Preview
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------X
DAN ALBASRY, as Trustee of the Estate of NEWAL AL
SAAD, and FIRAS MOHAMMAD,
Plaintiffs, Index No.: 190002/2023
-against- VERIFIED ANSWER
BARRETTS MINERALS INC., et al.,
Defendants.
------------------------------------------------------------------------X
BARRETTS MINERALS INC., (hereinafter referred to as “BMI”), by and through its
counsel, RENZULLI LAW FIRM, LLP, as and for its Answer to Plaintiffs’ Summons and Verified
Complaint (hereinafter referred to as “Complaint”) states upon information and belief as follows:
1. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “1” through “25” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “1” through “25” of the
Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
2. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “25” with the same force and effect as if more fully set forth herein in response to
the allegations contained in the Paragraph designated as “26” of the Complaint.
3. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “27” through “42” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “27” through “42” of the
1 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
4. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “42” with the same force and effect as if more fully set forth herein in response to
the allegations contained in the Paragraph designated as “43” of the Complaint.
5. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “44” through “49” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “44” through “49” of the
Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
6. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “49” with the same force and effect as if more fully set forth herein in response to
the allegations contained in the Paragraph designated as “50” of the Complaint.
7. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “51” through “59” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “51” through “59” of the
Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
2 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION
8. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “59” with the same force and effect as if more fully set forth herein in response to
the allegations contained in the Paragraph designated as “60” of the Complaint.
9. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “61” through “67” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “61” through “67” of the
Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION
10. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “67” with the same force and effect as if more fully set forth herein in response to
the allegations contained in the Paragraph designated as “68” of the Complaint.
11. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “69” through “75” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “69” through “75” of the
Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION
12. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “75” with the same force and effect as if more fully set forth herein in response to
the allegations contained in the Paragraph designated as “76” of the Complaint.
3 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
13. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “77” through “93” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “77” through “93” of the
Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
AS AND FOR AN ANSWER TO THE SEVENTH CAUSE OF ACTION
14. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “93” with the same force and effect as if more fully set forth herein in response to
the allegations contained in the Paragraph designated as “94” of the Complaint.
15. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “95” through “100” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “95” through “100” and of
the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
AS AND FOR AN ANSWER TO THE EIGHTH CAUSE OF ACTION
16. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “100” with the same force and effect as if more fully set forth herein in response
to the allegations contained in the Paragraph designated as “101” of the Complaint.
17. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraphs “102” through “162” of the Complaint with respect to
defendants other than BMI. Insofar as the allegations in Paragraphs “102” through “162” of the
Complaint are directed to BMI, they are denied and BMI refers all questions of law to this
Honorable Court.
4 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
AS AND FOR AN ANSWER TO THE NINTH CAUSE OF ACTION
18. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “162” with the same force and effect as if more fully set forth herein in response
to the allegations contained in the Paragraph designated as “163” of the Complaint.
19. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraph “164” of the Complaint with respect to defendants other
than BMI. Insofar as the allegations in Paragraph “164” of the Complaint are directed to BMI,
they are denied and BMI refers all questions of law to this Honorable Court.
AS AND FOR AN ANSWER TO THE TENTH CAUSE OF ACTION
20. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “164” with the same force and effect as if more fully set forth herein in response
to the allegations contained in the Paragraph designated as “165” of the Complaint.
21. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraph “166” and all unnumbered Paragraphs of the Complaint
with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “166” and all
unnumbered Paragraphs of the Complaint are directed to BMI, they are denied and BMI refers all
questions of law to this Honorable Court.
AS AND FOR AN ANSWER TO THE ELEVENTH CAUSE OF ACTION
22. BMI repeats and realleges each and every response to the Paragraphs designated
as “1” through “166” with the same force and effect as if more fully set forth herein in response
to the allegations contained in the Paragraph designated as “167” of the Complaint.
23. BMI denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraph “168” and all unnumbered Paragraphs of the Complaint
5 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “168” and all
unnumbered Paragraphs of the Complaint are directed to BMI, they are denied and BMI refers all
questions of law to this Honorable Court.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Each and every Count of Plaintiff’s Complaint fails to state a claim against BMI upon
which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
The claims are barred by the applicable statute of limitations.
THIRD AFFIRMATIVE DEFENSE
The Court lacks personal jurisdiction over BMI, or over each and every count asserted
against BMI in Plaintiff’s Complaint.
FOURTH AFFIRMATIVE DEFENSE
The injuries and/or illnesses, if any, sustained by plaintiff were caused or contributed to by
the fault, negligence and want of care on the part of plaintiff or on the part of others for whose acts
or omission or breach of legal duty BMI is not liable.
FIFTH AFFIRMATIVE DEFENSE
To the extent that plaintiff failed and neglected to maintain this action in a swift, diligent
and/or timely fashion, Plaintiff’s claims against BMI are barred by laches.
SIXTH AFFIRMATIVE DEFENSE
The injuries and/or illnesses of the plaintiff, if any, arose in whole or in part, out of the
risks, hazards and dangers incident to the occupations of plaintiff, all of which were open, obvious
and well known to the plaintiff, and any claims against BMI are therefore barred.
6 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
SEVENTH AFFIRMATIVE DEFENSE
To the extent that the injuries and/or illnesses of plaintiff, if any, were caused or contributed
to, in whole or in part, by intervening and superseding causative factors, the claims against BMI
are barred.
EIGHTH AFFIRMATIVE DEFENSE
To the extent that any of the alleged products were modified, altered, or in any way
materially varied, which may be causally related to the claims of plaintiff, Plaintiff’s claims against
BMI are barred.
