investigation and defense of this action, including
reasonable attorneys’ fees.
93. All cross-claims that have been or will be asserted by other
defendants in this action are adopted and incorporated by reference as if fully set
forth herein. Additionally, GEI will rely upon any and all further cross-claims that
become available to appear during discovery proceedings in this action and hereby
specifically reserves the right to amend this answer for the purpose of asserting
any such additional cross-claims.
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WHEREFORE, GEI demands judgment dismissing the Complaint, with costs
and disbursements or, in the event of any judgment against GEI, demands
judgment, contribution, or indemnity over and against the co-defendants and third-
party defendants now or hereafter named for the amount of any such recovery or a
portion thereof, in accordance with the principles of law regarding apportionment
of fault and damages, along with costs and disbursements, and such other and
further relief as this Court deems appropriate.
Dated: April 26, 2023
New York, New York
By:
Artesia Tso, Esq.
Darger Errante Yavitz & Blau LLP
116 East 27th Street, 12th Floor
New York, New York 10016
212.452.5300
Counsel for Defendant Gould Electronics Inc.
To: John P. Comerford, Esq.
Lipsitz, Ponterio & Comerford, LLC
424 Main Street, Suite 1500
Buffalo, New York 14202
716.849.0701
Counsel for Plaintiffs Robert E. Shaw
and Janet A. Shaw, his spouse
16
17 of 18
202304261278 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023
VERIFICATION
State of New York )
) ss:
County of New York )
The undersigned attorney, admitted to practice in the Courts of New York
State, affirms under penalties of perjury that the following statements are true:
That the affirmant is as associate of the firm of Darger Errante Yavitz &
Blau LLP, counsel for defendant Gould Electronics Inc. in the within action; that the
affirmant has read the foregoing Answer to Complaint, Affirmative Defenses,
Answer to Cross-Claims, and Cross-Claims of Gould Electronics Inc., and knows the
contents thereof, and that the same is true to the affirmant’s own knowledge,
except as to those matters therein stated to be alleged on information and belief,
and as to those matters the affirmant believes them to be true; that the grounds of
the affirmant’s belief as to all matters not stated upon the affirmant’s knowledge
are as follows: records, reports, and correspondence in the affirmant’s file; and
that the reason that this verification is made by the affirmant and not by the
defendant is because the defendant is not in the county where the affirmant has
her office.
Dated: April 26, 2023
ARTESIA TSO
18 of 18
Preview
FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM INDEX NO. E2023002784 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3411692 Book Page CIVIL Return To: No. Pages: 18 ARTESIA DENNING TSO Darger Errante Yavitz & Blau LLP Instrument: MISCELLANEOUS DOCUMENT 116 East 27th Street Park Avenue New York, NY 10016 Control #: 202304261278 Index #: E2023002784 Date: 04/26/2023 SHAW, ROBERT E Time: 3:02:23 PM SHAW, JANET A ABB, INC. AIR & LIQUID SYSTEMS CORPORATION ALRAY CONSTRUCTION CORP. ARMSTRONG INTERNATIONAL, INC. ARMSTRONG PUMPS INC. Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 18 202304261278 Index # INDEX : E2023002784 NO. E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 Supreme Court of the State of New York County of Monroe In Re: Seventh Judicial District Asbestos Litigation Index No. E2023002784 ROBERT E. SHAW and JANET A. SHAW, his spouse, Verified Answer, Plaintiffs, Affirmative Defenses, and Cross-Claims of - against - Defendant Gould ABB, INC., individually and as successor in interest Electronics Inc. to ITE IMPERIAL CO., f/k/a ITE CIRCUIT BREAKER CO., et al., Defendants. Defendant Gould Electronics Inc. (“GEI”), sued herein as “Gould Electronics, Inc., individually and as successor in interest to ITE Electrical Products Co.” by its attorneys, Darger Errante Yavitz & Blau LLP, answers the Verified Complaint of Plaintiffs Robert E. Shaw and Janet A. Shaw, his spouse, as follows: 1. GEI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the Complaint. ARTICLE 16 ALLEGATIONS 2. GEI denies the allegations contained in paragraph 2 of the Complaint insofar as they pertain to GEI and denies knowledge or information sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties. DEFENDANT ALLEGATIONS 3. GEI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 3 through 17 of the Complaint. 4. GEI denies the allegations contained in paragraph 18 of the Complaint, except that GEI admits that it is a foreign corporation. 5. GEI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 19 through 48 of the 2 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 Complaint. ALLEGATIONS OF FACT 6. GEI denies the allegations contained in paragraphs 49 through 56 of the Complaint insofar as they pertain to GEI and denies knowledge or information sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties. FIRST CAUSE OF ACTION 7. In response to paragraph 57 of the Complaint, GEI repeats and reiterates each and every response to the allegations contained in paragraphs 1 through 56 of the Complaint with the same force and effect as if fully set forth herein. 