Preview
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM INDEX NO. E2023002784
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3475838
Book Page CIVIL
Return To: No. Pages: 15
CAROL GUCK SNIDER
AVANT BUILDING Instrument: MISCELLANEOUS DOCUMENT
200 DELAWARE AVE SUITE 1200
BUFFALO, NY 14202 Control #: 202306261453
Index #: E2023002784
Date: 06/26/2023
SHAW, ROBERT E Time: 4:25:37 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 15
202306261453 Index #
INDEX : E2023002784
NO. E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
SEVENTH JUDICIAL DISTRICT
_____________________________________________
In Re: Seventh Judicial District
Asbestos Litigation
_____________________________________________
This Document Applies to:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
ROBERT E. SHAW and JANET A. SHAW, his spouse,
VERIFIED ANSWER
Plaintiffs,
Index No.: E2023002784
vs.
ABB, INC., individually and as successor in interest to
ITE IMPERIAL CO.
f/k/a ITE CIRCUIT BREAKER CO., et al.,
Defendants.
VERIFIED ANSWER OF INSULATION DISTRIBUTORS, INC.
TO THE AMENDED COMPLAINT
Defendant, Insulation Distributors, Inc. (hereinafter “IDI”), by its attorneys, Barclay
Damon LLP, as and for its verified answer to the Amended Complaint, respectfully alleges upon
information and belief, as follows:
1. Denies knowledge or information sufficient to form a belief as to the truth of each
and every allegation, and all subparts thereto, contained in Paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11,
12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38,
39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 81, 82, 83, 84, 85, 86, 89, 90, 91, 92, 93, 94, 95, 96, 99,
100, 101, 102, 103 and 105 of the Amended Complaint.
26580144.1
2 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
2. Denies each and every allegation, and all subparts thereto, contained in Paragraphs
2, 50, 51, 52, 53, 54, 55, 56, 57, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 75, 76, 77, 78,
79, 97, and 106 of the Amended Complaint as it relates to defendant, IDI, and denies knowledge
or information sufficient to form a belief as to the truth of the allegations as to the co-defendants.
3. As and for its response to paragraphs 58, 74, 80, 98, and 104 defendant IDI repeats,
reiterates and realleges the responses previously interposed to the allegations contained in
paragraphs 1 through 105 as if fully set forth herein.
4. Denies each and every allegation, and all subparts thereto, contained in Paragraphs
59, 71, 87, and 88 of the Amended Complaint.
5. Admit so much of Paragraph 24 that, IDI was a duly organized domestic
corporation doing business and/or transacting business in the State of New York and denies the
rest and remainder of said paragraph.
6. Denies each and every other remaining allegation of the Amended Complaint not
hereinbefore specifically admitted or otherwise denied.
First Affirmative Defense
7. To the extent that the Amended Complaint herein and the claims made by plaintiffs
was not commenced within the time limited by law, the Amended Complaint is barred by the
statute of limitations.
Second Affirmative Defense
8. That to the extent that plaintiffs have failed and neglected to maintain this action in
a swift, diligent and timely fashion, the plaintiffs’ Amended Complaint is barred by laches.
Third Affirmative Defense
9. All claims brought under the New York Statute of Limitations enacted July 31,
1986 are time-barred in that the statute is unconstitutional.
2
26580144.1
3 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
Fourth Affirmative Defense
10. The Amended Complaint and each and every allegation considered separately fail
to state any cause of action against this answering defendant upon which relief can be granted.
Fifth Affirmative Defense
11. That the injuries and/or illnesses to plaintiffs’, if any, are governed by the applicable
Worker’s Compensation statutes and shall have constituted an industrial disability and plaintiffs’
exclusive remedy, if any, shall lie within the terms and ambit of said statutes.
Sixth Affirmative Defense
12. That the injuries and/or illnesses, if any, sustained by plaintiffs’ were caused or
contributed to by fault, neglect and want of care on the part of plaintiffs or on the part of others for
whose acts or omissions or breach of legal duty IDI is not liable.
Seventh Affirmative Defense
13. That in the event that plaintiffs’ used the product(s) designated in the Amended
Complaint, said product(s) was (were) misused or improperly used, which misuse or improper use
proximately caused and contributed, in whole or in part, to the claims alleged by plaintiffs in the
Amended Complaint.
Eighth Affirmative Defense
14. Upon information and belief, that if the plaintiffs’ sustained any of the injuries,
losses and damages complained of in the Amended Complaint, such injuries, losses and damages
were caused or brought about, in whole or in part, by the negligence, carelessness, assumptions of
risks, fault or other culpable conduct of plaintiffs’.