NINTH AFFIRMATIVE DEFENSE
At all times material hereto, the state of the medical and industrial art was such that there
was no generally accepted or recognized knowledge of any unavoidable, unsafe, inherently
dangerous, or hazardous character or nature of asbestos-containing material, the existence of any
such asbestos containing product manufactured, sold, or distributed by BMI being expressly
denied, when used in the manner and purpose allegedly described by the plaintiff and, therefore,
there was no duty on the part of BMI to know of any such character or nature or to warn or protect
plaintiff or others similarly situated.
TENTH AFFIRMATIVE DEFENSE
To the extent that plaintiff sustained the alleged injuries and/or illnesses through any
careless, recklessness, acts, omissions, negligence and/or breach of duty and/or warranty and/or
contract of BMI, Plaintiff’s claims are barred by the exclusivity of Plaintiff’s workers
compensation remedy.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by reason of the Statute of Frauds.
7 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
TWELFTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by reason of the doctrine waiver.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by reason of the doctrine of estoppel.
FOURTEENTH AFFIRMATIVE DEFENSE
To the extent that plaintiff relies on New York Law L. 1986 C. 682 Section 4 as grounds
for maintaining this action, said section is unconstitutional and this action is time barred.
FIFTEENTH AFFIRMATIVE DEFENSE
Insofar as the claims herein are premised on Plaintiff’s claims accruing on or after
September 1, 1975 to recover damages attributable to personal injuries or for indemnification of
such damages, the amount of damages recoverable thereon must be diminished by reason of the
culpable conduct attributable to plaintiff and/or the other defendants herein, including their
comparative negligence and assumption of risk, in the proportion which the culpable conduct
attributable to plaintiff bears to the culpable conduct which caused the damages.
SIXTEENTH AFFIRMATIVE DEFENSE
This action does not fall within any exception enumerated in N.Y. C.P.L.R. Article 16, and,
if liability of this defendant is found to be 50% or less of the total liability assigned to all persons,
the liability of this defendant shall not exceed this defendant’s equitable share determined in
accordance with the relative culpability of each person contributing to the total liability for non-
economic loss.
SEVENTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred because of Plaintiff’s failure to join necessary and
indispensable parties.
8 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
EIGHTEENTH AFFIRMATIVE DEFENSE
BMI is not a party and/or real party in interest in connection with the claims asserted by
plaintiff.
NINETEENTH AFFIRMATIVE DEFENSE
Plaintiff may not bring this action as plaintiff has failed to exhaust all administrative
remedies.
TWENTIETH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities
alleged in the Complaint.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff contributed to the illnesses, either in whole or in part, by the use of tobacco
products and/or other substances, products, medication or drugs.
TWENTY-SECOND AFFIRMATIVE DEFENSE
At all times relevant to this litigation, the agents, servants and/or employees of BMI used
proper methods in handling the products complained of and conducting its operations, in
conformity with available knowledge, state of the art, and research of the scientific and industrial
communities.
TWENTY-THIRD AFFIRMATIVE DEFENSE
The damages allegedly sustained by the plaintiff were caused, in whole or in part, through
the operation of nature.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
To the extent that the plaintiff was exposed to any asbestos product as a result of conduct
by BMI, which is denied, said exposure was de minimis and not a substantial contributing factor
9 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
to any asbestos-related disease which such plaintiff may have developed, thus requiring dismissal
of the claims against BMI.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Insofar as the Complaint seeks exemplary and/or punitive damages, each such claim is
barred by the due process clauses of the Fourteenth Amendment of the United States Constitution
and the New York State Constitution; by prescription of the Eighth Amendment of the United
States Constitution, as applied to the states through the Fourteenth Amendment and Article I,
Section 5 of the New York State Constitution prohibiting the imposition of excess fines; and by
the double jeopardy clause of the Fifth Amendment of the United States Constitution, as applied
to the states through the Fourteenth Amendment, and Article I, Section 6 of the New York State
Constitution.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
All defenses which have been or will be asserted by other defendants in this action are
adopted and incorporated by reference as if fully set forth at length herein as defenses to the
Complaint. In addition, BMI will rely upon any and all other further defenses which become
available or appear during discovery proceedings in this action and hereby respectfully reserves
the right to amend its answer for the purposes of asserting any such additional defenses.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
If the plaintiff sustained damages as alleged, such damages occurred while he/she was
engaged in activities into which he/she entered, knowing the hazard, risk and danger of the
activities, and he/she assumed the risks incidental and attended thereto.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
No acts or omissions of BMI proximately caused any damages.
10 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
TWENTY-NINTH AFFIRMATIVE DEFENSE
Any asbestos-containing product, the existence of any such asbestos containing product
manufactured, sold, or distributed by BMI being expressly denied, that may have been present at
the Plaintiff’s job locations was placed in any such locations and/or buildings upon specification,
approval or at the instruction of governmental or legislative agencies or bodies.
THIRTIETH AFFIRMATIVE DEFENSE
At all times alleged in the Complaint, BMI followed the plans, specifications and contracts
set by a governmental body and did not deviate from said plans, specifications and contracts and
is thus cloaked with immunity.
THIRTY-FIRST AFFIRMATIVE DEFENSE
BMI is not liable to the plaintiff for the damages alleged in the Complaint because such
damages are excluded and not recoverable under express warranty.