8. GEI denies the allegations contained in paragraphs 58 through 72 of the Complaint insofar as they pertain to GEI and denies knowledge or information sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties. SECOND CAUSE OF ACTION 9. In response to paragraph 73 of the Complaint, GEI repeats and reiterates each and every response to the allegations contained in paragraphs 1 through 72 of the Complaint with the same force and effect as if fully set forth herein. 10. GEI denies the allegations contained in paragraphs 74 through 78 of the Complaint insofar as they pertain to GEI and denies knowledge or information sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties. THIRD CAUSE OF ACTION 11. In response to paragraph 79 of the Complaint, GEI repeats and reiterates each and every response to the allegations contained in paragraphs 1 through 78 of the Complaint with the same force and effect as if fully set forth 2 3 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 herein. 12. GEI denies the allegations contained in paragraphs 80 through 96 of the Complaint insofar as they pertain to GEI and denies knowledge or information sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties. FOURTH CAUSE OF ACTION 13. In response to paragraph 97 of the Complaint, GEI repeats and reiterates each and every response to the allegations contained in paragraphs 1 through 96 of the Complaint with the same force and effect as if fully set forth herein. 14. GEI denies the allegations contained in paragraph 98 through 102 of the Complaint insofar as they pertain to GEI and denies knowledge or information sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties. FIFTH CAUSE OF ACTION 15. In response to paragraph 103 of the Complaint, GEI repeats and reiterates each and every response to the allegations contained in paragraphs 1 through 102 of the Complaint with the same force and effect as if fully set forth herein. 16. GEI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 104 of the Complaint. 17. GEI denies the allegations contained in paragraph 105 of the Complaint insofar as they pertain to GEI and denies knowledge or information sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties. FOR A FIRST AFFIRMATIVE DEFENSE 18. The Complaint, in its entirety and each and every cause of action and allegation considered separately, fails to state a cause of action against GEI. 3 4 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR A SECOND AFFIRMATIVE DEFENSE 19. This Court lacks subject matter jurisdiction over this action. FOR A THIRD AFFIRMATIVE DEFENSE 20. This Court lacks personal jurisdiction over GEI. FOR A FOURTH AFFIRMATIVE DEFENSE 21. Plaintiff1 failed to properly effect service against GEI. FOR A FIFTH AFFIRMATIVE DEFENSE 22. Plaintiff’s claims should be dismissed on the ground of forum non conveniens. FOR A SIXTH AFFIRMATIVE DEFENSE 23. Plaintiff’s claims should be dismissed on the ground of improper venue. FOR A SEVENTH AFFIRMATIVE DEFENSE 24. Plaintiff’s claims against GEI were not commenced within the time limited by law, and therefore Plaintiff’s claims against GEI are barred by the applicable Statute of Limitations. FOR AN EIGHTH AFFIRMATIVE DEFENSE 25. Plaintiff failed and neglected to maintain this action in a diligent and timely fashion, and therefore Plaintiff’s claims against GEI are barred by the doctrine of laches. FOR A NINTH AFFIRMATIVE DEFENSE 26. All claims are barred by the applicable statute of repose. FOR A TENTH AFFIRMATIVE DEFENSE 27. The Complaint, and each and every claim therein considered separately, is vague and uncertain. 1 The term “Plaintiff,” as used herein, refers to Plaintiffs Robert E. Shaw and Janet A. Shaw, his spouse, individually or collectively, as appropriate. 4 5 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR AN ELEVENTH AFFIRMATIVE DEFENSE 28. Plaintiff’s claims against GEI should be dismissed based upon waiver. FOR A TWELFTH AFFIRMATIVE DEFENSE 29. Plaintiff’s claims against GEI should be dismissed based upon collateral estoppel or res judicata. FOR A THIRTEENTH AFFIRMATIVE DEFENSE 30. Plaintiff lacks the legal capacity, standing, or authority to bring this action. FOR A FOURTEENTH AFFIRMATIVE DEFENSE 31. Plaintiff’s claims against GEI should be dismissed based upon documentary evidence. FOR A FIFTEENTH AFFIRMATIVE DEFENSE 32. Plaintiff’s claims against GEI should be dismissed based upon payment or release. FOR A SIXTEENTH AFFIRMATIVE DEFENSE 33. Plaintiff’s claims against GEI are barred by prior accord and satisfaction. FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 34. At all relevant times, GEI and the agents, servants, and employees of GEI complied with all applicable safety rules, laws, regulations, and standards in effect, conformed to the available knowledge, research data, and technology of the medical, scientific, and industrial communities, acted reasonably in all of its activities, and conducted its operations in a reasonable manner. FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 35. At all relevant times, the products and equipment of GEI were in compliance with all applicable agency standards, including the National Institute for Occupational Safety and Health (NIOSH), Occupational Safety and Health Administration (OSHA), and the Bureau of Mines. 