15. Upon information and belief, that any recovery herein by the plaintiffs, if any, must
be diminished and reduced in the proportion which the said culpable conduct of the plaintiffs’
3
26580144.1
4 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
bears to the alleged culpable conduct of the defendant, if any, which allegedly caused said injuries,
losses or damages.
Ninth Affirmative Defense
16. Insofar as the Amended Complaint and each cause of action considered separately
allege a cause of action accruing on or after September 1, 1975 to recover damages for personal
injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable
conduct attributable to plaintiffs’, including contributory negligence and assumption of risk, in the
proportion which the culpable conduct attributable to plaintiffs bears to the culpable conduct which
caused the damages.
Tenth Affirmative Defense
17. Upon information and belief, that insofar as the plaintiffs rely upon allegations of
negligence, breaches of warranties, fraudulent representations and violations of obligations of
strict product liability as against IDI prior to September, 1975, said causes of action fail to state
facts sufficient to constitute causes of action as against IDI by reason of the failure to allege the
freedom of the plaintiffs from contributory negligence or fault; and that if plaintiffs sustained the
injuries, losses and other damages complained of in the Amended Complaint, they were caused
and brought about, in whole or in part, by the negligence, carelessness, assumptions of risk, fault
or other culpable conduct of plaintiffs.
Eleventh Affirmative Defense
18. While this answering defendant denies the allegations of plaintiffs with respect to
negligence, statutory liability, strict liability, injury and damages, to the extent that plaintiffs 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 answering defendant had neither control nor
right of control.
4
26580144.1
5 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
Twelfth Affirmative Defense
19. That to the extent that the plaintiffs allege rights hereunder assuredly derived from
oral warranties or undertakings on the part of IDI, the Amended Complaint is barred by the
applicable statute of frauds.
Thirteenth Affirmative Defense
20. If plaintiffs’ used any products of IDI, IDI alleges upon information and belief that
said products were produced pursuant to government specifications and as such, IDI is relieved of
any responsibility for the injuries which plaintiffs claim.
Fourteenth Affirmative Defense
21. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the
product caused and/or contributed to the alleged damages or injuries to plaintiffs, then, this
answering defendant requests that the amount of damages which might be recoverable shall be
diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication,
attributed to the plaintiff, his co-workers and/or employers bears to the conduct which caused the
alleged damages or injuries.
Fifteenth Affirmative Defense
22. That the injuries and/or illnesses to plaintiffs, if any, arose, in whole or in part, out
of the risks, hazards and dangers incident to the occupation of said plaintiff, all of which were
open, obvious and well known to plaintiffs, and their cause is barred by virtue of their assumption
of the risks thereof.
Sixteenth Affirmative Defense
23. That to the extent that IDI conformed to the scientific knowledge and research data
available throughout the industry and scientific community, IDI shall have fulfilled its obligations,
if any, herein, and the plaintiff’s claims shall be barred, in whole or in part.
5
26580144.1
6 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
Seventeenth Affirmative Defense
24. Upon information and belief, IDI conformed to the scientific knowledge and data
available in the industry and fulfilled its obligations, if any, and its activities and undertakings, if
any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and the
plaintiffs may not recover herein any exemplary damages or punitive damages against IDI.
Eighteenth Affirmative Defense
25. That the cause of action pleaded in the Amended Complaint insofar as it asserts an
alleged cause of action for express and/or implied warranties and the alleged breaches thereof, as
against IDI, is legally insufficient by reason of the failure to allege privity of contract and/or privity
of warranties between the plaintiffs and IDI.
Nineteenth Affirmative Defense
26. To the extent that any breach of warranty is alleged, plaintiffs have failed to give
proper and prompt notice of any such breach of warranty to IDI.
Twentieth Affirmative Defense
27. Plaintiffs did not directly or indirectly purchase any asbestos-containing products
or materials from this answering defendant and plaintiffs neither received nor relied upon any
representation or warranty allegedly made by this answering defendant.
Twenty-First Affirmative Defense
28. That to the extent that the cause pleaded by plaintiffs herein fails to accord with the
Uniform Commercial Code, including, but not limited to §2-725 thereof, plaintiffs’ Amended
Complaint is barred.
Twenty-Second Affirmative Defense
29. That to the extent that any of the products for which liability is charged herein to
IDI, which is denied were modified, assembled, altered, quantified or in any way materially varied,
6
26580144.1
7 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
which same may be causally related to the claims of plaintiffs, the actions of plaintiffs are barred
herein.
