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FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IN RE: NEW YORK CITY ASBESTOS LITIGATION
DAN ALBASRY, as Trustee of the Estate of NEWAL
AL SAAD, and FIRAS MOHAMMAD,
Plaintiffs, Index No. 190002/2023
v.
BARRETTS MINERALS INC., et al., DEFENDANT BEACON CMP CORP.’S
Defendants. VERIFIED ANSWER TO PLAINTIFFS’
VERIFIED COMPLAINT
Defendant Beacon CMP Corp. (“Defendant” or “Beacon CMP”), by and through its
attorneys, CETRULO LLP, hereby acknowledges receipt of a Summons and
Verified Complaint dated January 5, 2023, which according to Plaintiffs’ Affirmation of Service
was served upon Defendant on or about January 10, 2023.
THE PARTIES
1-5. Defendant is without information or knowledge sufficient to admit or deny the truth
of the allegations contained in paragraphs 1-5.
6. Defendant answers paragraph 6 only to the extent that this paragraph pertains to
Beacon CMP. Accordingly, Defendant is without information or knowledge sufficient to admit or
deny to the truth of the allegations contained in paragraph 6, and therefore denies the same.
7. Defendant states that it is a corporation organized and existing under the laws of
the state of New Jersey. Defendant denies all other allegations contained in paragraph 7.
8-21. Defendant answers paragraphs 8-21 only to the extent that these paragraphs pertain
to Beacon CMP. Accordingly, Defendant is without information or knowledge sufficient to admit
or deny to the truth of the allegations contained in paragraphs 8-21, and therefore denies the same.
22-25. Defendant answers paragraphs 22-25 only to the extent that these paragraphs
pertain to Beacon CMP. Accordingly, Defendant is without information or knowledge sufficient
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to admit or deny to the truth of the allegations contained in paragraphs 22-25, and therefore denies
the same.
Defendant herein repeats, reiterates, and realleges each and every answer to
Paragraphs 1-25 of the Plaintiffs’ Verified Complaint as if set forth in full herein. Defendant is
without information or knowledge sufficient to admit or deny the truth of the allegations contained
in NYCAL – THE LANIER LAW FIRM PLLC VERIFIED COMPLAINT and therefore denies
the same.
FIRST CAUSE OF ACTION
26. As to paragraph 26, Beacon CMP repeats each and every response to paragraphs
1-25 as if same were set forth herein verbatim.
27-42. Beacon CMP denies each and every allegation contained in paragraphs
27-42.
SECOND CAUSE OF ACTION
43. As to paragraph 43, Beacon CMP repeats each and every response to paragraphs
1-42 as if same were set forth herein verbatim.
44-49. Beacon CMP denies each and every allegation contained in paragraphs
44-49.
THIRD CAUSE OF ACTION
50. As to paragraph 50, Beacon CMP repeats each and every response to paragraphs
1-49 as if same were set forth herein verbatim.
51-59. Beacon CMP denies each and every allegation contained in paragraphs 51-59.
FOURTH CAUSE OF ACTION
60. As to paragraph 60, Beacon CMP repeats each and every response to paragraphs
1-59 as if same were set forth herein verbatim.
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61-67. Beacon CMP denies each and every allegation contained in paragraphs
61-67.
FIFTH CAUSE OF ACTION
68. As to paragraph 68, Beacon CMP repeats each and every response to paragraphs
1-67 as if same were set forth herein verbatim.
69-75. Beacon CMP denies each and every allegation contained in paragraphs 69-75.
SIXTH CAUSE OF ACTION
76. As to paragraph 76, Beacon CMP repeats each and every response to paragraphs
1-75 as if same were set forth herein verbatim.
77-93. Beacon CMP denies each and every allegation contained in paragraphs 77-93.
SEVENTH CAUSE OF ACTION
94. As to paragraph 94, Beacon CMP repeats each and every response to paragraphs
1-93 as if same were set forth herein verbatim.
95-100. Beacon CMP denies each and every allegation contained in paragraphs 95-100.
EIGHTH CAUSE OF ACTION
101. As to paragraph 101, Beacon CMP repeats each and every response to paragraphs
1-100 as if same were set forth herein verbatim.
102-162. Beacon CMP denies each and every allegation contained in paragraphs
102-162.
NINTH CAUSE OF ACTION
163. As to paragraph 163, Beacon CMP repeats each and every response to paragraphs
1-162 as if same were set forth herein verbatim.
164. Beacon CMP denies each and every allegation contained in paragraph 164.
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TENTH CAUSE OF ACTION
165. As to paragraph 165, Beacon CMP repeats each and every response to paragraphs
1-164 as if same were set forth herein verbatim.
166. Beacon CMP denies each and every allegation contained in paragraph 166.
ELEVENTH CAUSE OF ACTION
167. As to paragraph 222, Beacon CMP repeats each and every response to paragraphs
1-166 as if same were set forth herein verbatim.
168. Beacon CMP denies each and every allegation contained in paragraph 168.
AND AS FOR ITS RESPONSE TO ANY CROSS-CLAIMS
Beacon CMP denies any and all cross-claims now or hereafter made or asserted against
Beacon CMP. Beacon CMP asserts all defenses including those set forth above and below; and
asserts that it is not liable to Plaintiffs, to any defendant, to any third-party defendant, or to any
other party.
AND AS FOR ITS RESPONSE FOR INDEMNIFICATION
If Beacon CMP is found liable to Plaintiffs its liability will be secondary to that of its co-
defendants and as such Beacon CMP demands judgment against co-defendants for
indemnification in full together with attorney’s fees and costs of defense.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
This defendant never sold talc containing asbestos.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ claims against this defendant are barred by the applicable statute of limitations.
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THIRD AFFIRMATIVE DEFENSE
Plaintiff’s medical condition was caused by factors other than exposure to talc products.