5 6 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR A NINETEENTH AFFIRMATIVE DEFENSE 36. Plaintiff fails to identify any defect in GEI’s products and equipment that caused Plaintiff to be injured. FOR A TWENTIETH AFFIRMATIVE DEFENSE 37. Plaintiff fails to raise an inference that there was a defect in GEI’s products and equipment of which Plaintiff should have been warned. FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 38. Plaintiff’s claims against GEI are barred because GEI’s products and equipment were designed, manufactured, and marketed in accordance with the state of the art, and when such products and equipment left GEI’s control, no practical and technically feasible alternative formulation was available that would have prevented the harm for which Plaintiff seeks to recover without substantially impairing the safety, efficacy, or usefulness of the products and equipment for their intended use. FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 39. To the extent that Plaintiff’s claims against GEI fail to accord with the Uniform Commercial Code, including but not limited to Section 2-725 thereof, Plaintiff’s claims against GEI are barred. FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 40. GEI gave, made, or otherwise extended no warranties, whether express or implied, upon which Plaintiff has a right to rely. FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 41. Plaintiff did not directly or indirectly purchase any products or equipment from GEI, and Plaintiff neither received nor relied upon any warranty or representation that may be alleged to have been made by GEI. FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 42. 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 GEI. 6 7 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 43. Insofar as Plaintiff asserts any breach of express or implied warranty, Plaintiff’s claims against GEI are legally insufficient by reason of the failure to allege privity of contract or privity of warranty between Plaintiff and GEI. FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 44. To the extent that Plaintiff alleges rights assertedly derived from oral warranties, statements, or undertakings on the part of GEI, Plaintiff’s claims against GEI are barred by the applicable statute of frauds. FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 45. Plaintiff’s claims against GEI are barred by the doctrines contained in § 402A of the Restatement (Second) of Torts, comment k to § 402A of the Restatement (Second) of Torts, and the Restatement (Third) of Torts: Products Liability. FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 46. GEI is not and was not a manufacturer, seller, or supplier within the meaning of the doctrine of strict liability in tort or contract. FOR A THIRTIETH AFFIRMATIVE DEFENSE 47. At all times relevant, any product or equipment of GEI which Plaintiff allegedly used was fit and proper for its intended purpose, and the warnings and instructions given outweighed any possible risk inherent in the use of the product or equipment. FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 48. Plaintiff’s alleged injuries and damages arose, in whole or in part, out of the risks, hazards, and dangers incident to the occupation of Plaintiff; these risks, hazards, and dangers, whether related to silica or not, were open, obvious, and well-known to Plaintiff; and Plaintiff’s claims against GEI are barred by virtue of Plaintiff’s assumption of these risks, hazards, and dangers. 7 8 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 49. GEI’s products were not defective or dangerous when they left the possession of GEI or at any other relevant time. FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 50. Plaintiff’s claims against GEI are barred, in whole or in part, because Plaintiff’s injuries were actually or proximately caused, in whole or in part, by the misuse, unintended use, abuse, mistreatment, unauthorized alteration or modification, or misapplication of the product or equipment at issue, and any recovery must be diminished by reason of the misuse, unintended use, abuse, mistreatment, unauthorized alteration or modification, or misapplication of the product or equipment. FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 51. Plaintiff’s claims are preempted by federal or state law. Plaintiff’s claims are also preempted or barred by the doctrine of primary jurisdiction to the extent the activities or conditions alleged in the Complaint have been, or are being, supervised by competent regulatory authorities, and Plaintiff’s claims would interfere with and frustrate the purposes of the statutory scheme. FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 52. 