Twenty-Third Affirmative Defense
30. Upon information and belief, that insofar as the plaintiffs allege, as against IDI, any
willful and wanton misconduct, and that if knowingly and intentionally sold a product or products
that it knew to be unreasonably dangerous, all of which IDI denies, any such cause of action or
causes of action accrued more than one year prior to the commencement of this lawsuit and are
time-barred by the one-year statute of limitations.
Twenty-Fourth Affirmative Defense
31. That to the extent that the use, application, employment, surrounding conditions,
safety precautions and other circumstances attendant upon the material allegedly used by plaintiff
was determined, controlled, selected or limited by his employer or by others for whose acts,
omissions or breach IDI is not liable, the Amended Complaint is barred, in whole or in part.
Twenty-Fifth Affirmative Defense
32. Upon information and belief, during the relevant time period, IDI neither
manufactured nor sold asbestos products.
Twenty-Sixth Affirmative Defense
33. If plaintiffs used any products of IDI, upon information and belief, IDI alleges that
said products were used improperly, and without proper safety protection which was available
from plaintiff’s employer(s).
Twenty-Seventh Affirmative Defense
34. Plaintiff’s employer(s) was a sophisticated purchaser upon which devolved all
responsibility for the use of the products referred to in plaintiffs’ Amended Complaint.
7
26580144.1
8 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
Twenty-Eighth Affirmative Defense
35. At all times material hereto, the state of the medical and industrial art was such that
there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently
dangerous or hazardous character or nature of thermal insulation products containing asbestos
when used in the manner and purpose described by plaintiffs, therefore, there was no duty for IDI
to know of such character or nature or to warn plaintiffs or others similarly situated.
Twenty-Ninth Affirmative Defense
36. The answering defendant denies that plaintiffs had any exposure to any asbestos
product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged,
distributed, delivered, sold and/or otherwise placed in the stream of commerce by the answering
defendant, and more particularly denies upon information and belief that this answering defendant
mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed,
delivered, sold and/or otherwise placed in the stream of commerce any asbestos product at the
times and upon the dates alleged in the Amended Complaint herein.
Thirtieth Affirmative Defense
37. This answering defendant denies specifically that, during the periods of exposure
alleged in the Amended Complaint by the plaintiffs, it mined, processed, manufactured, designed,
supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise
placed in the stream of commerce a substantial and/or any percentage of the asbestos products to
which plaintiffs were caused to come into contact and which plaintiff was caused to breathe, inhale
and digest and which thereby caused the plaintiff’s injuries and resulting damages alleged in the
Amended Complaint herein.
8
26580144.1
9 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
Thirty-First Affirmative Defense
38. In the event it should be proven at the time of trial that all the defendants are subject
to market share liability, then, this answering defendant’s share of such liability would be of such
a de minimis amount as to make its contribution for damages negligible, and this answering
defendant would be entitled to contribution, either in whole or in part, from co-defendants.
Thirty-Second Affirmative Defense
39. Upon information and belief, plaintiffs’ failed to mitigate or otherwise act to lessen
or reduce the injuries and disabilities alleged in this Amended Complaint. To the extent that the
plaintiffs used any tobacco products, any liability should be reduced by the extent of any use and/or
injuries related thereto or caused thereby.
Thirty-Third Affirmative Defense
40. This answering defendant specifically denies that the asbestos products alleged in
plaintiffs’ Amended Complaint are products within the meaning and scope of the Restatement of
Torts §402A, and as such the Amended Complaint fails to state a cause of action in strict liability.
Thirty-Fourth Affirmative Defense
41. To the extent that plaintiffs rely on the New York Law L. 1986, C. 682, Section 4
as grounds for reviving or maintaining the action, said statute(s) is unconstitutional and deprives
IDI of its constitutional rights and is wholly void and unenforceable.
Thirty-Fifth Affirmative Defense
42. The action cannot proceed in the absence of all parties who should be named in
accordance with CPLR 1001.
Thirty-Sixth Affirmative Defense
43. Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty-
Eight Insulations and/or Standard Insulations, Owens Corning, Pittsburgh Corning, A C and S,
9
26580144.1
10 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
A.P. Green, and all other entities in bankruptcy relating thereto, would be in violation of IDI’s
constitutional rights.
Thirty-Seventh Affirmative Defense
44. Any damages sustained by plaintiffs resulted from plaintiff’s alleged use of or
exposure to asbestos or asbestos-containing products manufactured and sold pursuant to and in
compliance with contracts with persons or entities other than IDI, which contracts incorporated
mandatory specifications, which were complied with by IDI in the sale of asbestos-containing
products, established by persons or entities other than IDI, including, without limitation, agencies,
agents and departments of the United States, which persons or entities possessed at the time of so
contracting knowledge equal to or greater than that of IDI concerning the properties and
characteristics of asbestos and asbestos-containing products.