FOURTH AFFIRMATIVE DEFENSE
The complaint fails to state a cause of action upon which relief can be granted as a matter
of law against the Defendant.
FIFTH AFFIRMATIVE DEFENSE
The complaint fails to name indispensable parties.
SIXTH AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over the subject matter of this action.
SEVENTH AFFIRMATIVE DEFENSE
Each claim of plaintiffs is barred as to the Defendant because the action was not
commenced within the statutory limitation period applicable thereto.
EIGHTH AFFIRMATIVE DEFENSE
The within action is barred by the doctrines of waiver and laches.
NINTH AFFIRMATIVE DEFENSE
Each alleged injury and damage of plaintiff resulted from or was proximately caused by
risks assumed by plaintiff in the course of plaintiff’s employment and other activities.
TENTH AFFIRMATIVE DEFENSE
Each alleged injury and damage of plaintiff resulted from and was proximately caused by
the contributory negligence and culpable conduct attributable to plaintiff.
ELEVENTH AFFIRMATIVE DEFENSE
Any alleged injury and damage sustained by plaintiff was worsened by the failure of
plaintiff to act to mitigate such damage and injury.
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TWELFTH AFFIRMATIVE DEFENSE
Each alleged injury and damage of plaintiff resulted from and was proximately caused by
the negligence of persons other than the Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE
Defendant did not engage in any negligent act or omission, any intentional or malicious
act, any fraud, or take part in any conspiracy.
FOURTEENTH AFFIRMATIVE DEFENSE
Article 16 of the CPLR is applicable hereto and Defendant’s liability is limited pursuant to
CPLR 1601.
FIFTEENTH AFFIRMATIVE DEFENSE
If plaintiffs are unable to identify the manufacturer of the alleged injury-causing product,
they have failed to state a cause of action upon which relief can be granted because recovery would
violate the Defendant’s federal and New York State constitutional rights, including, but not limited
to, its rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and
Sections 6 and 11 of Article I of the New York State Constitution.
SIXTEENTH AFFIRMATIVE DEFENSE
To the extent that plaintiffs rely upon any theory of breach of warranty, such claims are
barred for the lack of privity, for failure to give timely notice of an alleged breach of warranty, and
are barred by the Statute of Frauds.
SEVENTEENTH AFFIRMATIVE DEFENSE
To the extent that plaintiffs rely upon allegations of negligence, breach of warranty,
fraudulent representation and strict products liability as against the Defendant the complaint fails
to state a cause of action against the Defendant by reason of its failure to allege the freedom of
plaintiff from contributory negligence.
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EIGHTEENTH AFFIRMATIVE DEFENSE
All of the Defendant’s acts or omissions, if any, relative to its products at all times
conformed to the current state of the art or knowledge and to the trade customs and standards
existing and prevailing at the time in the industry which produced such products.
NINETEENTH AFFIRMATIVE DEFENSE
In the event that plaintiff used the products designated in the complaint, said products 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 complaint.
TWENTIETH AFFIRMATIVE DEFENSE
If punitive damages are claimed, the imposition of punitive damages on the facts alleged
in the complaint would violate the excessive fines, ex post facto, and due process clauses of the
Constitutions of the United States and the State of New York.
TWENTY-FIRST AFFIRMATIVE DEFENSE
If punitive damages are claimed, then to the extent that the Defendant is not accorded
procedural safeguards, including, but not limited to, protection against double jeopardy,
privilege against self-incrimination, proof beyond a reasonable doubt, the presumption of
innocence, and the right to the unanimous verdict of twelve jurors, the imposition of
punitive damages upon the facts alleged in the complaint would violate the Constitutions of the
United States and the State of New York.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Each item of economic loss alleged in the complaint was, or with reasonable certainty will
be, replaced or indemnified in whole or in part by collateral sources.
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TWENTY-THIRD AFFIRMATIVE DEFENSE
In the event that the Defendant is subject to any liability for injury or damages to plaintiffs
as alleged in the complaint, the other defendants named in the complaint are respectively liable for
equitable shares of the aggregate damages to plaintiffs in accordance with their relative culpability
for such damage, and the Defendant may not be held liable to contribute to plaintiffs any amount
greater than its equitable share of such aggregate damage.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Culpable conduct on the part of the plaintiff, including contributory negligence, assumption
of the risk, and willful, wanton and/or reckless conduct, caused or contributed to the plaintiff’s
damages, and accordingly, any verdict or judgment in favor of the plaintiffs is barred, or in the
alternative, must be reduced by that percentage of all of the culpable conduct which caused the
plaintiff’s damages as the trier of fact apportions to the plaintiffs.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
The liability of the answering Defendant, if any, to the plaintiffs, for non-economic loss
shall not exceed the equitable share of the Defendant, determined in accordance with the relative
culpability of each person causing or contributing to the total liability for non-economic loss of
the plaintiffs.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Whatever damages and injuries, if any, were sustained by the plaintiff herein, were
proximately caused by superseding and/or intervening causes and not by any act or omission of
the answering Defendant.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Whatever damages, if any, the plaintiff sustained as alleged in the complaint, if they were
not caused in whole or in part or contributed to by reason of plaintiff’s culpable conduct,
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were caused by reason of culpable conduct on the part of others to whom the plaintiffs have given
a release, and, accordingly, the answering Defendant is entitled to have the claim of the plaintiffs
herein, if any, reduced in accordance with Section 15-108 of the General Obligations Law.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
In the event that plaintiffs recover a verdict or judgment against the Defendant, then said
verdict or judgment must be reduced pursuant to CPLR Section 4545(c) by those amounts which
have been or will, with reasonable certainty, replace or indemnify plaintiffs in whole or in part, for
any past or future claimed economic loss, from any collateral source such as insurance,
social security, Workers’ Compensation or employee benefit programs.