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 or Rule 1001 of the New York Civil Practice Law and Rules (“CPLR”). FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 53. Proceeding in this action without all other entities in Bankruptcy relating thereto, including Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight Insulation, Owens-Corning or Standard Insulations, or W.R. Grace, would be in violation of GEI’s constitutional rights. FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 54. To the extent Plaintiff’s alleged injuries and damages are governed by the applicable Workers’ Compensation statutes, Plaintiff’s sole and exclusive 8 9 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 remedy, if any, lies within the terms and ambit of said statutes. FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 55. The within action cannot be maintained as there is another, virtually identical, action brought by Plaintiff currently pending. FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 56. Plaintiff’s alleged injuries and damages were not proximately caused by any act or omission by GEI or any individual acting under its direction or control. FOR A FORTIETH AFFIRMATIVE DEFENSE 57. Plaintiff’s claims against GEI are barred because the injury was actually or proximately caused, in whole or in part, by the intervening, superseding, or illegal conduct of Plaintiff, independent third parties, or events that were extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from GEI’s conduct or control. FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 58. Plaintiff’s claims against GEI are barred, in whole or in part, because Plaintiff’s injuries were caused, in whole or in part, by the negligence, fault, wrongful conduct, omissions, or breaches of legal duty of one or more persons or entities, other than GEI, over whom GEI exercised neither control nor right of control, and with whom GEI had no legal relationship, and for whose conduct, acts, omissions, or breaches of legal duty GEI is not liable. Any recovery is subject to reduction or offset under the doctrines of comparative fault, contributory negligence, or assumption of risk. FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 59. Plaintiff’s claims against GEI are barred, in whole or in part, by the “learned intermediary,” “informed intermediary,” or “sophisticated user” doctrines. 9 10 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR A FORTY-THIRD AFFIRMATIVE DEFENSE 60. The risk of injury or damage from the use of or exposure to any product of GEI to which Plaintiff was allegedly exposed is extremely remote and thus, GEI had no duty to warn of such remote risks. FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE 61. Plaintiff failed to mitigate or otherwise act to lessen or reduce the alleged injuries and damages. FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE 62. Plaintiff’s alleged injuries and damages were caused directly, solely, and proximately by sensitivities, idiosyncrasies, or other reactions peculiar to Plaintiff alone and not found in the general public. FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE 63. Plaintiff’s preexisting medical or genetic conditions, diseases, illnesses, or injuries caused the alleged injuries and damages. FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE 64. To the extent that Plaintiff contributed to the alleged injuries and damages 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 or injuries and damages related thereto or caused thereby pursuant to the Restatement of Torts (Second) § 433A. FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE 65. To the extent that Plaintiff was exposed to any toxic substance not the subject of this action, any liability should be reduced to the extent any alleged injuries or damages are related thereto or caused thereby. FOR A FORTY-NINTH AFFIRMATIVE DEFENSE 66. Plaintiff’s alleged injuries and damages resulted from operation of nature, and not from want of care or breach of duty by GEI. 10 11 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR A FIFTIETH AFFIRMATIVE DEFENSE 67. GEI owed no legal duty of care to Plaintiff. FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE 68. 