Thirty-Eighth Affirmative Defense
45. Any recovery by the plaintiffs herein must be reduced by collateral source
payments pursuant to CPLR §4545.
Thirty-Ninth Affirmative Defense
46. Plaintiffs contributed to their illness by the use, either in whole or in part, of other
substances, products, medications and drugs. To the extent that the plaintiffs used any tobacco
products, any liability should be reduced by the extent of any use and/or injuries related thereto or
caused thereby.
Fortieth Affirmative Defense
47. Plaintiffs’ cause of action for exemplary and punitive damages is barred because
such damages are not recoverable or warranted in this action.
10
26580144.1
11 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
Forty-First Affirmative Defense
48. Plaintiffs’ claims are barred by the doctrine of res judicata and/or collateral
estoppel.
Forty-Second Affirmative Defense
49. That defendant, IDI, denies any negligence, culpable conduct or liability on its part,
but if said defendant is ultimately found to be liable to plaintiffs, then, pursuant to Article 16 of
the Civil Practice Law & Rules, it shall only be liable for its equitable share of plaintiffs’ recovery
since any liability which will be found against it will be insufficient to impose joint liability.
Forty-Third Affirmative Defense
50. Upon information and belief, defendant, IDI, has obtained a release from plaintiffs
in this action and the claim is therefore satisfied.
Forty-Fourth Affirmative Defense
51. To the extent that plaintiffs’ alleged exposure to IDI products occurred outside of
the State of New York and insofar as IDI is neither incorporated, nor maintains its principal place
of business in New York, IDI is not subject to the jurisdiction of New York State Courts.
Forty-Fifth Affirmative Defense
52. That in the event there has been a settlement between plaintiffs and any joint or co-
tortfeasor, or person, company or entity liable or claimed to be liable, including bankrupt persons,
companies and entities, then defendant, IDI, hereby pleads and seeks the full benefit of §15-108
of the General Obligations Law that plaintiffs’ claim against defendant IDI be reduced to the fullest
extent permitted by §15-108 of the General Obligations Law.
CROSS-CLAIM AGAINST CO-DEFENDANTS
53. If plaintiffs were caused to sustain damages at the time and place set forth in the
plaintiffs’ Amended Complaint through any carelessness, recklessness and/or negligence other
11
26580144.1
12 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
than that of plaintiff himself, including, but not limited to, the manufacture and distribution of the
asbestos product, breaches of warranty, either express or implied, and in strict liability in tort, these
damages will have been caused and brought about by reason of the carelessness, recklessness
and/or negligence of the co-defendants not represented by this verified answer.
54. If the plaintiffs should recover a judgment against this answering defendant, by
operation of law or otherwise, it will be entitled to judgment, contribution and/or indemnity over
and against the co-defendants not represented by this verified answer, their agents, servants and/or
employees, by reason of their carelessness, recklessness and/or negligence for the amount of any
such recovery, or a portion thereof, in accordance with the principals 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.
WHEREFORE, IDI demands judgment dismissing the Amended Complaint; diminishing
plaintiffs’ damages in the proportion which the culpable conduct attributed to the plaintiffs bears
to the culpable conduct which may have caused such damages; apportioning the relative culpability
between the defendants and between liable entities pursuant to Article 16 of the CPLR and Article
14 of the CPLR and awarding the costs and disbursements of this action together with such other
and further relief as to this court may seem just and proper.
DATED: Buffalo, New York
June 26, 2023
INSULATION DISTRIBUTORS, INC.,
Defendant
By
Carol G. Snider, Esq.
BARCLAY DAMON LLP
The Avant Building - Suite 1200
200 Delaware Avenue
Buffalo, New York 14202-2150
(716) 856-5500
12
26580144.1
13 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
TO: John P. Comerford, Esq.
LIPSITZ PONTERIO & COMERFORD, LLC
Attorneys for Plaintiff
424 Main Street, Suite 1500
Buffalo, New York 14202
(716) 849-0701
13
26580144.1
14 of 15
202306261453 IndexNO.
INDEX #: E2023002784
E2023002784
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023
VERIFICATION
STATE OF NEW YORK )
I SS.
t
COUNTY OF ERIE I
I
CAROL G. SNIDER, ESQ., being duly sworn herein says:
1. That she is one of the attorneys for the defendant. lnsulation Distributors, Inc., in
this action; that she has read the verified answer to the Amended Compiaint and knows the contents
thereof; that the same is true to her own knowledge except as to the matters therein stated to be
alleged upon infbrmation and belief and as to those matters, she believes them to be true.