TWENTY-NINTH AFFIRMATIVE DEFENSE
The answering Defendant denies that the plaintiff was ever exposed to a product sold,
manufactured, used or supplied by the answering Defendant which contained asbestos. However,
should the plaintiff submit evidence to the contrary, then the answering Defendant alleges that any
asbestos fibers in such product were entirely encapsulated and, therefore, such products did not
emit respirable asbestos fibers into the air. Therefore, such exposure could not have contributed
to plaintiff’s alleged injuries.
THIRTIETH AFFIRMATIVE DEFENSE
At all times during the conduct of its corporate operations, the agents, servants and
employees of the answering Defendant used proper methods in selecting, utilizing, manufacturing,
selling, distributing and/or designing products and/or equipment and in operating their premises
and facilities in conformity to the available knowledge and research of the scientific and
industrial communities, in compliance with the applicable state of the art during the time period
relevant to plaintiffs’ complaint.
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THIRTY-FIRST AFFIRMATIVE DEFENSE
If it should be proven at the time of trial that the plaintiff was exposed to asbestos
containing products alleged to have been in any way connected to the answering Defendant, which
is denied, then any such products were furnished or present in strict conformity to the conditions
specified or to the specifications furnished by the plaintiff’s employers or by the United States
government.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Products or materials manufactured, designed, sold, distributed, supplied and/or utilized by
the answering Defendant were accompanied by adequate warnings which were in conformity with
the existing state of the art in regard to the foreseeable use of said products or materials.
THIRTY-THIRD AFFIRMATIVE DEFENSE
The answering Defendant did not deal directly with any end-purchaser or user of any
product referred to in the plaintiffs’ complaint. The seller and/or purchaser of such a product
and/or plaintiff’s employers were in a better position to warn the plaintiff, if a warning was
required, and their failure to do so was a superseding cause of any injury to the plaintiff.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
At all times material herein, the state of the medical and industrial art was such that there
was no generally accepted or recognized knowledge of any unsafe, inherently dangerous or
hazardous character or nature of products containing asbestos when used in the manner and for the
purpose described by the plaintiff, and therefore, there was no duty for the answering Defendant
to know of any such character or nature or to warn the plaintiff or others similarly situated.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
The purchaser of the answering Defendant’s products and/or services and all third-party
beneficiaries of any warranties, express or implied, relating to the product or services failed to
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provide notice of the alleged breaches of warranty to the Defendant pursuant to the applicable
provision of the Uniform Commercial Code.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
The answering Defendant never made any warranties to the plaintiff upon which the
plaintiff relied.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
The plaintiff never purchased any asbestos containing products from the answering
Defendant, and, accordingly, the plaintiffs’ claims must fail for want of privity.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
The plaintiffs failed to timely assert any claim under UCC Section 2-725, and, accordingly,
any such claim is now time-barred.
THIRTY-NINTH AFFIRMATIVE DEFENSE
To the extent that plaintiff sustained injuries from the use of a product alleged to contain
asbestos, which is expressly denied, plaintiff, other Defendants or other parties not under the
control of the answering Defendant misused, modified, altered, abused, misapplied and otherwise
mishandled the product alleged to be asbestos material, and used said products without proper
safety protection which was available from the plaintiff’s employers. Therefore, the amount of
damages which may be recoverable must be diminished by the proportion which said misuse,
modification, alteration, abuse, misapplication, and mishandling bears to the conduct which caused
the alleged damage or injury.
FORTIETH AFFIRMATIVE DEFENSE
The plaintiff contributed to plaintiff’s illness by use of drugs, medication and
tobacco products.
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FORTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff had full knowledge of the risks and possible adverse effects pertaining to her use
of the product(s) described in the Verified Complaint, and all or part of the alleged losses and
damages, if any, sustained by Plaintiff around from and were caused by risks of which she was so
aware, and such risks were accepted and assumed by her, 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.
FORTY-SECOND AFFIRMATIVE DEFENSE
Whatever injuries and damages, if any, were sustained or incurred by the plaintiff were
caused by acts or omissions of third parties over whom the answering Defendant neither exercised
control nor had the right to control.
FORTY-THIRD AFFIRMATIVE DEFENSE
Inasmuch as plaintiffs are unable to identify the manufacturer of product(s) which allegedly
caused her injuries, plaintiffs’ claim for relief cannot be granted since the granting of such relief
in the absence of product identification would contravene the answering Defendant’s constitutional
right to procedural due process of law and equal protection, as preserved by the United States
Constitution and the Constitution of the State of New York, as well as contravene the Defendant’s
constitutional right to protection against the taking of private property for public use without just
compensation, as preserved by the United States Constitution and the
Constitution of the State of New York.
FORTY-FOURTH AFFIRMATIVE DEFENSE
The Order of the Bankruptcy Court, which prevents the answering Defendant from joining
indispensable parties who have declared bankruptcy, has the effect of requiring the Defendant to
defend this action without those other parties as co-Defendants and prevents the Court from being
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able to hear and adjudge all relevant evidence in regard to plaintiffs’ claims and therefore deny the
Defendant its constitutional right to due process under the Fourteenth Amendment.
FORTY-FIFTH AFFIRMATIVE DEFENSE
To the extent that plaintiff was exposed to any product containing asbestos as a result of
conduct by the answering Defendant, which is expressly denied, said exposure was de minimis and
not a substantial contributing factor to any asbestos-related disease which the plaintiff may have
developed, and is thus not actionable at law or in equity.
FORTY-SIXTH AFFIRMATIVE DEFENSE
Some or all causes of action alleged in the plaintiffs’ complaint may not be maintained
because of res judicata.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Some or all of the causes of action alleged in the plaintiffs’ complaint may not be
maintained because of collateral estoppel.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs may not pursue the claim for loss of consortium pursuant to
Consorti v. Owens-Corning, 86 N.Y.2d 449 (1995).
