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FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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IN RE: NEW YORK CITY
ASBESTOS LITIGATION
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DAN ALBASRY, as Trustee of the Estate of NEWAL AL
SAAD, and FIRAS MOHAMMAD, Index No. 190002/2023
Plaintiffs, COLGATE-PALMOLIVE
COMPANY’S VERIFIED ANSWER
-against- TO PLAINTIFFS’ VERIFIED
COMPLAINT WITH AFFIRMATIVE
DEFENSES AND CROSS-CLAIMS
BARRETTS MINERALS INC., et. al.,
Defendants.
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Defendant COLGATE-PALMOLIVE COMPANY (herein referred to as “Colgate" or
"Defendant"), by its attorneys, GORDON REES SCULLY MANSUKHANI LLP, for its Verified Answer
to Plaintiffs’ Verified Complaint states as follows:
ANSWER
FIRST: Defendant denies each and every material allegation set forth in Plaintiffs’ Verified
Complaint and refers all questions of fact and law to the trier of fact and this Honorable Court.
SECOND: Defendant denies knowledge or information as to each and every material
allegation set forth in Plaintiffs’ Verified Complaint as they pertain to any other named defendants.
AS AND FOR A FIRST
AFFIRMATIVE DEFENSE
The Verified Complaint fails to state a claim upon which relief may be granted against Defendant.
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AS AND FOR A SECOND
AFFIRMATIVE DEFENSE
Defendant denies that Plaintiffs is entitled to any relief sought in the Verified Complaint.
AS AND FOR A THIRD
AFFIRMATIVE DEFENSE
To the extent consistent with this pleading, Defendant incorporates by reference any and all claims
and defenses of other party defendants against Plaintiffs and/or defendants.
AS AND FOR A FOURTH
AFFIRMATIVE DEFENSE
Defendant asserts insufficiency of process and insufficiency of service of process and reserves the
right to dismiss the Verified Complaint at or prior to the time of trial.
AS AND FOR A FIFTH
AFFIRMATIVE DEFENSE
Plaintiffs lack standing to bring this claim against Defendant.
AS AND FOR A SIXTH
AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, by the applicable statutes of limitations, statute of
repose and/or doctrine of laches.
AS AND FOR A SEVENTH
AFFIRMATIVE DEFENSE
Insofar as the Verified Complaint and each cause of action considered separately allege a cause of
action occurring before September 1, 1975, each such cause of action is barred by the culpable conduct
attributable to Plaintiffs, including contributory negligence and assumption of risk.
AS AND FOR AN EIGHTH
AFFIRMATIVE DEFENSE
Plaintiffs are barred from recovery by the entire controversy doctrine.
AS AND FOR A NINTH
AFFIRMATIVE DEFENSE
Defendant raises all defenses available under the economic loss doctrine.
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AS AND FOR AN TENTH
AFFIRMATIVE DEFENSE
Defendant raises the defense of spoliation of evidence.
AS AND FOR A ELEVENTH
AFFIRMATIVE DEFENSE
Venue in this matter is improper, and said Defendant reserves its right to move or change venue.
AS AND FOR A TWELFTH
AFFIRMATIVE DEFENSE
Forum in this matter is improper and/or inconvenient, and said Defendant reserves its right to file a
motion to dismiss Plaintiffs’ Complaint under the doctrine of forum non conveniens.
AS AND FOR A THIRTEENTH
AFFIRMATIVE DEFENSE
The Verified Complaint fails to plead a cause of action for general or special damages.
AS AND FOR A FOURTEENTH
AFFIRMATIVE DEFENSE
The losses and damages, if any, sustained by Plaintiffs were the result of Plaintiffs or Plaintiffs’
employers and/or agent's negligence and/or contributory negligence, and, accordingly, Plaintiffs are barred
from recovery or limited to recovery in accordance with the provisions of governing law, including CPLR
Article 16.
AS AND FOR A FIFTEENTH
AFFIRMATIVE DEFENSE
Plaintiffs have failed to join necessary and indispensable parties.
AS AND FOR A SIXTEENTH
AFFIRMATIVE DEFENSE
The injuries and damages suffered by the Plaintiffs, if any, were not actually or proximately caused
by any act or omission attributable to Defendant.