2. That the reason this verification is made by the deponent and not by defendant,
Insulation Distributors, Inc., is that the answering defendant is a dissolved corporation no longer
in existence.
3. That the sources of deponent's knowledge and the grounds for her belief are fron-r
the correspondence with said defendanl. Insulation Distributors, Inc., and con'espondence and
conversations with the representatives of said defendant, and from repofis of investigation of the
said defendant's representatives, certain of which the correspondence and reports are now in
deponent' s possession.
{ffi"-
Subscribed and sworn to before
me thiso!fofuday of June,2023
Notarv Pubric OtW,t839lsg
PATRICIAOEEE
Notary Public, Stale of Ne'txYo* 14
26580 l44 l ur"",f,*,'1ff 3'!*?5:ffl A.BS
15 of 15
Preview
FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM INDEX NO. E2023002784 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3475838 Book Page CIVIL Return To: No. Pages: 15 CAROL GUCK SNIDER AVANT BUILDING Instrument: MISCELLANEOUS DOCUMENT 200 DELAWARE AVE SUITE 1200 BUFFALO, NY 14202 Control #: 202306261453 Index #: E2023002784 Date: 06/26/2023 SHAW, ROBERT E Time: 4:25:37 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 15 202306261453 Index # INDEX : E2023002784 NO. E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 SUPREME COURT OF THE STATE OF NEW YORK SEVENTH JUDICIAL DISTRICT _____________________________________________ In Re: Seventh Judicial District Asbestos Litigation _____________________________________________ This Document Applies to: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE ROBERT E. SHAW and JANET A. SHAW, his spouse, VERIFIED ANSWER Plaintiffs, Index No.: E2023002784 vs. ABB, INC., individually and as successor in interest to ITE IMPERIAL CO. f/k/a ITE CIRCUIT BREAKER CO., et al., Defendants. VERIFIED ANSWER OF INSULATION DISTRIBUTORS, INC. TO THE AMENDED COMPLAINT Defendant, Insulation Distributors, Inc. (hereinafter “IDI”), by its attorneys, Barclay Damon LLP, as and for its verified answer to the Amended Complaint, respectfully alleges upon information and belief, as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation, and all subparts thereto, contained in Paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 81, 82, 83, 84, 85, 86, 89, 90, 91, 92, 93, 94, 95, 96, 99, 100, 101, 102, 103 and 105 of the Amended Complaint. 26580144.1 2 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 2. Denies each and every allegation, and all subparts thereto, contained in Paragraphs 2, 50, 51, 52, 53, 54, 55, 56, 57, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 75, 76, 77, 78, 79, 97, and 106 of the Amended Complaint as it relates to defendant, IDI, and denies knowledge or information sufficient to form a belief as to the truth of the allegations as to the co-defendants. 3. As and for its response to paragraphs 58, 74, 80, 98, and 104 defendant IDI repeats, reiterates and realleges the responses previously interposed to the allegations contained in paragraphs 1 through 105 as if fully set forth herein. 4. Denies each and every allegation, and all subparts thereto, contained in Paragraphs 59, 71, 87, and 88 of the Amended Complaint. 5. Admit so much of Paragraph 24 that, IDI was a duly organized domestic corporation doing business and/or transacting business in the State of New York and denies the rest and remainder of said paragraph. 6. Denies each and every other remaining allegation of the Amended Complaint not hereinbefore specifically admitted or otherwise denied. First Affirmative Defense 7. To the extent that the Amended Complaint herein and the claims made by plaintiffs was not commenced within the time limited by law, the Amended Complaint is barred by the statute of limitations. Second Affirmative Defense 8. That to the extent that plaintiffs have failed and neglected to maintain this action in a swift, diligent and timely fashion, the plaintiffs’ Amended Complaint is barred by laches. Third Affirmative Defense 9. All claims brought under the New York Statute of Limitations enacted July 31, 1986 are time-barred in that the statute is unconstitutional. 2 26580144.1 3 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 Fourth Affirmative Defense 10. The Amended Complaint and each and every allegation considered separately fail to state any cause of action against this answering defendant upon which relief can be granted. Fifth Affirmative Defense 11. That the injuries and/or illnesses to plaintiffs’, if any, are governed by the applicable Worker’s Compensation statutes and shall have constituted an industrial disability and plaintiffs’ exclusive remedy, if any, shall lie within the terms and ambit of said statutes. Sixth Affirmative Defense 12. That the injuries and/or illnesses, if any, sustained by plaintiffs’ were caused or contributed to by fault, neglect and want of care on the part of plaintiffs or on the part of others for whose acts or omissions or breach of legal duty IDI is not liable. Seventh Affirmative Defense 13. That in the event that plaintiffs’ used the product(s) designated in the Amended Complaint, said product(s) was (were) misused or improperly used, which misuse or improper use proximately caused and contributed, in whole or in part, to the claims alleged by plaintiffs in the Amended Complaint. Eighth Affirmative Defense 14. Upon information and belief, that if the plaintiffs’ sustained any of the injuries, losses and damages complained of in the Amended Complaint, such injuries, losses and damages were caused or brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault or other culpable conduct of plaintiffs’. 