FORTY-NINTH AFFIRMATIVE DEFENSE
That whatever damages, if any, were sustained by the plaintiffs herein, if they were not
caused by reason of the negligence, carelessness, want of care and other culpable conduct on the
part of the plaintiff, were caused by culpable conduct, carelessness, recklessness, acts, omissions,
breaches of contract, breaches of statutory duties, breaches of warranty, strict liability, nuisance
and/or trespass on the part of other named Defendant, and, in the event the answering Defendant
is subject to any liability for any such injury or damages to the plaintiff as alleged in the complaint,
the other defendants named in the complaint are respectively liable for all of such damages or their
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apportioned and equitable shares of the aggregate damages to the plaintiffs, and the answering
Defendant is and shall be entitled to indemnification and/or contribution from and judgment over
against such other Defendant for all or any part of any verdict or judgment which may be recovered
by or on behalf of the plaintiffs as against the answering Defendant.
FIFTIETH AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to relief for insufficiency of service of process.
FIFTY-FIRST AFFIRMATIVE DEFENSE
This court lacks personal jurisdiction over Defendant for the causes of action alleged in
Plaintiffs’ Verified Complaint.
FIFTY-SECOND AFFIRMATIVE DEFENSE
Defendant alleges that venue is improper in this Court.
FIFTY-THIRD AFFIRMATIVE DEFENSE
Defendant did not design, manufacture, distribute, market, sell, install, remove, or service
the products to which plaintiff alleges exposure and Defendant did not own, operate, manage,
supervise, or otherwise control any of the premises where plaintiff alleges exposure. Other parties,
non-parties, persons, or entities, and not Defendant, are solely liable for all products, premises,
services, conduct, actions, or inactions relating to plaintiff’s alleged exposures for which
Defendant has been sued. Defendant is not a successor-in-interest to, nor has it assumed by any
other means or in any other manner, the debts, duties, liabilities, or obligations of any such parties,
non-parties, persons, or entities. Plaintiffs’ claims against Defendant are barred by, among other
things, the successor corporate non-liability doctrine and all other applicable laws, statutes,
regulations, and doctrines whether under the laws of the state of Delaware or another state.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
Defendant denies the concept of strict liability applies to this litigation.
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FIFTY-FIFTH AFFIRMATIVE DEFENSE
Defendants denies that any product it manufactured or sold was defective or unreasonably
dangerous.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
The answering Defendant reserves the right to amend its answer and adopt additional
defenses which have been or will be served by other defendants. In addition, the answering
Defendant will rely upon further defenses which become available or appear during
discovery proceedings in the actions and hereby specifically reserves the right to amend the answer
for the purposes of asserting any such additional defenses.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
The amount of damages recoverable by plaintiffs, if any, must be reduced by reason of her
exposure to asbestos through means other than talc products.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiff’s medical condition was caused by her work conditions.
FIFTY-NINTH AFFIRMATIVE DEFENSE
Market Share liability is not proper or appropriate in New York state actions.
SIXTIETH AFFIRMATIVE DEFENSE
Defendant was merely an innocent seller under New York law.
CROSS-CLAIM FOR CONTRIBUTION
Defendant hereby makes claim for contribution against each and every defendant.
CROSS-CLAIM FOR INDEMNIFICATION
While denying liability to Plaintiffs as well as the damages and injuries alleged, if this
Defendant is found liable to the Plaintiffs for damages by reason of the alleged acts complained
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of, this Defendant’s alleged negligence was merely constructive, technical and passive or vicarious
and Plaintiffs’ damages and injuries around with direct and primary negligence, strict liability,
breach of contract and implied warranties of the said co-defendants listed in this action.
WHEREFORE, this answering defendant, Beacon CMP Corp., demands judgment
dismissing the Plaintiffs’ Verified Complaint herein as against this answering defendant, together
with the costs and disbursements of this action, and further demands that in the event the Plaintiffs
obtain judgment as against this answering defendant, then this answering defendant shall be
indemnified by and have judgment over and against other named defendants for all of such
judgment or any part thereof as is deemed by the trier of fact in accordance with the relative
culpability of such liability among the other named defendants, together with the costs and
disbursements of this action.
DATED: New York, New York
February 9, 2023
By:
Jason M. Saul
Charles E. Sheehan
CETRULO LLP
Attorneys for Defendant
Beacon CMP Corp.
52 Duane Street, 7th Floor
New York, New York 10007
(t) 617 217 5500 | (f) 617 217 5200
jsaul@cetllp.com
csheehan@cetllp.com
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) SS:
COUNTY OF MONROE )
JASON M. SAUL, ESQ., being duly sworn, deposes and says that I am an attorney with the
law firm of CETRULO LLP, I am the attorney of record for the Defendant, Beacon CMP Corp.,
that I have read the foregoing Verified Answer by Beacon CMP Corp., to Plaintiffs’ Verified
Complaint and know the contents thereof, and that the same is true to my own knowledge except
as to matters therein stated to be alleged upon information and belief, and that as to those matters,
I believe them to be true. Deponent further states that the reason this verification is made by
deponent and not by Defendant Beacon CMP Corp. is that the Defendant Beacon CMP Corp.’s
offices are not located in the county and/or does not reside in the county at which deponent’s
offices are located.
DATED: New York, New York
February 9, 2023
__________________
Jason M. Saul
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 9th day of February, 2023, a copy of the foregoing
Verified Answer by Beacon CMP Corp., to Plaintiffs’ Verified Complaint was filed electronically
this day and is available for viewing from the Court’s ECF system.
Notice of this filing will be sent to all counsel of record via the Court’s ECF system.