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AS AND FOR A SEVENTEENTH
AFFIRMATIVE DEFENSE
Plaintiffs’ alleged losses and damages, if any, were caused, in whole or in part, by the contributory
negligence and/or assumption of the risk on the part of parties to this action other than Defendant and/or
agents, servants, employees, representatives and/or independent contractors of each, and such contributory
negligence and/or assumption of the risk would preclude Plaintiffs and in turn co-defendants from any
recovery against Defendant and/or would reduce the amount of any such recovery against Defendant.
AS AND FOR A EIGHTEENTH
AFFIRMATIVE DEFENSE
Plaintiffs had full knowledge of the risks and possible adverse effects pertaining to his use of the
product(s) described in the Verified Complaint, and all or part of the alleged losses and damages, if any,
sustained by Plaintiffs arose from and were caused by risks of which he was so aware, and such risks were
accepted and assumed by him, and for that reason any recovery against Defendant should be diminished,
reduced, offset, or barred in accordance with the principles of assumption of risk and/or informed consent
and/or the sophisticated user doctrine.
AS AND FOR A NINETEENTH
AFFIRMATIVE DEFENSE
The damages and losses alleged by Plaintiffs were due wholly to Plaintiff or those acting on his
behalf and not in any way to conduct on the part of Defendant.
AS AND FOR A TWENTIETH
AFFIRMATIVE DEFENSE
Plaintiffs’ alleged injuries, if any, were caused or contributed to in whole or in part by the
negligence, carelessness, recklessness or other liability producing conduct of persons, parties and/or entities
other than Defendant, over whom Defendant had no control, right of control, duty to control, or
responsibility.
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AS AND FOR A TWENTY-FIRST
AFFIRMATIVE DEFENSE
Plaintiffs’ alleged losses and damages were directly and proximately caused by the superseding
and intervening acts and conduct of others.
AS AND FOR A TWENTY-SECOND
AFFIRMATIVE DEFENSE
To the extent that Plaintiffs have been reimbursed or has available to him benefits under a collateral
source or third-party pay or scheme, then such claim for services or charges would not be collectible in this
action.
AS AND FOR A TWENTY-THIRD
AFFIRMATIVE DEFENSE
Upon information and belief, pursuant to New York Civil Practice Law and Rules § 4545, if the
Court finds that any costs of medical care, dental care, custodial care or rehabilitation services, loss of
earnings or other economic loss which Plaintiffs might have incurred were replaced or indemnified in whole
or in part from any collateral source, then the Court shall reduce the amount of any award to Plaintiffs by
the amount of said reimbursement minus the premiums, if any, paid by Plaintiffs or anyone on Plaintiffs’
behalf for such benefits for the applicable period immediately preceding the accrual of this lawsuit.
AS AND FOR A TWENTY-FOURTH
AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiffs have failed to mitigate damages and as a result, any recovery
against Defendant should be barred, reduced or offset accordingly.
AS AND FOR A TWENTY-FIFTH
AFFIRMATIVE DEFENSE
Any claims against Defendant must be diminished, reduced, offset or barred in accordance with the
terms or any and all releases executed by Plaintiffs arising out of Plaintiffs’ losses or damages, if any.
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AS AND FOR A TWENTY-SIXTH
AFFIRMATIVE DEFENSE
Defendant is not liable in any way due to the misuse and abuse of the product by third parties over
whom Defendant had no control, right of control, or duty to control.
AS AND FOR A TWENTY-SEVENTH
AFFIRMATIVE DEFENSE
To the extent Plaintiffs claims status as a third party beneficiary, Plaintiffs were neither expressed
nor intended beneficiary of any agreement alleged herein.
AS AND FOR A TWENTY-EIGHTH
AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by lack of privity of contract between Plaintiffs and Defendant, the
failure of Plaintiffs to give timely and adequate notice of any alleged breach and/or the disclaimer of
warranties and limitations of remedies.
AS AND FOR A TWENTY-NINTH
AFFIRMATIVE DEFENSE
Upon present information, Defendant denies that it manufactured, supplied or distributed the
allegedly defective product in question, or that it was involved in the chain of distribution of said defective
product, and strict proof of same is demanded.
AS AND FOR A THIRTIETH
AFFIRMATIVE DEFENSE
The losses and damages of which Plaintiffs complain were not caused by any product
manufactured, distributed or sold by Defendant, but were caused by some other product, process,
occurrence, event, or service over which Defendant exercised no control, right of control, or duty to control.
AS AND FOR A THIRTY-FIRST
AFFIRMATIVE DEFENSE
Defendant denies that it manufactured, sold, or distributed a complete product, and therefore, the
doctrines of strict liability, negligence and breach of warranty do not apply to Defendant.