THIRTY-SECOND AFFIRMATIVE DEFENSE
BMI denies that the asbestos products alleged in the Complaint are products within the
meaning and scope of the Restatement (Second) of Torts 402A and, as such, the Complaint fails
to state a cause of action in strict products liability.
THIRTY-THIRD AFFIRMATIVE DEFENSE
BMI had no knowledge or reason to know of any alleged risks associated with asbestos
and/or asbestos-containing products the existence of any such asbestos containing product
manufactured, sold, or distributed by BMI being expressly denied, at any time during the periods
complained of.
11 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
THIRTY-FOURTH AFFIRMATIVE DEFENSE
The injuries allegedly suffered by the plaintiff are due to an idiosyncratic reaction on the
part of the plaintiff. As such, BMI is not responsible therefor.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
Exposure to asbestos fibers attributable to BMI, the existence of any such asbestos
containing product manufactured, sold, or distributed by BMI being expressly denied, is so
minimal so as to be insufficient to establish a reasonable degree of probability that the products
are capable of causing injury or damages and must be considered speculative as a matter of law.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
If BMI was on notice of any hazard or defect for which the plaintiff seeks relief, which
BMI denies, plaintiff also had such notice and is thereby barred from recovery.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
There is no justiciable issue or controversy.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
The claims for damages have not accrued and are merely speculative, uncertain and
contingent.
THIRTY-NINTH AFFIRMATIVE DEFENSE
The plaintiff has acted voluntarily, unnecessarily, prematurely and with no evidence of
injury to anyone at any job locations.
FORTIETH AFFIRMATIVE DEFENSE
None of the alleged injuries or damages were foreseeable at the time of the acts or
omissions alleged in the Plaintiff’s Complaint.
12 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
FORTY-FIRST AFFIRMATIVE DEFENSE
The plaintiff was warned of the risk of exposure to use of asbestos-containing materials,
the existence of any such asbestos containing product manufactured, sold, or distributed by BMI
being expressly denied.
FORTY-SECOND AFFIRMATIVE DEFENSE
The Plaintiff’s cause of action for exemplary or punitive damages is barred because such
damages are not recoverable or warranted in this action.
FORTY-THIRD AFFIRMATIVE DEFENSE
The Plaintiff’s demand for punitive damages is barred by the ex post facto clause of the
United States Constitution.
FORTY-FOURTH AFFIRMATIVE DEFENSE
At all times relevant to this litigation, BMI complied with all applicable laws, regulations
and standards.
FORTY-FIFTH AFFIRMATIVE DEFENSE
Some or all of the causes of action may not be maintained because of collateral estoppel.
FORTY-SIXTH AFFIRMATIVE DEFENSE
Any damages which may have been sustained by the plaintiff were caused and contributed
to by reason of the negligence of the plaintiff.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Any damages which may have been sustained by the plaintiff were contributed to, in whole
or in part, by the conduct of the plaintiff.
13 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
FORTY-EIGHTH AFFIRMATIVE DEFENSE
If the plaintiff sustained injuries in the manner alleged, all of which has been denied by
BMI, the liability of BMI, if any, should be limited in accordance with Article 16 of the Civil
Practice Law and Rules.
FORTY-NINTH AFFIRMATIVE DEFENSE
BMI denies that the plaintiff had any exposure to any asbestos product manufactured,
installed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or
otherwise placed in the stream of commerce, if any, by it, and more particularly, denies that BMI
manufactured, installed, supplied, developed, tested, fashioned, packaged, distributed, delivered,
sold, and/or otherwise placed in the stream of commerce, any asbestos product at the time and
upon the dates alleged in the Complaint.
FIFTIETH AFFIRMATIVE DEFENSE
BMI had no duty to plaintiff or has performed each and every duty, if any, owning to
plaintiff.
FIFTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff neither used nor was exposed to any asbestos-containing product manufactured,
assembled, installed, distributed, sold and/or supplied by BMI, the existence of any such products
being expressly denied.
FIFTY-SECOND AFFIRMATIVE DEFENSE
The claims of plaintiff, if any, are barred by the provisions of 29 C.F.R. § 1910.1001(g) (2)
relating to asbestos or the use thereof.
14 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
FIFTY-THIRD AFFIRMATIVE DEFENSE
BMI was never a member of any asbestos trade association and has no liability or
knowledge that might have arisen therefrom.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
BMI did not manufacture, process, or produce any asbestos materials and has no liability
that might have arisen therefrom.
FIFTY-FIFTH AFFIRMATIVE DEFENSE
BMI was at all times relevant hereto, a seller of bulk material and as such, is not required
to warn end users of risks associated with using the materials sold in bulk, when the intermediate
purchaser knew or should have known of those risks and warned the end user. Accordingly, BMI,
as a seller of bulk material, is not liable for any of Plaintiff’s alleged damages.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
This action is barred by virtue of the four year Statute of Limitations prescribed by Section
2-725 of the New York Uniform Commercial Code and other applicable statutes of limitation; by
virtue of failure of plaintiff to give requisite notice to BMI under Article 2 of the Uniform
Commercial Code, insofar as a cause of action is alleged for breach of warranty or warranties,
express or implied; as well as by virtue of the absence of privity or of any contractual relationship
between the plaintiff and BMI.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
Some or all of the causes of action may not be maintained because of arbitration and award.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
Some or all of the causes of action may not be maintained because of discharge in
bankruptcy.
15 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
FIFTY-NINTH AFFIRMATIVE DEFENSE
Some or all of the causes of action may not be maintained because of payment.
SIXTIETH AFFIRMATIVE DEFENSE
Some or all of the causes of action may not be maintained because of release.