____________________________
Jason M. Saul
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FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITIGATION DAN ALBASRY, as Trustee of the Estate of NEWAL AL SAAD, and FIRAS MOHAMMAD, Plaintiffs, Index No. 190002/2023 v. BARRETTS MINERALS INC., et al., DEFENDANT BEACON CMP CORP.’S Defendants. VERIFIED ANSWER TO PLAINTIFFS’ VERIFIED COMPLAINT Defendant Beacon CMP Corp. (“Defendant” or “Beacon CMP”), by and through its attorneys, CETRULO LLP, hereby acknowledges receipt of a Summons and Verified Complaint dated January 5, 2023, which according to Plaintiffs’ Affirmation of Service was served upon Defendant on or about January 10, 2023. THE PARTIES 1-5. Defendant is without information or knowledge sufficient to admit or deny the truth of the allegations contained in paragraphs 1-5. 6. Defendant answers paragraph 6 only to the extent that this paragraph pertains to Beacon CMP. Accordingly, Defendant is without information or knowledge sufficient to admit or deny to the truth of the allegations contained in paragraph 6, and therefore denies the same. 7. Defendant states that it is a corporation organized and existing under the laws of the state of New Jersey. Defendant denies all other allegations contained in paragraph 7. 8-21. Defendant answers paragraphs 8-21 only to the extent that these paragraphs pertain to Beacon CMP. Accordingly, Defendant is without information or knowledge sufficient to admit or deny to the truth of the allegations contained in paragraphs 8-21, and therefore denies the same. 22-25. Defendant answers paragraphs 22-25 only to the extent that these paragraphs pertain to Beacon CMP. Accordingly, Defendant is without information or knowledge sufficient 1 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 to admit or deny to the truth of the allegations contained in paragraphs 22-25, and therefore denies the same. Defendant herein repeats, reiterates, and realleges each and every answer to Paragraphs 1-25 of the Plaintiffs’ Verified Complaint as if set forth in full herein. Defendant is without information or knowledge sufficient to admit or deny the truth of the allegations contained in NYCAL – THE LANIER LAW FIRM PLLC VERIFIED COMPLAINT and therefore denies the same. FIRST CAUSE OF ACTION 26. As to paragraph 26, Beacon CMP repeats each and every response to paragraphs 1-25 as if same were set forth herein verbatim. 27-42. Beacon CMP denies each and every allegation contained in paragraphs 27-42. SECOND CAUSE OF ACTION 43. As to paragraph 43, Beacon CMP repeats each and every response to paragraphs 1-42 as if same were set forth herein verbatim. 44-49. Beacon CMP denies each and every allegation contained in paragraphs 44-49. THIRD CAUSE OF ACTION 50. As to paragraph 50, Beacon CMP repeats each and every response to paragraphs 1-49 as if same were set forth herein verbatim. 51-59. Beacon CMP denies each and every allegation contained in paragraphs 51-59. FOURTH CAUSE OF ACTION 60. As to paragraph 60, Beacon CMP repeats each and every response to paragraphs 1-59 as if same were set forth herein verbatim. 2 2 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 61-67. Beacon CMP denies each and every allegation contained in paragraphs 61-67. FIFTH CAUSE OF ACTION 68. As to paragraph 68, Beacon CMP repeats each and every response to paragraphs 1-67 as if same were set forth herein verbatim. 69-75. Beacon CMP denies each and every allegation contained in paragraphs 69-75. SIXTH CAUSE OF ACTION 76. As to paragraph 76, Beacon CMP repeats each and every response to paragraphs 1-75 as if same were set forth herein verbatim. 77-93. Beacon CMP denies each and every allegation contained in paragraphs 77-93. SEVENTH CAUSE OF ACTION 94. As to paragraph 94, Beacon CMP repeats each and every response to paragraphs 1-93 as if same were set forth herein verbatim. 95-100. Beacon CMP denies each and every allegation contained in paragraphs 95-100. EIGHTH CAUSE OF ACTION 101. As to paragraph 101, Beacon CMP repeats each and every response to paragraphs 1-100 as if same were set forth herein verbatim. 102-162. Beacon CMP denies each and every allegation contained in paragraphs 102-162. NINTH CAUSE OF ACTION 163. As to paragraph 163, Beacon CMP repeats each and every response to paragraphs 1-162 as if same were set forth herein verbatim. 164. Beacon CMP denies each and every allegation contained in paragraph 164. 3 3 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 TENTH CAUSE OF ACTION 165. As to paragraph 165, Beacon CMP repeats each and every response to paragraphs 1-164 as if same were set forth herein verbatim. 166. Beacon CMP denies each and every allegation contained in paragraph 166. ELEVENTH CAUSE OF ACTION 167. As to paragraph 222, Beacon CMP repeats each and every response to paragraphs 1-166 as if same were set forth herein verbatim. 168. Beacon CMP denies each and every allegation contained in paragraph 168. AND AS FOR ITS RESPONSE TO ANY CROSS-CLAIMS Beacon CMP denies any and all cross-claims now or hereafter made or asserted against Beacon CMP. Beacon CMP asserts all defenses including those set forth above and below; and asserts that it is not liable to Plaintiffs, to any defendant, to any third-party defendant, or to any other party. AND AS FOR ITS RESPONSE FOR INDEMNIFICATION If Beacon CMP is found liable to Plaintiffs its liability will be secondary to that of its co- defendants and as such Beacon CMP demands judgment against co-defendants for indemnification in full together with attorney’s fees and costs of defense. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE This defendant never sold talc containing asbestos. SECOND AFFIRMATIVE DEFENSE Plaintiffs’ claims against this defendant are barred by the applicable statute of limitations. 4 4 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 THIRD AFFIRMATIVE DEFENSE Plaintiff’s medical condition was caused by factors other than exposure to talc products. FOURTH AFFIRMATIVE DEFENSE The complaint fails to state a cause of action upon which relief can be granted as a matter of law against the Defendant. FIFTH AFFIRMATIVE DEFENSE The complaint fails to name indispensable parties. SIXTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of this action. SEVENTH AFFIRMATIVE DEFENSE Each claim of plaintiffs is barred as to the Defendant because the action was not commenced within the statutory limitation period applicable thereto. EIGHTH AFFIRMATIVE DEFENSE The within action is barred by the doctrines of waiver and laches. NINTH AFFIRMATIVE DEFENSE Each alleged injury and damage of plaintiff resulted from or was proximately caused by risks assumed by plaintiff in the course of plaintiff’s employment and other activities. TENTH AFFIRMATIVE DEFENSE Each alleged injury and damage of plaintiff resulted from and was proximately caused by the contributory negligence and culpable conduct attributable to plaintiff. ELEVENTH AFFIRMATIVE DEFENSE Any alleged injury and damage sustained by plaintiff was worsened by the failure of plaintiff to act to mitigate such damage and injury. 