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AS AND FOR A THIRTY-SECOND
AFFIRMATIVE DEFENSE
Defendant did not extend any warranties, express or implied, to Plaintiffs.
AS AND FOR A THIRTY-THIRD
AFFIRMATIVE DEFENSE
Any warranties, express or implied, extended to Plaintiffs have been fully satisfied by Defendant.
AS AND FOR A THIRTY-FOURTH
AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by Defendant's disclaimers of warranties and limitations of remedies.
AS AND FOR A THIRTY-FIFTH
AFFIRMATIVE DEFENSE
Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from
Defendant, and Plaintiffs neither received nor relied on any representation or warranty allegedly made by
Defendant.
AS AND FOR A THIRTY-SIXTH
AFFIRMATIVE DEFENSE
Any product of Defendant was of merchantable quality and fit for the use and purposes for which
it was intended.
AS AND FOR A THIRTY-SEVENTH
AFFIRMATIVE DEFENSE
Any and all products designed, manufactured, sold and/or distributed by Defendant were at all
times relevant to the Verified Complaint in conformity with the state of the art for the design and
manufacture of such similar products.
AS AND FOR A THIRTY-EIGHTH
AFFIRMATIVE DEFENSE
Any and all warnings and information pertaining to products designed, manufactured and/or
distributed and/or sold by Defendant were, at all times relevant to the Verified Complaint, in conformity
with governmental requirements.
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AS AND FOR A THIRTY-NINTH
AFFIRMATIVE DEFENSE
Defendant denies that the concept of strict liability applies to this litigation.
AS AND FOR A FORTIETH
AFFIRMATIVE DEFENSE
Defendant is entitled to the benefit of all defenses and presumptions contained in, or arising from,
any Uniform Commercial Code enacted by the State whose substantive law controls this action.
AS AND FOR A FORTY-FIRST
AFFIRMATIVE DEFENSE
The alleged sale and/or manufacture of products by Defendant, as referred to in the Verified
Complaint, are not subject to the warrant acts as embodied in the Uniform Commercial Code.
AS AND FOR A FORTY-SECOND
AFFIRMATIVE DEFENSE
Defendant never manufactured, sold or distributed any asbestos-containing material that caused
Plaintiffs’ alleged exposure to asbestos.
AS AND FOR A FORTY-THIRD
AFFIRMATIVE DEFENSE
Plaintiffs’ Verified Complaint is barred by the Exclusive Remedy Provisions of the Workers'
Compensation Act.
AS AND FOR A FORTY-FOURTH
AFFIRMATIVE DEFENSE
All claims brought under New York Law, L. 1986 c. 682 §4 (enacted July 31, 1986) are time-barred
in that said statute is in violation of the Constitution of the United States and the Constitution of the State
of New York.
AS AND FOR A FORTY-FIFTH
AFFIRMATIVE DEFENSE
To the extent that Plaintiffs seek punitive damages against Defendant, these damages are improper,
unwarranted, not authorized by law, and are unconstitutional in the context of this litigation. Subjecting
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Defendant to multiple trials and multiple impositions of punitive damages for the same course of conduct
is a violation of both substantive and procedural due process under the United States Constitution and the
Constitution of the State of New York. The standard for the award of punitive damages is constitutionally
void for vagueness. The lack of limitation on possible multiple impositions of punitive damage awards for
the same alleged course of conduct is unconstitutional.
AS AND FOR A FORTY-SIXTH
AFFIRMATIVE DEFENSE
Plaintiffs’ claim for punitive damages violates Defendant's right to protection for "excessive fines"
as provided in the Eighth Amendment of the United States Constitution and the Constitution of the State of
New York and violates Defendant's right to substantive due process as provided in the Fifth and Fourteenth
Amendments of the United States Constitution and the Constitution of the State of New York. Therefore,
Plaintiffs’ Verified Complaint fails to state a cause of action upon which relief can be granted.
AS AND FOR A FORTY-SEVENTH
AFFIRMATIVE DEFENSE
Plaintiffs’ claim for punitive damages violates Defendant's rights to procedural due process under
the Fourteenth Amendment of the United States Constitution and the Constitution of the State of New York
and, therefore, fails to state a cause of action upon which relief can be granted.
AS AND FOR A FORTY-EIGHTH
AFFIRMATIVE DEFENSE
Defendant did not conceal or withhold any information in breach of any alleged duty.