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 danger from the products or equipment at issue when used in the manner and for the purposes intended, so that there was no duty by GEI 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 FIFTY-SECOND AFFIRMATIVE DEFENSE 69. GEI had no knowledge or reason to know of any alleged risks associated with silica at any time during the periods complained of by Plaintiff, and none of the alleged injuries were foreseeable at the time of the alleged acts or omissions. FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE 70. To the extent that the alleged exposure to GEI’s product or equipment occurred prior to the date of Plaintiff’s marriage, any loss of consortium claim is barred as a matter of law. FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE 71. The conditions precedent to the maintenance of a wrongful death claim have not been met. FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE 72. GEI is immune from liability for any conduct performed in conformity with the United States government specifications, requirements, or contracts, or those of another federal or state entity, or those of Plaintiff’s employer. FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE 73. Any recovery must be reduced by collateral source payments 11 12 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 pursuant to CPLR 4545. FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE 74. Article 16 of the CPLR applies to this action and pursuant to the law of New York, the liability, if any, of GEI for non-economic loss is not joint and several but shall be limited to the proportionate share, if any, attributed to GEI. FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE 75. Any verdict or judgment against GEI is entitled to reduction pursuant to General Obligations Law § 15-108, on the basis of prior settlements or compromises. FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE 76. To the extent Plaintiff asserts “market share” liability or “enterprise” liability, the Complaint, and each and every claim therein considered separately, fails to state facts sufficient to constitute a cause of action against GEI. FOR A SIXTIETH AFFIRMATIVE DEFENSE 77. To the extent that foreign law may apply to Plaintiff’s claims, GEI reserves the right to request its application. FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE 78. 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 is unconstitutional and deprives GEI of its constitutional rights and is wholly void and unenforceable. FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE 79. To the extent that Plaintiff seeks punitive damages against GEI 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. 12 13 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE 80. No act or omission of GEI was malicious, willful, or reckless, and to the extent that Plaintiff seeks punitive damages against GEI, these damages are improper, unwarranted, not authorized by law, and unrecoverable. FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE 81. To the extent that Plaintiff seeks punitive damages against GEI, an award of such damages would be unconstitutional in that, inter alia: (a) subjecting GEI to multiple trials and the multiple impositions of punitive damages for a single course of conduct would violate both substantive and procedural due process; (b) the standard governing the award of punitive damages is constitutionally void for vagueness; (c) it would be a violation of due process to award punitive damages based upon vague and undefined standards of liability or upon any standard of proof less than “clear and convincing” evidence; (d) an award of punitive damages would violate GEI’s privileges and immunities, due process, and equal protection rights; and (e) the amount of punitive damages sought is unconstitutionally excessive and disproportionate to GEI’s alleged conduct. Accordingly, an award of punitive damages against GEI would violate the United States Constitution, including the Due Process Clause of the Fourteenth Amendment and the Commerce Clause under Article I, and under the Constitution of the State of New York, including the Due Process Clause of Article 1, Section 6. FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE 82. Claims other than personal injury and property damage are not revived by New York’s Toxic Tort Revival Act codified at CPLR 214-c. FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE 83. Plaintiff fails to plead fraud with CPLR 3016(b)’s required specificity. 13 14 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE 84. New York does not recognize civil conspiracy to commit a tort as an independent cause of action. To the extent that Plaintiff fails to demonstrate the underlying tort, Plaintiff fails to state a claim for civil conspiracy under New York law. FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE 85. 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. FOR A SIXTY-NINTH AFFIRMATIVE DEFENSE 86. GEI will rely upon any and all further defenses that become available or appear during the discovery and proceedings in this action and hereby specifically reserves the right to amend this Answer, Affirmative Defenses, and Cross-Claims for the purposes of asserting any such additional defenses. ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS 87. GEI denies any and all cross-claims for contribution or indemnification that have been asserted or may be asserted at any time by co- defendants in this action. 