5 5 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 TWELFTH AFFIRMATIVE DEFENSE Each alleged injury and damage of plaintiff resulted from and was proximately caused by the negligence of persons other than the Defendant. THIRTEENTH AFFIRMATIVE DEFENSE Defendant did not engage in any negligent act or omission, any intentional or malicious act, any fraud, or take part in any conspiracy. FOURTEENTH AFFIRMATIVE DEFENSE Article 16 of the CPLR is applicable hereto and Defendant’s liability is limited pursuant to CPLR 1601. FIFTEENTH AFFIRMATIVE DEFENSE If plaintiffs are unable to identify the manufacturer of the alleged injury-causing product, they have failed to state a cause of action upon which relief can be granted because recovery would violate the Defendant’s federal and New York State constitutional rights, including, but not limited to, its rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and Sections 6 and 11 of Article I of the New York State Constitution. SIXTEENTH AFFIRMATIVE DEFENSE To the extent that plaintiffs rely upon any theory of breach of warranty, such claims are barred for the lack of privity, for failure to give timely notice of an alleged breach of warranty, and are barred by the Statute of Frauds. SEVENTEENTH AFFIRMATIVE DEFENSE To the extent that plaintiffs rely upon allegations of negligence, breach of warranty, fraudulent representation and strict products liability as against the Defendant the complaint fails to state a cause of action against the Defendant by reason of its failure to allege the freedom of plaintiff from contributory negligence. 6 6 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 EIGHTEENTH AFFIRMATIVE DEFENSE All of the Defendant’s acts or omissions, if any, relative to its products at all times conformed to the current state of the art or knowledge and to the trade customs and standards existing and prevailing at the time in the industry which produced such products. NINETEENTH AFFIRMATIVE DEFENSE In the event that plaintiff used the products designated in the complaint, said products 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 complaint. TWENTIETH AFFIRMATIVE DEFENSE If punitive damages are claimed, the imposition of punitive damages on the facts alleged in the complaint would violate the excessive fines, ex post facto, and due process clauses of the Constitutions of the United States and the State of New York. TWENTY-FIRST AFFIRMATIVE DEFENSE If punitive damages are claimed, then to the extent that the Defendant is not accorded procedural safeguards, including, but not limited to, protection against double jeopardy, privilege against self-incrimination, proof beyond a reasonable doubt, the presumption of innocence, and the right to the unanimous verdict of twelve jurors, the imposition of punitive damages upon the facts alleged in the complaint would violate the Constitutions of the United States and the State of New York. TWENTY-SECOND AFFIRMATIVE DEFENSE Each item of economic loss alleged in the complaint was, or with reasonable certainty will be, replaced or indemnified in whole or in part by collateral sources. 7 7 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 TWENTY-THIRD AFFIRMATIVE DEFENSE In the event that the Defendant is subject to any liability for injury or damages to plaintiffs as alleged in the complaint, the other defendants named in the complaint are respectively liable for equitable shares of the aggregate damages to plaintiffs in accordance with their relative culpability for such damage, and the Defendant may not be held liable to contribute to plaintiffs any amount greater than its equitable share of such aggregate damage. TWENTY-FOURTH AFFIRMATIVE DEFENSE Culpable conduct on the part of the plaintiff, including contributory negligence, assumption of the risk, and willful, wanton and/or reckless conduct, caused or contributed to the plaintiff’s damages, and accordingly, any verdict or judgment in favor of the plaintiffs is barred, or in the alternative, must be reduced by that percentage of all of the culpable conduct which caused the plaintiff’s damages as the trier of fact apportions to the plaintiffs. TWENTY-FIFTH AFFIRMATIVE DEFENSE The liability of the answering Defendant, if any, to the plaintiffs, for non-economic loss shall not exceed the equitable share of the Defendant, determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss of the plaintiffs. TWENTY-SIXTH AFFIRMATIVE DEFENSE Whatever damages and injuries, if any, were sustained by the plaintiff herein, were proximately caused by superseding and/or intervening causes and not by any act or omission of the answering Defendant. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Whatever damages, if any, the plaintiff sustained as alleged in the complaint, if they were not caused in whole or in part or contributed to by reason of plaintiff’s culpable conduct, 8 8 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 were caused by reason of culpable conduct on the part of others to whom the plaintiffs have given a release, and, accordingly, the answering Defendant is entitled to have the claim of the plaintiffs herein, if any, reduced in accordance with Section 15-108 of the General Obligations Law. TWENTY-EIGHTH AFFIRMATIVE DEFENSE In the event that plaintiffs recover a verdict or judgment against the Defendant, then said verdict or judgment must be reduced pursuant to CPLR Section 4545(c) by those amounts which have been or will, with reasonable certainty, replace or indemnify plaintiffs in whole or in part, for any past or future claimed economic loss, from any collateral source such as insurance, social security, Workers’ Compensation or employee benefit programs. TWENTY-NINTH AFFIRMATIVE DEFENSE The answering Defendant denies that the plaintiff was ever exposed to a product sold, manufactured, used or supplied by the answering Defendant which contained asbestos. However, should the plaintiff submit evidence to the contrary, then the answering Defendant alleges that any asbestos fibers in such product were entirely encapsulated and, therefore, such products did not emit respirable asbestos fibers into the air. Therefore, such exposure could not have contributed to plaintiff’s alleged injuries. THIRTIETH AFFIRMATIVE DEFENSE At all times during the conduct of its corporate operations, the agents, servants and employees of the answering Defendant used proper methods in selecting, utilizing, manufacturing, selling, distributing and/or designing products and/or equipment and in operating their premises and facilities in conformity to the available knowledge and research of the scientific and industrial communities, in compliance with the applicable state of the art during the time period relevant to plaintiffs’ complaint. 