AS AND FOR A FORTY-NINTH
AFFIRMATIVE DEFENSE
Defendant denies that any product it manufactured or sold was defective or unreasonably
dangerous.
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AS AND FOR A FIFTIETH
AFFIRMATIVE DEFENSE
At the time of the occurrence, the alleged product was not in the same condition as it was on the
date of manufacture, and such change or deviation was an independent act relieving Defendant from any
and all liability.
AS AND FOR A FIFTY-FIRST
AFFIRMATIVE DEFENSE
If it is proven at the time of trial that Defendant's product was used, which allegation is denied,
then any product manufactured and/or sold and/or distributed by Defendant, at all times relevant hereto,
which was or may have been furnished to the Plaintiffs or co-defendants, was subjected to a substantial
change in its condition arid/or altered after it left the control of Defendant. It is further averred that this
change was unforeseeable and that this change was the cause of Plaintiffs’ losses and damages, if any.
AS AND FOR A FIFTY-SECOND
AFFIRMATIVE DEFENSE
Defendant is not in any way liable due to the Plaintiffs’ and/or Plaintiffs’ employer's misuse and
abuse of the product, or the misuse and abuse of the products by third parties over whom Defendant had no
control, right of control or duty to control.
AS AND FOR A FIFTY-THIRD
AFFIRMATIVE DEFENSE
If any product manufactured, distributed or sold by Defendant caused harm as alleged, which is
denied, then such harm and/or damage was the sole proximate result of misuse, modification and/or abuse
of the product in a manner neither intended nor foreseen by Defendant.
AS AND FOR A FIFTY-FOURTH
AFFIRMATIVE DEFENSE
If it is proven at the time of trial that Plaintiffs came into contact with Defendant's product, which
allegation is denied, then any product manufactured and/or sold and/or distributed by Defendant which was
or may have been furnished to the Plaintiffs was furnished with adequate and appropriate warnings.
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AS AND FOR A FIFTY-FIFTH
AFFIRMATIVE DEFENSE
The losses and damages of which Plaintiffs complain were not caused by any product
manufactured, distributed or sold by Defendant, but were caused by some other product, process,
occurrence, event, or service over which Defendant exercised no control, right of control, or duty to control.
AS AND FOR A FIFTY-SIXTH
AFFIRMATIVE DEFENSE
Defendant specifically denies the existence of any contract with Plaintiffs, whether oral or written,
express or implied; but if the existence of any such contract is found, Defendant denies any breach thereof.
AS AND FOR A FIFTY-SEVENTH
AFFIRMATIVE DEFENSE
Defendant's product contained all necessary and appropriate safety equipment and warnings.
AS AND FOR A FIFTY-EIGHTH
AFFIRMATIVE DEFENSE
Any dangers associated with the use of the products that may have caused Plaintiffs’ losses and
damages, if any, were open and obvious and Plaintiffs are therefore barred from recovery.
AS AND FOR A FIFTY-NINTH
AFFIRMATIVE DEFENSE
Defendant raises the defenses available under applicable statutory or common law of the State,
territory, or country whose substantive law controls this action, including but not limited to statutes of
limitations, statutes of repose, and/or limitations of awards, caps on recovery, and setoffs.
AS AND FOR A SIXTIETH
AFFIRMATIVE DEFENSE
If any damages are recoverable against Defendant, the amount of such damages shall be diminished
in accordance with CPLR §1601.
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AS AND FOR A SIXTY-FIRST
AFFIRMATIVE DEFENSE
Defendant claims the benefit of each and every provision of CPLR §4545 including, but not limited
to, any credit or offset by reason of any replacement or indemnification of costs or expenses from any
collateral source.
AS AND FOR A SIXTY-SECOND
AFFIRMATIVE DEFENSE
The damages allegedly sustained by the Plaintiffs was caused, in whole or in part, by the negligence
or other culpable conduct of the Plaintiffs and/or other defendants, which conduct constituted a supervening
cause of Plaintiffs’ alleged injuries.
AS AND FOR A SIXTY-THIRD
AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred in whole or in part by the applicable state-of-the-art defense.
AS AND FOR A SIXTY-FOURTH
AFFIRMATIVE DEFENSE
Defendant had no knowledge or reason to know of any alleged risks associated with asbestos and/or
asbestos-containing products and/or alleged asbestos contamination of cosmetic-grade talc and/or alleged
asbestos contamination of consumer talcum powder products during the periods complained of.