15. Upon information and belief, that any recovery herein by the plaintiffs, if any, must be diminished and reduced in the proportion which the said culpable conduct of the plaintiffs’ 3 26580144.1 4 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 bears to the alleged culpable conduct of the defendant, if any, which allegedly caused said injuries, losses or damages. Ninth Affirmative Defense 16. Insofar as the Amended Complaint and each cause of action considered separately allege a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to plaintiffs’, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to plaintiffs bears to the culpable conduct which caused the damages. Tenth Affirmative Defense 17. Upon information and belief, that insofar as the plaintiffs rely upon allegations of negligence, breaches of warranties, fraudulent representations and violations of obligations of strict product liability as against IDI prior to September, 1975, said causes of action fail to state facts sufficient to constitute causes of action as against IDI by reason of the failure to allege the freedom of the plaintiffs from contributory negligence or fault; and that if plaintiffs sustained the injuries, losses and other damages complained of in the Amended Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumptions of risk, fault or other culpable conduct of plaintiffs. Eleventh Affirmative Defense 18. While this answering defendant denies the allegations of plaintiffs with respect to negligence, statutory liability, strict liability, injury and damages, to the extent that plaintiffs 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 answering defendant had neither control nor right of control. 4 26580144.1 5 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 Twelfth Affirmative Defense 19. That to the extent that the plaintiffs allege rights hereunder assuredly derived from oral warranties or undertakings on the part of IDI, the Amended Complaint is barred by the applicable statute of frauds. Thirteenth Affirmative Defense 20. If plaintiffs’ used any products of IDI, IDI alleges upon information and belief that said products were produced pursuant to government specifications and as such, IDI is relieved of any responsibility for the injuries which plaintiffs claim. Fourteenth Affirmative Defense 21. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the product caused and/or contributed to the alleged damages or injuries to plaintiffs, then, this answering defendant requests that the amount of damages which might be recoverable shall be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication, attributed to the plaintiff, his co-workers and/or employers bears to the conduct which caused the alleged damages or injuries. Fifteenth Affirmative Defense 22. That the injuries and/or illnesses to plaintiffs, if any, arose, in whole or in part, out of the risks, hazards and dangers incident to the occupation of said plaintiff, all of which were open, obvious and well known to plaintiffs, and their cause is barred by virtue of their assumption of the risks thereof. Sixteenth Affirmative Defense 23. That to the extent that IDI conformed to the scientific knowledge and research data available throughout the industry and scientific community, IDI shall have fulfilled its obligations, if any, herein, and the plaintiff’s claims shall be barred, in whole or in part. 5 26580144.1 6 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 Seventeenth Affirmative Defense 24. Upon information and belief, IDI conformed to the scientific knowledge and data available in the industry and fulfilled its obligations, if any, and its activities and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and the plaintiffs may not recover herein any exemplary damages or punitive damages against IDI. Eighteenth Affirmative Defense 25. That the cause of action pleaded in the Amended Complaint insofar as it asserts an alleged cause of action for express and/or implied warranties and the alleged breaches thereof, as against IDI, is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between the plaintiffs and IDI. Nineteenth Affirmative Defense 26. To the extent that any breach of warranty is alleged, plaintiffs have failed to give proper and prompt notice of any such breach of warranty to IDI. Twentieth Affirmative Defense 27. Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from this answering defendant and plaintiffs neither received nor relied upon any representation or warranty allegedly made by this answering defendant. Twenty-First Affirmative Defense 28. That to the extent that the cause pleaded by plaintiffs herein fails to accord with the Uniform Commercial Code, including, but not limited to §2-725 thereof, plaintiffs’ Amended Complaint is barred. Twenty-Second Affirmative Defense 29. That to the extent that any of the products for which liability is charged herein to IDI, which is denied were modified, assembled, altered, quantified or in any way materially varied, 6 26580144.1 7 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 which same may be causally related to the claims of plaintiffs, the actions of plaintiffs are barred herein. Twenty-Third Affirmative Defense 30. Upon information and belief, that insofar as the plaintiffs allege, as against IDI, any willful and wanton misconduct, and that if knowingly and intentionally sold a product or products