9 9 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 THIRTY-FIRST AFFIRMATIVE DEFENSE If it should be proven at the time of trial that the plaintiff was exposed to asbestos containing products alleged to have been in any way connected to the answering Defendant, which is denied, then any such products were furnished or present in strict conformity to the conditions specified or to the specifications furnished by the plaintiff’s employers or by the United States government. THIRTY-SECOND AFFIRMATIVE DEFENSE Products or materials manufactured, designed, sold, distributed, supplied and/or utilized by the answering Defendant were accompanied by adequate warnings which were in conformity with the existing state of the art in regard to the foreseeable use of said products or materials. THIRTY-THIRD AFFIRMATIVE DEFENSE The answering Defendant did not deal directly with any end-purchaser or user of any product referred to in the plaintiffs’ complaint. The seller and/or purchaser of such a product and/or plaintiff’s employers were in a better position to warn the plaintiff, if a warning was required, and their failure to do so was a superseding cause of any injury to the plaintiff. THIRTY-FOURTH AFFIRMATIVE DEFENSE At all times material herein, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unsafe, inherently dangerous or hazardous character or nature of products containing asbestos when used in the manner and for the purpose described by the plaintiff, and therefore, there was no duty for the answering Defendant to know of any such character or nature or to warn the plaintiff or others similarly situated. THIRTY-FIFTH AFFIRMATIVE DEFENSE The purchaser of the answering Defendant’s products and/or services and all third-party beneficiaries of any warranties, express or implied, relating to the product or services failed to 10 10 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 provide notice of the alleged breaches of warranty to the Defendant pursuant to the applicable provision of the Uniform Commercial Code. THIRTY-SIXTH AFFIRMATIVE DEFENSE The answering Defendant never made any warranties to the plaintiff upon which the plaintiff relied. THIRTY-SEVENTH AFFIRMATIVE DEFENSE The plaintiff never purchased any asbestos containing products from the answering Defendant, and, accordingly, the plaintiffs’ claims must fail for want of privity. THIRTY-EIGHTH AFFIRMATIVE DEFENSE The plaintiffs failed to timely assert any claim under UCC Section 2-725, and, accordingly, any such claim is now time-barred. THIRTY-NINTH AFFIRMATIVE DEFENSE To the extent that plaintiff sustained injuries from the use of a product alleged to contain asbestos, which is expressly denied, plaintiff, other Defendants or other parties not under the control of the answering Defendant misused, modified, altered, abused, misapplied and otherwise mishandled the product alleged to be asbestos material, and used said products without proper safety protection which was available from the plaintiff’s employers. Therefore, the amount of damages which may be recoverable must be diminished by the proportion which said misuse, modification, alteration, abuse, misapplication, and mishandling bears to the conduct which caused the alleged damage or injury. FORTIETH AFFIRMATIVE DEFENSE The plaintiff contributed to plaintiff’s illness by use of drugs, medication and tobacco products. 11 11 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 FORTY-FIRST AFFIRMATIVE DEFENSE Plaintiff had full knowledge of the risks and possible adverse effects pertaining to her use of the product(s) described in the Verified Complaint, and all or part of the alleged losses and damages, if any, sustained by Plaintiff around from and were caused by risks of which she was so aware, and such risks were accepted and assumed by her, 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. FORTY-SECOND AFFIRMATIVE DEFENSE Whatever injuries and damages, if any, were sustained or incurred by the plaintiff were caused by acts or omissions of third parties over whom the answering Defendant neither exercised control nor had the right to control. FORTY-THIRD AFFIRMATIVE DEFENSE Inasmuch as plaintiffs are unable to identify the manufacturer of product(s) which allegedly caused her injuries, plaintiffs’ claim for relief cannot be granted since the granting of such relief in the absence of product identification would contravene the answering Defendant’s constitutional right to procedural due process of law and equal protection, as preserved by the United States Constitution and the Constitution of the State of New York, as well as contravene the Defendant’s constitutional right to protection against the taking of private property for public use without just compensation, as preserved by the United States Constitution and the Constitution of the State of New York. FORTY-FOURTH AFFIRMATIVE DEFENSE The Order of the Bankruptcy Court, which prevents the answering Defendant from joining indispensable parties who have declared bankruptcy, has the effect of requiring the Defendant to defend this action without those other parties as co-Defendants and prevents the Court from being 12 12 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 able to hear and adjudge all relevant evidence in regard to plaintiffs’ claims and therefore deny the Defendant its constitutional right to due process under the Fourteenth Amendment. FORTY-FIFTH AFFIRMATIVE DEFENSE To the extent that plaintiff was exposed to any product containing asbestos as a result of conduct by the answering Defendant, which is expressly denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which the plaintiff may have developed, and is thus not actionable at law or in equity. FORTY-SIXTH AFFIRMATIVE DEFENSE Some or all causes of action alleged in the plaintiffs’ complaint may not be maintained because of res judicata. FORTY-SEVENTH AFFIRMATIVE DEFENSE Some or all of the causes of action alleged in the plaintiffs’ complaint may not be maintained because of collateral estoppel. FORTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs may not pursue the claim for loss of consortium pursuant to Consorti v. Owens-Corning, 86 N.Y.2d 449 (1995). FORTY-NINTH AFFIRMATIVE DEFENSE That whatever damages, if any, were sustained