AS AND FOR A SIXTY-FIFTH
AFFIRMATIVE DEFENSE
To the extent that the Plaintiffs was exposed to any product containing asbestos as a result of
conduct by Defendant, which is denied, said exposure was de minims and not a substantial contributing
factor to any asbestos-related disease which the Plaintiffs might have developed, and not actionable at law
or equity.
AS AND FOR A SIXTY-SIXTH
AFFIRMATIVE DEFENSE
Defendant’s products were not unreasonably dangerous as a matter of law.
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AS AND FOR A SIXTY-SEVENTH
AFFIRMATIVE DEFENSE
None of the alleged injury or damage was foreseeable at the time of the alleged acts or omissions
in the Verified Complaint.
AS AND FOR A SIXTY-EIGHTH
AFFIRMATIVE DEFENSE
Defendant hereby gives notice that it intends to rely upon such other affirmative defenses as may
become available or apparent during the course of discovery and thus reserves the right to amend this
answer to assert such defenses.
CROSS-CLAIMS
That if Plaintiffs sustained the damages in the manner and at the time and place alleged by reason
other than Plaintiffs’ own carelessness, recklessness, negligence and/or acts of omission or commission and
if it is found that COLGATE is liable to Plaintiffs herein, all of which is specifically denied, then
COLGATE, on the basis of apportionment of responsibility for the alleged occurrence, is entitled to
indemnification and/or contribution from the co-defendants and judgment over and against the
aforementioned co-defendants, as a result of the carelessness, recklessness, negligence and/or acts of
omission or commission and/or breach of warranty and/or breach of contract and/or strict or statutory
liability of said co-defendants, their agents, servants and/or employees for all or part of any verdict or
judgment that Plaintiffs might recover against COLGATE.
AS AND FOR ITS RESPONSE TO ANY CROSS-CLAIMS
COLGATE denies any and all cross-claims now or hereafter asserted against COLGATE; asserts
all defenses including those set forth above; and avers that it is not liable to Plaintiffs, to defendants, to
any third-party defendant or to any others.
WHEREFORE, Defendant demands judgment dismissing Plaintiffs’ Verified Complaint against it
together with the costs and disbursements of this action, and in the event of any judgment over and against
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Defendant demands judgment, contribution and/or indemnification, along with costs and disbursements,
including reasonable attorneys’ fees.
Dated: New York, New York
January 26, 2023
GORDON REES SCULLY MANSUKHANI LLP
By:
Virginia Squitieri, Esq.
Attorneys for Defendant
COLGATE-PALMOLIVE COMPANY
1 Battery Park Plaza, 28th Floor
New York, New York 10004
(212) 269-5500
TO: Darron E. Berquist, Esq.
LANIER LAW FIRM PLLC
Attorneys for Plaintiffs
126 E. 56th Street, 6th Floor
New York, New York 10022
Tel.: (212) 421-2800
All Defense Counsel (via NYSCEF)
1297473/73774643v.1
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FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x IN RE: NEW YORK CITY ASBESTOS LITIGATION ---------------------------------------------------------------------x DAN ALBASRY, as Trustee of the Estate of NEWAL AL SAAD, and FIRAS MOHAMMAD, Index No. 190002/2023 Plaintiffs, COLGATE-PALMOLIVE COMPANY’S VERIFIED ANSWER -against- TO PLAINTIFFS’ VERIFIED COMPLAINT WITH AFFIRMATIVE DEFENSES AND CROSS-CLAIMS BARRETTS MINERALS INC., et. al., Defendants. ---------------------------------------------------------------------x Defendant COLGATE-PALMOLIVE COMPANY (herein referred to as “Colgate" or "Defendant"), by its attorneys, GORDON REES SCULLY MANSUKHANI LLP, for its Verified Answer to Plaintiffs’ Verified Complaint states as follows: ANSWER FIRST: Defendant denies each and every material allegation set forth in Plaintiffs’ Verified Complaint and refers all questions of fact and law to the trier of fact and this Honorable Court. SECOND: Defendant denies knowledge or information as to each and every material allegation set forth in Plaintiffs’ Verified Complaint as they pertain to any other named defendants. AS AND FOR A FIRST AFFIRMATIVE DEFENSE The Verified Complaint fails to state a claim upon which relief may be granted against Defendant. 1 1 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A SECOND AFFIRMATIVE DEFENSE Defendant denies that Plaintiffs is entitled to any relief sought in the Verified Complaint. AS AND FOR A THIRD AFFIRMATIVE DEFENSE To the extent consistent with this pleading, Defendant incorporates by reference any and all claims and defenses of other party defendants against Plaintiffs and/or defendants. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Defendant asserts insufficiency of process and insufficiency of service of process and reserves the right to dismiss the Verified Complaint at or prior to the time of trial. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Plaintiffs lack standing to bring this claim against Defendant. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, by the applicable statutes of limitations, statute of repose and/or doctrine of laches. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Insofar as the Verified Complaint and each cause of action considered separately allege a cause of action occurring before September 1, 1975, each such cause of action is barred by the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE Plaintiffs are barred from recovery by the entire controversy doctrine. AS AND FOR A NINTH AFFIRMATIVE DEFENSE Defendant raises all defenses available under the economic loss doctrine. 2 2 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR AN TENTH AFFIRMATIVE DEFENSE Defendant raises the defense of spoliation of evidence. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE Venue in this matter is improper, and said Defendant reserves its right to move or change venue. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Forum in this matter is improper and/or inconvenient, and said Defendant reserves its right to file a motion to dismiss Plaintiffs’ Complaint under the doctrine of forum non conveniens. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE The Verified Complaint fails to plead a cause of action for general or special damages. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE The losses and damages, if any, sustained by Plaintiffs were the result of Plaintiffs or Plaintiffs’ employers and/or agent's negligence and/or contributory negligence, and, accordingly, Plaintiffs are barred from recovery or limited to recovery in accordance with the provisions of governing law, including CPLR Article 16. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Plaintiffs have failed to join necessary and indispensable parties. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE The injuries and damages suffered by the Plaintiffs, if any, were not actually or proximately caused by any act or omission attributable to Defendant. 3 3 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ alleged losses and damages, if any, were caused, in whole or in part, by the contributory negligence and/or assumption of the risk on the part of parties to this action other than Defendant and/or agents, servants, employees, representatives and/or independent contractors of each, and such contributory negligence and/or assumption of the risk would preclude Plaintiffs and in turn co-defendants from any recovery against Defendant and/or would reduce the amount of any such recovery against Defendant. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiffs had full knowledge of the risks and possible adverse effects pertaining to his use of the product(s) described in the Verified Complaint, and all or part of the alleged losses and damages, if any, sustained by Plaintiffs arose from and were caused by risks of which he was so aware, and such risks were accepted and assumed by him, and for that reason any recovery against Defendant should be diminished, reduced, offset, or barred in accordance with the principles of assumption of risk and/or informed consent and/or the sophisticated user doctrine. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE The damages and losses alleged by Plaintiffs were due wholly to Plaintiff or those acting on his behalf and not in any way to conduct on the part of Defendant. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE Plaintiffs’ alleged injuries, if any, were caused or contributed to in whole or in part by the negligence, carelessness, recklessness or other liability producing conduct of persons, parties and/or entities other than Defendant, over whom Defendant had no control, right of control, duty to control, or responsibility. 4 4 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs’ alleged losses and damages were directly and proximately caused by the superseding and intervening acts and conduct of others. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE To the extent that Plaintiffs have been reimbursed or has available to him benefits under a collateral source or third-party pay or scheme, then such claim for services or charges would not be collectible in this action. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE Upon information and belief, pursuant to New York Civil Practice Law and Rules § 4545, if the Court finds that any costs of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss which Plaintiffs might have incurred were replaced or indemnified in whole or in part from any collateral source, then the Court shall reduce the amount of any award to Plaintiffs by the amount of said reimbursement minus the premiums, if any, paid by Plaintiffs or anyone on Plaintiffs’ behalf for such benefits for the applicable period immediately preceding the accrual of this lawsuit. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiffs have failed to mitigate damages and as a result, any recovery against Defendant should be barred, reduced or offset accordingly. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE Any claims against Defendant must be diminished, reduced, offset or barred in accordance with the terms or any and all releases executed by Plaintiffs arising out of Plaintiffs’ losses or damages, if any. 5 5 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE Defendant is not liable in any way due to the misuse and abuse of the product by third parties over whom Defendant had no control, right of control, or duty to control. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE To the extent Plaintiffs claims status as a third party beneficiary, Plaintiffs were neither expressed nor intended beneficiary of any agreement alleged herein. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by lack of privity of contract between Plaintiffs and Defendant, the failure of Plaintiffs to give timely and adequate notice of any alleged breach and/or the disclaimer of warranties and limitations of remedies. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE Upon present information, Defendant denies that it manufactured, supplied or distributed the allegedly defective product in question, or that it was involved in the chain of distribution of said defective product, and strict proof of same is demanded. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE The losses and damages of which Plaintiffs complain were not caused by any product manufactured, distributed or sold by Defendant, but were caused by some other product, process, occurrence, event, or service over which Defendant exercised no control, right of control, or duty to control. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE Defendant denies that it manufactured, sold, or distributed a complete product, and therefore, the doctrines of strict liability, negligence and breach of warranty do not apply to Defendant. 