SIXTY-FIRST AFFIRMATIVE DEFENSE
Some or all of the causes of action may not be maintained because of res judicata.
SIXTY-SECOND AFFIRMATIVE DEFENSE
This Court lacks subject matter jurisdiction over each and every Count contained in
Plaintiff’s Complaint.
SIXTY-THIRD AFFIRMATIVE DEFENSE
Plaintiff has failed to plead any basis for claims of misrepresentation, deliberate
concealment or fraud against BMI, much less state claims with the specificity required by the Civil
Practice Law and Rules.
SIXTY-FOURTH AFFIRMATIVE DEFENSE
Talc, was at all times relevant hereto, generally recognized and accepted as being
an inherently safe substance when used as an ingredient in products designated for human use
and consumption. Accordingly, Plaintiff’s claimed exposure to talc from BMI, which claimed
exposure has been denied, could not have been a cause of any of Plaintiff’s alleged damages.
SIXTY-FIFTH AFFIRMATIVE DEFENSE
BMI hereby invokes the provisions of Article 50-B of the Civil Practice Law and Rules.
SIXTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiff failed to effectuate proper service of process on BMI.
16 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
SIXTY-SEVENTH AFFIRMATIVE DEFENSE
BMI avers that venue is improper.
SIXTY-EIGHTH AFFIRMATIVE DEFENSE
If the plaintiff is barred from recovery, the action of his/her spouse is also barred because
it is a derivative action.
SIXTY-NINTH AFFIRMATIVE DEFENSE
BMI reserves the right to assert any and/or all applicable affirmative defenses which
discovery may reveal appropriate.
SEVENTIETH AFFIRMATIVE DEFENSE
This Court is considered a forum non conveniens for BMI with respect to each and every
Count contained in plaintiff’s Complaint.
SEVENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff cannot recover under a Market Share Theory of liability in New York.
SEVENTY-SECOND AFFIRMATIVE DEFENSE
This answering Defendant was under no duty to warn purchasers, or those under their
control who were in a better position to warn, if warning was required, their failure to do so was
intervening and superseding proximate cause of injury.
SEVENTY-THIRD AFFIRMATIVE DEFENSE
That the product manufacturers were sophisticated purchasers of the materials referred to
in plaintiff’s Complaint and upon who devolved all responsibility for such use.
SEVENTY- FOURTH AFFIRMATIVE DEFENSE
That any claim against this answering Defendant is barred by alteration, modification or
misuse of the product.
17 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
SEVENTY-FIFTH AFFIRMATIVE DEFENSE
That all defenses which have been and or will be asserted are adopted and incorporated
by reference as if fully set forth herein.
SEVENTY-SIXTH AFFIRMATIVE DEFENSE
BMI denies that the conduct of any other person, party, or entity, can be imputed to BMI
such that liability can be imposed on BMI for such conduct, or that such conduct can otherwise
form a basis for liability against BMI.
REPLY TO CROSS-CLAIM(S) OF OTHER DEFENDANTS AND ADDITIONAL
DEFENDANTS
BMI denies all cross claims now or hereafter averred against it and asserts that it is not
liable to any other defendants or additional defendants, now or hereafter joined in this action.
BMI believes and therefore avers that certain defendants and/or additional defendants,
now or hereafter joined in this action, may have entered into releases with the plaintiff herein.
To the extent that certain defendants and/or additional defendants have entered into such
releases with the plaintiff herein, such defendants and/or additional defendants, now or hereafter
joined in this action, are not entitled to contribution or indemnity from BMI.
AS AND FOR A CROSS-CLAIM AGAINST EACH AND EVERY CO-DEFENDANT,
THE DEFENDANT, BARRETTS MINERALS INC., ALLEGES UPON INFORMATION
AND BELIEF AS FOLLOWS:
That if the plaintiff sustained the injuries and damages in the manner and at the time and
place alleged, and if it is found that the answering defendant is liable to plaintiff herein, all of
which is specifically denied, then said answering defendant on the basis of contract, either
expressed or implied by law and/or by apportionment of responsibility for the alleged
occurrence, is entitled to indemnification or contribution from and judgment over and against
18 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
some or all of the co-defendants in this action for all or part of any verdict or judgment that
plaintiff may recover against said answering defendant.
That by reason of this action, said answering defendant has been and will be put to costs
and expenses including attorney’s fees for the defense of the same and, therefore, the answering
defendant is entitled to reimbursement from some or all of the co-defendants for some or all of
said costs, expenses and fees.
WHEREFORE, defendant BMI demands judgment dismissing the Complaint herein and
all cross-claims in their entirety, and further demands that the ultimate rights of all of the parties
as between themselves be determined in this action and that BMI have judgment over and
against all other defendants, third-party defendants and third-party plaintiff, now or hereafter
joined in this action, for all or part of any verdict or judgment that may be obtained by the
plaintiff herein, together with fees, costs and disbursements in this action, and such other further
relief as this Court deems just and proper.
Dated: White Plains, New York
March 3, 2023
Yours, etc.
/s/ Joan M. Gasior
By: Joan M. Gasior, Esq.
RENZULLI LAW FIRM, LLP
One North Broadway, Suite 1005
White Plains, NY 10601
Telephone: (914) 285-0700
Facsimile: (914) 285-1213
Attorneys for Defendant
Barretts Minerals Inc.
To: Darron E. Berquist, Esq.