88. GEI denies all material allegations contained in all co-defendants’ cross-claims, and GEI does not waive any defenses to any cross-claims. 89. GEI repeats and reasserts the affirmative defenses raised above and incorporates each herein as affirmative defenses to any cross-claims asserted against GEI. CROSS-CLAIMS AGAINST CO-DEFENDANTS AND THIRD-PARTY DEFENDANTS 90. If Plaintiff sustained injuries at the time and place set forth in the Complaint through any carelessness, recklessness, act, omission, negligence, breach of duty, breach of warranty, or breach of express or implied contract, other than that of Plaintiff, then such injuries and any resultant damages arose out of the carelessness, recklessness, act, omission, negligence, breach of duty, breach of 14 15 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 warranty, or breach of express or implied contract of co-defendants or third-party defendants now or hereafter named, with indemnification or contribution to GEI as implied-in-fact or implied-in-law. 91. If GEI is found liable as to Plaintiff or any third-party plaintiff for the injuries and damages set forth in the Complaint or any third-party complaint, then co-defendants or third-party defendants now or hereafter named will be liable jointly and severally to GEI and will be bound to fully indemnify and hold GEI harmless for the full amount of any verdict or judgment, or in the alternative, GEI is entitled to contribution, in whole or in part, from each of the co-defendants or third-party defendants now or hereafter named, together with the costs and disbursements incurred in the defense of this action. 92. If Plaintiff should recover a judgment against GEI, by operation of law or otherwise, GEI will be entitled to judgment, contribution, or indemnity over and against the co-defendants, their agents, their servants, or their employees, by reason of their carelessness, recklessness, act, omission, negligence, breach of duty, breach of warranty, or breach of express or implied contract for the amount of any such recovery, or a portion thereof, in accordance with principles of law regarding apportionment of fault and damages, along with costs, disbursements, and reasonable expenses of the investigation and defense of this action, including reasonable attorneys’ fees. 93. All cross-claims that have been or will be asserted by other defendants in this action are adopted and incorporated by reference as if fully set forth herein. Additionally, GEI will rely upon any and all further cross-claims that become available to appear during discovery proceedings in this action and hereby specifically reserves the right to amend this answer for the purpose of asserting any such additional cross-claims. 15 16 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 WHEREFORE, GEI demands judgment dismissing the Complaint, with costs and disbursements or, in the event of any judgment against GEI, demands judgment, contribution, or indemnity over and against the co-defendants and third- party defendants now or hereafter named for the amount of any such recovery or a portion thereof, in accordance with the principles of law regarding apportionment of fault and damages, along with costs and disbursements, and such other and further relief as this Court deems appropriate. Dated: April 26, 2023 New York, New York By: Artesia Tso, Esq. Darger Errante Yavitz & Blau LLP 116 East 27th Street, 12th Floor New York, New York 10016 212.452.5300 Counsel for Defendant Gould Electronics Inc. To: John P. Comerford, Esq. Lipsitz, Ponterio & Comerford, LLC 424 Main Street, Suite 1500 Buffalo, New York 14202 716.849.0701 Counsel for Plaintiffs Robert E. Shaw and Janet A. Shaw, his spouse 16 17 of 18 202304261278 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 04/26/2023 03:01 PM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 04/26/2023 VERIFICATION State of New York ) ) ss: County of New York ) The undersigned attorney, admitted to practice in the Courts of New York State, affirms under penalties of perjury that the following statements are true: That the affirmant is as associate of the firm of Darger Errante Yavitz & Blau LLP, counsel for defendant Gould Electronics Inc. in the within action; that the affirmant has read the foregoing Answer to Complaint, Affirmative Defenses, Answer to Cross-Claims, and Cross-Claims of Gould Electronics Inc., and knows the contents thereof, and that the same is true to the affirmant’s own knowledge, except as to those matters therein stated to be alleged on information and belief, and as to those matters the affirmant believes them to be true; that the grounds of the affirmant’s belief as to all matters not stated upon the affirmant’s knowledge are as follows: records, reports, and correspondence in the affirmant’s file; and that the reason that this verification is made by the affirmant and not by the defendant is because the defendant is not in the county where the affirmant has her office. Dated: April 26, 2023 ARTESIA TSO 18 of 18