6 6 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE Defendant did not extend any warranties, express or implied, to Plaintiffs. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE Any warranties, express or implied, extended to Plaintiffs have been fully satisfied by Defendant. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by Defendant's disclaimers of warranties and limitations of remedies. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from Defendant, and Plaintiffs neither received nor relied on any representation or warranty allegedly made by Defendant. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE Any product of Defendant was of merchantable quality and fit for the use and purposes for which it was intended. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE Any and all products designed, manufactured, sold and/or distributed by Defendant were at all times relevant to the Verified Complaint in conformity with the state of the art for the design and manufacture of such similar products. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE Any and all warnings and information pertaining to products designed, manufactured and/or distributed and/or sold by Defendant were, at all times relevant to the Verified Complaint, in conformity with governmental requirements. 7 7 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE Defendant denies that the concept of strict liability applies to this litigation. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE Defendant is entitled to the benefit of all defenses and presumptions contained in, or arising from, any Uniform Commercial Code enacted by the State whose substantive law controls this action. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE The alleged sale and/or manufacture of products by Defendant, as referred to in the Verified Complaint, are not subject to the warrant acts as embodied in the Uniform Commercial Code. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE Defendant never manufactured, sold or distributed any asbestos-containing material that caused Plaintiffs’ alleged exposure to asbestos. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs’ Verified Complaint is barred by the Exclusive Remedy Provisions of the Workers' Compensation Act. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE All claims brought under New York Law, L. 1986 c. 682 §4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek punitive damages against Defendant, these damages are improper, unwarranted, not authorized by law, and are unconstitutional in the context of this litigation. Subjecting 8 8 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 Defendant to multiple trials and multiple impositions of punitive damages for the same course of conduct is a violation of both substantive and procedural due process under the United States Constitution and the Constitution of the State of New York. The standard for the award of punitive damages is constitutionally void for vagueness. The lack of limitation on possible multiple impositions of punitive damage awards for the same alleged course of conduct is unconstitutional. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ claim for punitive damages violates Defendant's right to protection for "excessive fines" as provided in the Eighth Amendment of the United States Constitution and the Constitution of the State of New York and violates Defendant's right to substantive due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the State of New York. Therefore, Plaintiffs’ Verified Complaint fails to state a cause of action upon which relief can be granted. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claim for punitive damages violates Defendant's rights to procedural due process under the Fourteenth Amendment of the United States Constitution and the Constitution of the State of New York and, therefore, fails to state a cause of action upon which relief can be granted. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE Defendant did not conceal or withhold any information in breach of any alleged duty. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE Defendant denies that any product it manufactured or sold was defective or unreasonably dangerous. 9 9 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE At the time of the occurrence, the alleged product was not in the same condition as it was on the date of manufacture, and such change or deviation was an independent act relieving Defendant from any and all liability. AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE If it is proven at the time of trial that Defendant's product was used, which allegation is denied, then any product manufactured and/or sold and/or distributed by Defendant, at all times relevant hereto, which was or may have been furnished to the Plaintiffs or co-defendants, was subjected to a substantial change in its condition arid/or altered after it left the control of Defendant. It is further averred that this change was unforeseeable and that this change was the cause of Plaintiffs’ losses and damages, if any. AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE Defendant is not in any way liable due to the Plaintiffs’ and/or Plaintiffs’ employer's misuse and abuse of the product, or the misuse and abuse of the products by third parties over whom Defendant had no control, right of control or duty to control. AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE If any product manufactured, distributed or sold by Defendant caused harm as alleged, which is denied, then such harm and/or damage was the sole proximate result of misuse, modification and/or abuse of the product in a manner neither intended nor foreseen by Defendant. AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE If it is proven at the time of trial that Plaintiffs came into contact with Defendant's product, which allegation is denied, then any product manufactured and/or sold and/or distributed by Defendant which was or may have been furnished to the Plaintiffs was furnished with adequate and appropriate warnings. 