that it knew to be unreasonably dangerous, all of which IDI denies, any such cause of action or causes of action accrued more than one year prior to the commencement of this lawsuit and are time-barred by the one-year statute of limitations. Twenty-Fourth Affirmative Defense 31. That to the extent that the use, application, employment, surrounding conditions, safety precautions and other circumstances attendant upon the material allegedly used by plaintiff was determined, controlled, selected or limited by his employer or by others for whose acts, omissions or breach IDI is not liable, the Amended Complaint is barred, in whole or in part. Twenty-Fifth Affirmative Defense 32. Upon information and belief, during the relevant time period, IDI neither manufactured nor sold asbestos products. Twenty-Sixth Affirmative Defense 33. If plaintiffs used any products of IDI, upon information and belief, IDI alleges that said products were used improperly, and without proper safety protection which was available from plaintiff’s employer(s). Twenty-Seventh Affirmative Defense 34. Plaintiff’s employer(s) was a sophisticated purchaser upon which devolved all responsibility for the use of the products referred to in plaintiffs’ Amended Complaint. 7 26580144.1 8 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 Twenty-Eighth Affirmative Defense 35. At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently dangerous or hazardous character or nature of thermal insulation products containing asbestos when used in the manner and purpose described by plaintiffs, therefore, there was no duty for IDI to know of such character or nature or to warn plaintiffs or others similarly situated. Twenty-Ninth Affirmative Defense 36. The answering defendant denies that plaintiffs had any exposure to any asbestos product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce by the answering defendant, and more particularly denies upon information and belief that this answering defendant mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce any asbestos product at the times and upon the dates alleged in the Amended Complaint herein. Thirtieth Affirmative Defense 37. This answering defendant denies specifically that, during the periods of exposure alleged in the Amended Complaint by the plaintiffs, it mined, processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos products to which plaintiffs were caused to come into contact and which plaintiff was caused to breathe, inhale and digest and which thereby caused the plaintiff’s injuries and resulting damages alleged in the Amended Complaint herein. 8 26580144.1 9 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 Thirty-First Affirmative Defense 38. In the event it should be proven at the time of trial that all the defendants are subject to market share liability, then, this answering defendant’s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and this answering defendant would be entitled to contribution, either in whole or in part, from co-defendants. Thirty-Second Affirmative Defense 39. Upon information and belief, plaintiffs’ failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in this Amended Complaint. To the extent that the plaintiffs used any tobacco products, any liability should be reduced by the extent of any use and/or injuries related thereto or caused thereby. Thirty-Third Affirmative Defense 40. This answering defendant specifically denies that the asbestos products alleged in plaintiffs’ Amended Complaint are products within the meaning and scope of the Restatement of Torts §402A, and as such the Amended Complaint fails to state a cause of action in strict liability. Thirty-Fourth Affirmative Defense 41. To the extent that plaintiffs rely on the New York Law L. 1986, C. 682, Section 4 as grounds for reviving or maintaining the action, said statute(s) is unconstitutional and deprives IDI of its constitutional rights and is wholly void and unenforceable. Thirty-Fifth Affirmative Defense 42. The action cannot proceed in the absence of all parties who should be named in accordance with CPLR 1001. Thirty-Sixth Affirmative Defense 43. Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty- Eight Insulations and/or Standard Insulations, Owens Corning, Pittsburgh Corning, A C and S, 9 26580144.1 10 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 A.P. Green, and all other entities in bankruptcy relating thereto, would be in violation of IDI’s constitutional rights. Thirty-Seventh Affirmative Defense 44. Any damages sustained by plaintiffs resulted from plaintiff’s alleged use of or exposure to asbestos or asbestos-containing products manufactured and sold pursuant to and in compliance with contracts with persons or entities other than IDI, which contracts incorporated mandatory specifications, which were complied with by IDI in the sale of asbestos-containing products, established by persons or entities other than IDI, including, without limitation, agencies, agents and departments of the United States, which persons or entities possessed at the time of so contracting knowledge equal to or greater than that of IDI concerning the properties and characteristics of asbestos and asbestos-containing products. Thirty-Eighth Affirmative Defense 45. Any recovery by the plaintiffs herein must be reduced by collateral source payments pursuant to CPLR §4545. Thirty-Ninth Affirmative Defense 46. Plaintiffs contributed to their illness by the use, either in whole or in part, of other substances, products, medications and drugs. To the extent that the plaintiffs used any tobacco products, any liability should be reduced by the extent of any use and/or injuries related thereto or caused thereby. Fortieth Affirmative Defense 47. Plaintiffs’ cause of action for exemplary and punitive damages is barred because such damages are not recoverable or warranted in this action. 