Lanier Law Firm PLLC
126 E. 56th Street, 6th Floor
New York, New York 10022
(212) 421-2800
Attorneys for Plaintiff(s)
19 of 20
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023
ATTORNEY’S VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
I, Joan M. Gasior, the undersigned, am an attorney admitted to practice in the courts of
New York State, and say that:
I am an attorney for defendant, Barretts Minerals Inc. I have read the annexed Verified
Answer of Barretts Minerals Inc. to Plaintiffs’ Summons and Verified Complaint, know the
contents thereof and the same are true to my knowledge, except those matters therein which are
stated to be alleged on information and belief, and as to those matters I believe them to be true.
My belief, as to those matters therein not stated upon knowledge, is based upon conversations with
the defendant and review of records or documents in the file.
The reason I make this affirmation instead of the defendant is that it is not in the county in
which I maintain my office.
I affirm that the foregoing statements are true, under penalties of perjury.
Dated: White Plains, New York
March 3, 2023
/s/ Joan M. Gasior
Joan M. Gasior
20 of 20
Preview
FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X DAN ALBASRY, as Trustee of the Estate of NEWAL AL SAAD, and FIRAS MOHAMMAD, Plaintiffs, Index No.: 190002/2023 -against- VERIFIED ANSWER BARRETTS MINERALS INC., et al., Defendants. ------------------------------------------------------------------------X BARRETTS MINERALS INC., (hereinafter referred to as “BMI”), by and through its counsel, RENZULLI LAW FIRM, LLP, as and for its Answer to Plaintiffs’ Summons and Verified Complaint (hereinafter referred to as “Complaint”) states upon information and belief as follows: 1. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “1” through “25” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “1” through “25” of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION 2. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “25” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “26” of the Complaint. 3. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “27” through “42” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “27” through “42” of the 1 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION 4. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “42” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “43” of the Complaint. 5. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “44” through “49” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “44” through “49” of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION 6. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “49” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “50” of the Complaint. 7. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “51” through “59” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “51” through “59” of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. 2 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION 8. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “59” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “60” of the Complaint. 9. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “61” through “67” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “61” through “67” of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION 10. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “67” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “68” of the Complaint. 11. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “69” through “75” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “69” through “75” of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION 12. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “75” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “76” of the Complaint. 3 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 13. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “77” through “93” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “77” through “93” of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE SEVENTH CAUSE OF ACTION 14. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “93” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “94” of the Complaint. 15. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “95” through “100” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “95” through “100” and of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE EIGHTH CAUSE OF ACTION 16. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “100” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “101” of the Complaint. 17. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs “102” through “162” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “102” through “162” of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. 4 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 AS AND FOR AN ANSWER TO THE NINTH CAUSE OF ACTION 18. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “162” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “163” of the Complaint. 19. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph “164” of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraph “164” of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE TENTH CAUSE OF ACTION 20. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “164” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “165” of the Complaint. 21. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph “166” and all unnumbered Paragraphs of the Complaint with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “166” and all unnumbered Paragraphs of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE ELEVENTH CAUSE OF ACTION 22. BMI repeats and realleges each and every response to the Paragraphs designated as “1” through “166” with the same force and effect as if more fully set forth herein in response to the allegations contained in the Paragraph designated as “167” of the Complaint. 23. BMI denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph “168” and all unnumbered Paragraphs of the Complaint 5 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 with respect to defendants other than BMI. Insofar as the allegations in Paragraphs “168” and all unnumbered Paragraphs of the Complaint are directed to BMI, they are denied and BMI refers all questions of law to this Honorable Court. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Each and every Count of Plaintiff’s Complaint fails to state a claim against BMI upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE The claims are barred by the applicable statute of limitations. THIRD AFFIRMATIVE DEFENSE The Court lacks personal jurisdiction over BMI, or over each and every count asserted against BMI in Plaintiff’s Complaint. FOURTH AFFIRMATIVE DEFENSE The injuries and/or illnesses, if any, sustained by plaintiff were caused or contributed to by the fault, negligence and want of care on the part of plaintiff or on the part of others for whose acts or omission or breach of legal duty BMI is not liable. FIFTH AFFIRMATIVE DEFENSE To the extent that plaintiff failed and neglected to maintain this action in a swift, diligent and/or timely fashion, Plaintiff’s claims against BMI are barred by laches. SIXTH AFFIRMATIVE DEFENSE The injuries and/or illnesses of the plaintiff, if any, arose in whole or in part, out of the risks, hazards and dangers incident to the occupations of plaintiff, all of which were open, obvious and well known to the plaintiff, and any claims against BMI are therefore barred. 6 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 SEVENTH AFFIRMATIVE DEFENSE To the extent that the injuries and/or illnesses of plaintiff, if any, were caused or contributed to, in whole or in part, by intervening and superseding causative factors, the claims against BMI are barred. EIGHTH AFFIRMATIVE DEFENSE To the extent that any of the alleged products were modified, altered, or in any way materially varied, which may be causally related to the claims of plaintiff, Plaintiff’s claims against BMI are barred. NINTH AFFIRMATIVE DEFENSE At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable, unsafe, inherently dangerous, or hazardous character or nature of asbestos-containing material, the existence of any such asbestos containing product manufactured, sold, or distributed by BMI being expressly denied, when used in the manner and purpose allegedly described by the plaintiff and, therefore, there was no duty on the part of BMI to know of any such character or nature or to warn or protect plaintiff or others similarly situated. TENTH AFFIRMATIVE DEFENSE To the extent that plaintiff sustained the alleged injuries and/or illnesses through any careless, recklessness, acts, omissions, negligence and/or breach of duty and/or warranty and/or contract of BMI, Plaintiff’s claims are barred by the exclusivity of Plaintiff’s workers compensation remedy. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by reason of the Statute of Frauds. 7 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 TWELFTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by reason of the doctrine waiver. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by reason of the doctrine of estoppel. FOURTEENTH AFFIRMATIVE DEFENSE To the extent that plaintiff relies on New York Law L. 1986 C. 682 Section 4 as grounds for maintaining this action, said section is unconstitutional and this action is time barred. FIFTEENTH AFFIRMATIVE DEFENSE Insofar as the claims herein are premised on Plaintiff’s claims accruing on or after September 1, 1975 to recover damages attributable to personal injuries or for indemnification of such damages, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to plaintiff and/or the other defendants herein, including their comparative negligence and assumption of risk, in the proportion which the culpable conduct attributable to plaintiff bears to the culpable conduct which caused the damages. SIXTEENTH AFFIRMATIVE DEFENSE This action does not fall within any exception enumerated in N.Y. C.P.L.R. Article 16, and, if liability of this defendant is found to be 50% or less of the total liability assigned to all persons, the liability of this defendant shall not exceed this defendant’s equitable share determined in accordance with the relative culpability of each person contributing to the total liability for non- economic loss. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred because of Plaintiff’s failure to join necessary and indispensable parties. 8 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 EIGHTEENTH AFFIRMATIVE DEFENSE BMI is not a party and/or real party in interest in connection with the claims asserted by plaintiff. NINETEENTH AFFIRMATIVE DEFENSE Plaintiff may not bring this action as plaintiff has failed to exhaust all administrative remedies. TWENTIETH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the Complaint. TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiff contributed to the illnesses, either in whole or in part, by the use of tobacco products and/or other substances, products, medication or drugs. TWENTY-SECOND AFFIRMATIVE DEFENSE At all times relevant to this litigation, the agents, servants and/or employees of BMI used proper methods in handling the products complained of and conducting its operations, in conformity with available knowledge, state of the art, and research of the scientific and industrial communities. TWENTY-THIRD AFFIRMATIVE DEFENSE The damages allegedly sustained by the plaintiff were caused, in whole or in part, through the operation of nature. TWENTY-FOURTH AFFIRMATIVE DEFENSE To the extent that the plaintiff was exposed to any asbestos product as a result of conduct by BMI, which is denied, said exposure was de minimis and not a substantial contributing factor 9 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 to any asbestos-related disease which such plaintiff may have developed, thus requiring dismissal of the claims against BMI. TWENTY-FIFTH AFFIRMATIVE DEFENSE Insofar as the Complaint seeks exemplary and/or punitive damages, each such claim is barred by the due process clauses of the Fourteenth Amendment of the United States Constitution and the New York State Constitution; by prescription of the Eighth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment and Article I, Section 5 of the New York State Constitution prohibiting the imposition of excess fines; and by the double jeopardy clause of the Fifth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution. TWENTY-SIXTH AFFIRMATIVE DEFENSE All defenses which have been or will be asserted by other defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to the Complaint. In addition, BMI will rely upon any and all other further defenses which become available or appear during discovery proceedings in this action and hereby respectfully reserves the right to amend its answer for the purposes of asserting any such additional defenses. TWENTY-SEVENTH AFFIRMATIVE DEFENSE If the plaintiff sustained damages as alleged, such damages occurred while he/she was engaged in activities into which he/she entered, knowing the hazard, risk and danger of the activities, and he/she assumed the risks incidental and attended thereto. TWENTY-EIGHTH AFFIRMATIVE DEFENSE No acts or omissions of BMI proximately caused any damages. 