10 10 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE The losses and damages of which Plaintiffs complain were not caused by any product manufactured, distributed or sold by Defendant, but were caused by some other product, process, occurrence, event, or service over which Defendant exercised no control, right of control, or duty to control. AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE Defendant specifically denies the existence of any contract with Plaintiffs, whether oral or written, express or implied; but if the existence of any such contract is found, Defendant denies any breach thereof. AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE Defendant's product contained all necessary and appropriate safety equipment and warnings. AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE Any dangers associated with the use of the products that may have caused Plaintiffs’ losses and damages, if any, were open and obvious and Plaintiffs are therefore barred from recovery. AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE Defendant raises the defenses available under applicable statutory or common law of the State, territory, or country whose substantive law controls this action, including but not limited to statutes of limitations, statutes of repose, and/or limitations of awards, caps on recovery, and setoffs. AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE If any damages are recoverable against Defendant, the amount of such damages shall be diminished in accordance with CPLR §1601. 1 11 11 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE Defendant claims the benefit of each and every provision of CPLR §4545 including, but not limited to, any credit or offset by reason of any replacement or indemnification of costs or expenses from any collateral source. AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE The damages allegedly sustained by the Plaintiffs was caused, in whole or in part, by the negligence or other culpable conduct of the Plaintiffs and/or other defendants, which conduct constituted a supervening cause of Plaintiffs’ alleged injuries. AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred in whole or in part by the applicable state-of-the-art defense. AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE Defendant had no knowledge or reason to know of any alleged risks associated with asbestos and/or asbestos-containing products and/or alleged asbestos contamination of cosmetic-grade talc and/or alleged asbestos contamination of consumer talcum powder products during the periods complained of. AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE To the extent that the Plaintiffs was exposed to any product containing asbestos as a result of conduct by Defendant, which is denied, said exposure was de minims and not a substantial contributing factor to any asbestos-related disease which the Plaintiffs might have developed, and not actionable at law or equity. AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE Defendant’s products were not unreasonably dangerous as a matter of law. 12 12 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 AS AND FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE None of the alleged injury or damage was foreseeable at the time of the alleged acts or omissions in the Verified Complaint. AS AND FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE Defendant hereby gives notice that it intends to rely upon such other affirmative defenses as may become available or apparent during the course of discovery and thus reserves the right to amend this answer to assert such defenses. CROSS-CLAIMS That if Plaintiffs sustained the damages in the manner and at the time and place alleged by reason other than Plaintiffs’ own carelessness, recklessness, negligence and/or acts of omission or commission and if it is found that COLGATE is liable to Plaintiffs herein, all of which is specifically denied, then COLGATE, on the basis of apportionment of responsibility for the alleged occurrence, is entitled to indemnification and/or contribution from the co-defendants and judgment over and against the aforementioned co-defendants, as a result of the carelessness, recklessness, negligence and/or acts of omission or commission and/or breach of warranty and/or breach of contract and/or strict or statutory liability of said co-defendants, their agents, servants and/or employees for all or part of any verdict or judgment that Plaintiffs might recover against COLGATE. AS AND FOR ITS RESPONSE TO ANY CROSS-CLAIMS COLGATE denies any and all cross-claims now or hereafter asserted against COLGATE; asserts all defenses including those set forth above; and avers that it is not liable to Plaintiffs, to defendants, to any third-party defendant or to any others. WHEREFORE, Defendant demands judgment dismissing Plaintiffs’ Verified Complaint against it together with the costs and disbursements of this action, and in the event of any judgment over and against 13 13 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 Defendant demands judgment, contribution and/or indemnification, along with costs and disbursements, including reasonable attorneys’ fees. Dated: New York, New York January 26, 2023 GORDON REES SCULLY MANSUKHANI LLP By: Virginia Squitieri, Esq. Attorneys for Defendant COLGATE-PALMOLIVE COMPANY 1 Battery Park Plaza, 28th Floor New York, New York 10004 (212) 269-5500 TO: Darron E. Berquist, Esq. LANIER LAW FIRM PLLC Attorneys for Plaintiffs 126 E. 56th Street, 6th Floor New York, New York 10022 Tel.: (212) 421-2800 All Defense Counsel (via NYSCEF) 1297473/73774643v.1 14 14 of 15 FILED: NEW YORK COUNTY CLERK 01/26/2023 11:50 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 01/26/2023 15 of 15