10 26580144.1 11 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 Forty-First Affirmative Defense 48. Plaintiffs’ claims are barred by the doctrine of res judicata and/or collateral estoppel. Forty-Second Affirmative Defense 49. That defendant, IDI, denies any negligence, culpable conduct or liability on its part, but if said defendant is ultimately found to be liable to plaintiffs, then, pursuant to Article 16 of the Civil Practice Law & Rules, it shall only be liable for its equitable share of plaintiffs’ recovery since any liability which will be found against it will be insufficient to impose joint liability. Forty-Third Affirmative Defense 50. Upon information and belief, defendant, IDI, has obtained a release from plaintiffs in this action and the claim is therefore satisfied. Forty-Fourth Affirmative Defense 51. To the extent that plaintiffs’ alleged exposure to IDI products occurred outside of the State of New York and insofar as IDI is neither incorporated, nor maintains its principal place of business in New York, IDI is not subject to the jurisdiction of New York State Courts. Forty-Fifth Affirmative Defense 52. That in the event there has been a settlement between plaintiffs and any joint or co- tortfeasor, or person, company or entity liable or claimed to be liable, including bankrupt persons, companies and entities, then defendant, IDI, hereby pleads and seeks the full benefit of §15-108 of the General Obligations Law that plaintiffs’ claim against defendant IDI be reduced to the fullest extent permitted by §15-108 of the General Obligations Law. CROSS-CLAIM AGAINST CO-DEFENDANTS 53. If plaintiffs were caused to sustain damages at the time and place set forth in the plaintiffs’ Amended Complaint through any carelessness, recklessness and/or negligence other 11 26580144.1 12 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 than that of plaintiff himself, including, but not limited to, the manufacture and distribution of the asbestos product, breaches of warranty, either express or implied, and in strict liability in tort, these damages will have been caused and brought about by reason of the carelessness, recklessness and/or negligence of the co-defendants not represented by this verified answer. 54. If the plaintiffs should recover a judgment against this answering defendant, by operation of law or otherwise, it will be entitled to judgment, contribution and/or indemnity over and against the co-defendants not represented by this verified answer, their agents, servants and/or employees, by reason of their carelessness, recklessness and/or negligence for the amount of any such recovery, or a portion thereof, in accordance with the principals 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. WHEREFORE, IDI demands judgment dismissing the Amended Complaint; diminishing plaintiffs’ damages in the proportion which the culpable conduct attributed to the plaintiffs bears to the culpable conduct which may have caused such damages; apportioning the relative culpability between the defendants and between liable entities pursuant to Article 16 of the CPLR and Article 14 of the CPLR and awarding the costs and disbursements of this action together with such other and further relief as to this court may seem just and proper. DATED: Buffalo, New York June 26, 2023 INSULATION DISTRIBUTORS, INC., Defendant By Carol G. Snider, Esq. BARCLAY DAMON LLP The Avant Building - Suite 1200 200 Delaware Avenue Buffalo, New York 14202-2150 (716) 856-5500 12 26580144.1 13 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 TO: John P. Comerford, Esq. LIPSITZ PONTERIO & COMERFORD, LLC Attorneys for Plaintiff 424 Main Street, Suite 1500 Buffalo, New York 14202 (716) 849-0701 13 26580144.1 14 of 15 202306261453 IndexNO. INDEX #: E2023002784 E2023002784 FILED: MONROE COUNTY CLERK 06/26/2023 04:25 PM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 06/26/2023 VERIFICATION STATE OF NEW YORK ) I SS. t COUNTY OF ERIE I I CAROL G. SNIDER, ESQ., being duly sworn herein says: 1. That she is one of the attorneys for the defendant. lnsulation Distributors, Inc., in this action; that she has read the verified answer to the Amended Compiaint and knows the contents thereof; that the same is true to her own knowledge except as to the matters therein stated to be alleged upon infbrmation and belief and as to those matters, she believes them to be true. 2. That the reason this verification is made by the deponent and not by defendant, Insulation Distributors, Inc., is that the answering defendant is a dissolved corporation no longer in existence. 3. That the sources of deponent's knowledge and the grounds for her belief are fron-r the correspondence with said defendanl. Insulation Distributors, Inc., and con'espondence and conversations with the representatives of said defendant, and from repofis of investigation of the said defendant's representatives, certain of which the correspondence and reports are now in deponent' s possession. {ffi"- Subscribed and sworn to before me thiso!fofuday of June,2023 Notarv Pubric OtW,t839lsg PATRICIAOEEE Notary Public, Stale of Ne'txYo* 14 26580 l44 l ur"",f,*,'1ff 3'!*?5:ffl A.BS 15 of 15