10 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 TWENTY-NINTH AFFIRMATIVE DEFENSE Any asbestos-containing product, the existence of any such asbestos containing product manufactured, sold, or distributed by BMI being expressly denied, that may have been present at the Plaintiff’s job locations was placed in any such locations and/or buildings upon specification, approval or at the instruction of governmental or legislative agencies or bodies. THIRTIETH AFFIRMATIVE DEFENSE At all times alleged in the Complaint, BMI followed the plans, specifications and contracts set by a governmental body and did not deviate from said plans, specifications and contracts and is thus cloaked with immunity. THIRTY-FIRST AFFIRMATIVE DEFENSE BMI is not liable to the plaintiff for the damages alleged in the Complaint because such damages are excluded and not recoverable under express warranty. THIRTY-SECOND AFFIRMATIVE DEFENSE BMI denies that the asbestos products alleged in the Complaint are products within the meaning and scope of the Restatement (Second) of Torts 402A and, as such, the Complaint fails to state a cause of action in strict products liability. THIRTY-THIRD AFFIRMATIVE DEFENSE BMI had no knowledge or reason to know of any alleged risks associated with asbestos and/or asbestos-containing products the existence of any such asbestos containing product manufactured, sold, or distributed by BMI being expressly denied, at any time during the periods complained of. 11 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 THIRTY-FOURTH AFFIRMATIVE DEFENSE The injuries allegedly suffered by the plaintiff are due to an idiosyncratic reaction on the part of the plaintiff. As such, BMI is not responsible therefor. THIRTY-FIFTH AFFIRMATIVE DEFENSE Exposure to asbestos fibers attributable to BMI, the existence of any such asbestos containing product manufactured, sold, or distributed by BMI being expressly denied, is so minimal so as to be insufficient to establish a reasonable degree of probability that the products are capable of causing injury or damages and must be considered speculative as a matter of law. THIRTY-SIXTH AFFIRMATIVE DEFENSE If BMI was on notice of any hazard or defect for which the plaintiff seeks relief, which BMI denies, plaintiff also had such notice and is thereby barred from recovery. THIRTY-SEVENTH AFFIRMATIVE DEFENSE There is no justiciable issue or controversy. THIRTY-EIGHTH AFFIRMATIVE DEFENSE The claims for damages have not accrued and are merely speculative, uncertain and contingent. THIRTY-NINTH AFFIRMATIVE DEFENSE The plaintiff has acted voluntarily, unnecessarily, prematurely and with no evidence of injury to anyone at any job locations. FORTIETH AFFIRMATIVE DEFENSE None of the alleged injuries or damages were foreseeable at the time of the acts or omissions alleged in the Plaintiff’s Complaint. 12 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 FORTY-FIRST AFFIRMATIVE DEFENSE The plaintiff was warned of the risk of exposure to use of asbestos-containing materials, the existence of any such asbestos containing product manufactured, sold, or distributed by BMI being expressly denied. FORTY-SECOND AFFIRMATIVE DEFENSE The Plaintiff’s cause of action for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. FORTY-THIRD AFFIRMATIVE DEFENSE The Plaintiff’s demand for punitive damages is barred by the ex post facto clause of the United States Constitution. FORTY-FOURTH AFFIRMATIVE DEFENSE At all times relevant to this litigation, BMI complied with all applicable laws, regulations and standards. FORTY-FIFTH AFFIRMATIVE DEFENSE Some or all of the causes of action may not be maintained because of collateral estoppel. FORTY-SIXTH AFFIRMATIVE DEFENSE Any damages which may have been sustained by the plaintiff were caused and contributed to by reason of the negligence of the plaintiff. FORTY-SEVENTH AFFIRMATIVE DEFENSE Any damages which may have been sustained by the plaintiff were contributed to, in whole or in part, by the conduct of the plaintiff. 13 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 FORTY-EIGHTH AFFIRMATIVE DEFENSE If the plaintiff sustained injuries in the manner alleged, all of which has been denied by BMI, the liability of BMI, if any, should be limited in accordance with Article 16 of the Civil Practice Law and Rules. FORTY-NINTH AFFIRMATIVE DEFENSE BMI denies that the plaintiff had any exposure to any asbestos product manufactured, installed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce, if any, by it, and more particularly, denies that BMI manufactured, installed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce, any asbestos product at the time and upon the dates alleged in the Complaint. FIFTIETH AFFIRMATIVE DEFENSE BMI had no duty to plaintiff or has performed each and every duty, if any, owning to plaintiff. FIFTY-FIRST AFFIRMATIVE DEFENSE Plaintiff neither used nor was exposed to any asbestos-containing product manufactured, assembled, installed, distributed, sold and/or supplied by BMI, the existence of any such products being expressly denied. FIFTY-SECOND AFFIRMATIVE DEFENSE The claims of plaintiff, if any, are barred by the provisions of 29 C.F.R. § 1910.1001(g) (2) relating to asbestos or the use thereof. 14 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 FIFTY-THIRD AFFIRMATIVE DEFENSE BMI was never a member of any asbestos trade association and has no liability or knowledge that might have arisen therefrom. FIFTY-FOURTH AFFIRMATIVE DEFENSE BMI did not manufacture, process, or produce any asbestos materials and has no liability that might have arisen therefrom. FIFTY-FIFTH AFFIRMATIVE DEFENSE BMI was at all times relevant hereto, a seller of bulk material and as such, is not required to warn end users of risks associated with using the materials sold in bulk, when the intermediate purchaser knew or should have known of those risks and warned the end user. Accordingly, BMI, as a seller of bulk material, is not liable for any of Plaintiff’s alleged damages. FIFTY-SIXTH AFFIRMATIVE DEFENSE This action is barred by virtue of the four year Statute of Limitations prescribed by Section 2-725 of the New York Uniform Commercial Code and other applicable statutes of limitation; by virtue of failure of plaintiff to give requisite notice to BMI under Article 2 of the Uniform Commercial Code, insofar as a cause of action is alleged for breach of warranty or warranties, express or implied; as well as by virtue of the absence of privity or of any contractual relationship between the plaintiff and BMI. FIFTY-SEVENTH AFFIRMATIVE DEFENSE Some or all of the causes of action may not be maintained because of arbitration and award. FIFTY-EIGHTH AFFIRMATIVE DEFENSE Some or all of the causes of action may not be maintained because of discharge in bankruptcy. 