by the plaintiffs herein, if they were not caused by reason of the negligence, carelessness, want of care and other culpable conduct on the part of the plaintiff, were caused by culpable conduct, carelessness, recklessness, acts, omissions, breaches of contract, breaches of statutory duties, breaches of warranty, strict liability, nuisance and/or trespass on the part of other named Defendant, and, in the event the answering Defendant is subject to any liability for any such injury or damages to the plaintiff as alleged in the complaint, the other defendants named in the complaint are respectively liable for all of such damages or their 13 13 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 apportioned and equitable shares of the aggregate damages to the plaintiffs, and the answering Defendant is and shall be entitled to indemnification and/or contribution from and judgment over against such other Defendant for all or any part of any verdict or judgment which may be recovered by or on behalf of the plaintiffs as against the answering Defendant. FIFTIETH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to relief for insufficiency of service of process. FIFTY-FIRST AFFIRMATIVE DEFENSE This court lacks personal jurisdiction over Defendant for the causes of action alleged in Plaintiffs’ Verified Complaint. FIFTY-SECOND AFFIRMATIVE DEFENSE Defendant alleges that venue is improper in this Court. FIFTY-THIRD AFFIRMATIVE DEFENSE Defendant did not design, manufacture, distribute, market, sell, install, remove, or service the products to which plaintiff alleges exposure and Defendant did not own, operate, manage, supervise, or otherwise control any of the premises where plaintiff alleges exposure. Other parties, non-parties, persons, or entities, and not Defendant, are solely liable for all products, premises, services, conduct, actions, or inactions relating to plaintiff’s alleged exposures for which Defendant has been sued. Defendant is not a successor-in-interest to, nor has it assumed by any other means or in any other manner, the debts, duties, liabilities, or obligations of any such parties, non-parties, persons, or entities. Plaintiffs’ claims against Defendant are barred by, among other things, the successor corporate non-liability doctrine and all other applicable laws, statutes, regulations, and doctrines whether under the laws of the state of Delaware or another state. FIFTY-FOURTH AFFIRMATIVE DEFENSE Defendant denies the concept of strict liability applies to this litigation. 14 14 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 FIFTY-FIFTH AFFIRMATIVE DEFENSE Defendants denies that any product it manufactured or sold was defective or unreasonably dangerous. FIFTY-SIXTH AFFIRMATIVE DEFENSE The answering Defendant reserves the right to amend its answer and adopt additional defenses which have been or will be served by other defendants. In addition, the answering Defendant will rely upon further defenses which become available or appear during discovery proceedings in the actions and hereby specifically reserves the right to amend the answer for the purposes of asserting any such additional defenses. FIFTY-SEVENTH AFFIRMATIVE DEFENSE The amount of damages recoverable by plaintiffs, if any, must be reduced by reason of her exposure to asbestos through means other than talc products. FIFTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiff’s medical condition was caused by her work conditions. FIFTY-NINTH AFFIRMATIVE DEFENSE Market Share liability is not proper or appropriate in New York state actions. SIXTIETH AFFIRMATIVE DEFENSE Defendant was merely an innocent seller under New York law. CROSS-CLAIM FOR CONTRIBUTION Defendant hereby makes claim for contribution against each and every defendant. CROSS-CLAIM FOR INDEMNIFICATION While denying liability to Plaintiffs as well as the damages and injuries alleged, if this Defendant is found liable to the Plaintiffs for damages by reason of the alleged acts complained 15 15 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 of, this Defendant’s alleged negligence was merely constructive, technical and passive or vicarious and Plaintiffs’ damages and injuries around with direct and primary negligence, strict liability, breach of contract and implied warranties of the said co-defendants listed in this action. WHEREFORE, this answering defendant, Beacon CMP Corp., demands judgment dismissing the Plaintiffs’ Verified Complaint herein as against this answering defendant, together with the costs and disbursements of this action, and further demands that in the event the Plaintiffs obtain judgment as against this answering defendant, then this answering defendant shall be indemnified by and have judgment over and against other named defendants for all of such judgment or any part thereof as is deemed by the trier of fact in accordance with the relative culpability of such liability among the other named defendants, together with the costs and disbursements of this action. DATED: New York, New York February 9, 2023 By: Jason M. Saul Charles E. Sheehan CETRULO LLP Attorneys for Defendant Beacon CMP Corp. 52 Duane Street, 7th Floor New York, New York 10007 (t) 617 217 5500 | (f) 617 217 5200 jsaul@cetllp.com csheehan@cetllp.com 16 16 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) SS: COUNTY OF MONROE ) JASON M. SAUL, ESQ., being duly sworn, deposes and says that I am an attorney with the law firm of CETRULO LLP, I am the attorney of record for the Defendant, Beacon CMP Corp., that I have read the foregoing Verified Answer by Beacon CMP Corp., to Plaintiffs’ Verified Complaint and know the contents thereof, and that the same is true to my own knowledge except as to matters therein stated to be alleged upon information and belief, and that as to those matters, I believe them to be true. Deponent further states that the reason this verification is made by deponent and not by Defendant Beacon CMP Corp. is that the Defendant Beacon CMP Corp.’s offices are not located in the county and/or does not reside in the county at which deponent’s offices are located. DATED: New York, New York February 9, 2023 __________________ Jason M. Saul 17 17 of 18 FILED: NEW YORK COUNTY CLERK 02/09/2023 05:38 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/09/2023 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 9th day of February, 2023, a copy of the foregoing Verified Answer by Beacon CMP Corp., to Plaintiffs’ Verified Complaint was filed electronically this day and is available for viewing from the Court’s ECF system. Notice of this filing will be sent to all counsel of record via the Court’s ECF system. ____________________________ Jason M. Saul 18 27749855v1 18 of 18