15 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 FIFTY-NINTH AFFIRMATIVE DEFENSE Some or all of the causes of action may not be maintained because of payment. SIXTIETH AFFIRMATIVE DEFENSE Some or all of the causes of action may not be maintained because of release. SIXTY-FIRST AFFIRMATIVE DEFENSE Some or all of the causes of action may not be maintained because of res judicata. SIXTY-SECOND AFFIRMATIVE DEFENSE This Court lacks subject matter jurisdiction over each and every Count contained in Plaintiff’s Complaint. SIXTY-THIRD AFFIRMATIVE DEFENSE Plaintiff has failed to plead any basis for claims of misrepresentation, deliberate concealment or fraud against BMI, much less state claims with the specificity required by the Civil Practice Law and Rules. SIXTY-FOURTH AFFIRMATIVE DEFENSE Talc, was at all times relevant hereto, generally recognized and accepted as being an inherently safe substance when used as an ingredient in products designated for human use and consumption. Accordingly, Plaintiff’s claimed exposure to talc from BMI, which claimed exposure has been denied, could not have been a cause of any of Plaintiff’s alleged damages. SIXTY-FIFTH AFFIRMATIVE DEFENSE BMI hereby invokes the provisions of Article 50-B of the Civil Practice Law and Rules. SIXTY-SIXTH AFFIRMATIVE DEFENSE Plaintiff failed to effectuate proper service of process on BMI. 16 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 SIXTY-SEVENTH AFFIRMATIVE DEFENSE BMI avers that venue is improper. SIXTY-EIGHTH AFFIRMATIVE DEFENSE If the plaintiff is barred from recovery, the action of his/her spouse is also barred because it is a derivative action. SIXTY-NINTH AFFIRMATIVE DEFENSE BMI reserves the right to assert any and/or all applicable affirmative defenses which discovery may reveal appropriate. SEVENTIETH AFFIRMATIVE DEFENSE This Court is considered a forum non conveniens for BMI with respect to each and every Count contained in plaintiff’s Complaint. SEVENTY-FIRST AFFIRMATIVE DEFENSE Plaintiff cannot recover under a Market Share Theory of liability in New York. SEVENTY-SECOND AFFIRMATIVE DEFENSE This answering Defendant was under no duty to warn purchasers, or those under their control who were in a better position to warn, if warning was required, their failure to do so was intervening and superseding proximate cause of injury. SEVENTY-THIRD AFFIRMATIVE DEFENSE That the product manufacturers were sophisticated purchasers of the materials referred to in plaintiff’s Complaint and upon who devolved all responsibility for such use. SEVENTY- FOURTH AFFIRMATIVE DEFENSE That any claim against this answering Defendant is barred by alteration, modification or misuse of the product. 17 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 SEVENTY-FIFTH AFFIRMATIVE DEFENSE That all defenses which have been and or will be asserted are adopted and incorporated by reference as if fully set forth herein. SEVENTY-SIXTH AFFIRMATIVE DEFENSE BMI denies that the conduct of any other person, party, or entity, can be imputed to BMI such that liability can be imposed on BMI for such conduct, or that such conduct can otherwise form a basis for liability against BMI. REPLY TO CROSS-CLAIM(S) OF OTHER DEFENDANTS AND ADDITIONAL DEFENDANTS BMI denies all cross claims now or hereafter averred against it and asserts that it is not liable to any other defendants or additional defendants, now or hereafter joined in this action. BMI believes and therefore avers that certain defendants and/or additional defendants, now or hereafter joined in this action, may have entered into releases with the plaintiff herein. To the extent that certain defendants and/or additional defendants have entered into such releases with the plaintiff herein, such defendants and/or additional defendants, now or hereafter joined in this action, are not entitled to contribution or indemnity from BMI. AS AND FOR A CROSS-CLAIM AGAINST EACH AND EVERY CO-DEFENDANT, THE DEFENDANT, BARRETTS MINERALS INC., ALLEGES UPON INFORMATION AND BELIEF AS FOLLOWS: That if the plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if it is found that the answering defendant is liable to plaintiff herein, all of which is specifically denied, then said answering defendant on the basis of contract, either expressed or implied by law and/or by apportionment of responsibility for the alleged occurrence, is entitled to indemnification or contribution from and judgment over and against 18 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 some or all of the co-defendants in this action for all or part of any verdict or judgment that plaintiff may recover against said answering defendant. That by reason of this action, said answering defendant has been and will be put to costs and expenses including attorney’s fees for the defense of the same and, therefore, the answering defendant is entitled to reimbursement from some or all of the co-defendants for some or all of said costs, expenses and fees. WHEREFORE, defendant BMI demands judgment dismissing the Complaint herein and all cross-claims in their entirety, and further demands that the ultimate rights of all of the parties as between themselves be determined in this action and that BMI have judgment over and against all other defendants, third-party defendants and third-party plaintiff, now or hereafter joined in this action, for all or part of any verdict or judgment that may be obtained by the plaintiff herein, together with fees, costs and disbursements in this action, and such other further relief as this Court deems just and proper. Dated: White Plains, New York March 3, 2023 Yours, etc. /s/ Joan M. Gasior By: Joan M. Gasior, Esq. RENZULLI LAW FIRM, LLP One North Broadway, Suite 1005 White Plains, NY 10601 Telephone: (914) 285-0700 Facsimile: (914) 285-1213 Attorneys for Defendant Barretts Minerals Inc. To: Darron E. Berquist, Esq. Lanier Law Firm PLLC 126 E. 56th Street, 6th Floor New York, New York 10022 (212) 421-2800 Attorneys for Plaintiff(s) 19 of 20 FILED: NEW YORK COUNTY CLERK 03/03/2023 10:03 AM INDEX NO. 190002/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/03/2023 ATTORNEY’S VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF WESTCHESTER ) I, Joan M. Gasior, the undersigned, am an attorney admitted to practice in the courts of New York State, and say that: I am an attorney for defendant, Barretts Minerals Inc. I have read the annexed Verified Answer of Barretts Minerals Inc. to Plaintiffs’ Summons and Verified Complaint, know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon conversations with the defendant and review of records or documents in the file. The reason I make this affirmation instead of the defendant is that it is not in the county in which I maintain my office. I affirm that the foregoing statements are true, under penalties of perjury. Dated: White Plains, New York March 3, 2023 /s/ Joan M. Gasior Joan M. Gasior 20 of 20