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FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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DAN ALBASRY, as Trustee of the Estate of Index No. 190002/2023
NEWAL AL SAAD, and FIRAS MOHAMMAD,
Plaintiffs, WHITTAKER, CLARK &
v. DANIELS, INC.’S
ANSWER, AFFIRMATIVE
BARRETTS MINERALS INC., et al. DEFENSES, AND CROSS-
CLAIMS TO PLAINTIFF’S
VERIFIED COMPLAINT
Defendants.
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Defendant WHITTAKER, CLARK & DANIELS, INC. (“Defendant” or “WCD”) by its
attorneys, Landman Corsi Ballaine & Ford P.C., hereby answers Plaintiffs’ Summons and
Complaint (“Complaint”) as follows:
AS TO THE PARTIES
FIRST. Defendant denies knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraphs “1” through “18,” and “20” through “21”
the Complaint and refers all questions of law to the Court.
SECOND. With respect to paragraph “19” Defendant WCD admits that at certain
times, WCD was a corporation with its principal place of business outside of the State of New
York. WCD ceased doing business in 2004, but remained a viable business entity in New Jersey
since then. Defendant denies the balance of the allegations contained in paragraph “19” of the
Complaint and refers all questions of law to the Court.
THIRD. Defendant WCD denies the truth of each and every allegation contained
in paragraphs “22” through “25” of the Complaint to the extent that they apply to WCD and refers
all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation set forth in paragraphs “22” through “25” of the
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Complaint to the extent they pertain to all other named defendants.
WITH RESPECT TO THE FIRST CAUSE OF ACTION
FOURTH. With respect to the allegations contained in paragraph “26” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through "THIRD” of this Answer with the same force and effect as if fully
set forth at length herein.
FIFTH. Defendant denies the truth of each and every allegation contained in
paragraphs “27” through “42” of the Complaint to the extent that they apply to WCD and refers
all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation set forth in paragraphs “27” through “42” of the
Complaint to the extent they pertain to all other named defendants and/or Plaintiffs.
WITH RESPECT TO THE SECOND CAUSE OF ACTION
SIXTH. With respect to the allegations contained in paragraph “43” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through "FIFTH” of this Answer with the same force and effect as if fully set
forth at length herein.
SEVENTH. Defendant denies the truth of each and every allegation contained in
paragraphs “44” through “49” of the Complaint to the extent that they apply to WCD and refers
all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation set forth in paragraphs “44” through “49” of the
Complaint to the extent they pertain to all other named defendants and/or Plaintiffs.
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WITH RESPECT TO THE THIRD CAUSE OF ACTION
EIGHTH. With respect to the allegations contained in paragraph “50” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through "SEVENTH” of this Answer with the same force and effect as if fully
set forth at length herein.
NINTH. Defendant denies the truth of each and every allegation contained in
paragraphs “51” through “59” of the Complaint to the extent that they apply to WCD and refers
all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation set forth in paragraphs “51” through “59” of the
Complaint to the extent they pertain to all other named defendants and/or Plaintiffs.
WITH RESPECT TO THE FOURTH CAUSE OF ACTION
TENTH. With respect to the allegations contained in paragraph “60” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through "NINTH” of this Answer with the same force and effect as if fully
set forth at length herein.
ELEVENTH. Defendant denies the truth of each and every allegation contained in
paragraphs “61” through “67” of the Complaint and refers all questions of law to the Court. WCD
denies knowledge or information sufficient to form a belief as to the truth of each and every
allegation set forth in paragraphs “61” through “67” of the Complaint to the extent they pertain to
all other named defendants and/or Plaintiffs.
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WITH RESPECT TO THE FIFTH CAUSE OF ACTION
TWELFTH. With respect to the allegations contained in paragraph “68” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through "ELEVENTH” of this Answer with the same force and effect as if
fully set forth at length herein.
THIRTEENTH. Defendant denies the truth of each and every allegation contained in
paragraphs “69” through “75” of the Complaint to the extent that they apply to WCD and refers
all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation set forth in paragraphs “74” through “75” of the
Complaint to the extent they pertain to all other named defendants and/or Plaintiffs.
WITH RESPECT TO THE SIXTH CAUSE OF ACTION
FOURTEENTH: With respect to the allegations contained in paragraph “76” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through "THIRTEENTH” of this Answer with the same force and effect as if
fully set forth at length herein.
FIFTEENTH: Defendant denies the truth of each and every allegation contained in
paragraphs “77” through “93” of the Complaint to the extent that they apply to WCD and refers
all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation set forth in paragraphs “77” through “93” of the
Complaint to the extent they pertain to all other named defendants and/or Plaintiffs
WITH RESPECT TO THE SEVENTH CAUSE OF ACTION
SIXTEENTH: With respect to the allegations contained in paragraph “94” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
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paragraphs "FIRST" through “FIFTEENTH” of this Answer with the same force and effect as if
fully set forth at length herein.
SEVENTEENTH: Defendant denies the truth of each and every allegation contained in
paragraphs “95” through “100” of the Complaint to the extent that they apply to WCD and refers
all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation set forth in paragraphs “95” through “100” of the
Complaint to the extent they pertain to all other named defendants and/or Plaintiffs
WITH RESPECT TO THE EIGHTH CAUSE OF ACTION
EIGHTEENTH: With respect to the allegations contained in paragraph “101” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through “SEVENTEENTH” of this Answer with the same force and effect as
if fully set forth at length herein.
NINETEENTH: Defendant denies the truth of each and every allegation contained in
paragraphs “102” through “162” of the Complaint to the extent that they apply to WCD and refers
all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation set forth in paragraphs “102” through “162” of the
Complaint to the extent they pertain to all other named defendants and/or Plaintiffs
WITH RESPECT TO THE NINTH CAUSE OF ACTION
TWENTIETH: With respect to the allegations contained in paragraph “163” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through “NINETEENTH” of this Answer with the same force and effect as
if fully set forth at length herein.
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TWENTY-FIRST: Defendant denies the truth of each and every allegation contained in
paragraphs “164” of the Complaint to the extent that they apply to WCD and refers all questions
of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the
truth of each and every allegation set forth in paragraphs “164” of the Complaint to the extent they
pertain to all other named defendants and/or Plaintiffs
WITH RESPECT TO THE TENTH CAUSE OF ACTION
TWENTY-SECOND: With respect to the allegations contained in paragraph “165” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through “TWENTY-FIRST” of this Answer with the same force and effect
as if fully set forth at length herein.
TWENTY-THIRD: Defendant denies the truth of each and every allegation contained in
paragraphs “166” of the Complaint to the extent that they apply to WCD and refers all questions
of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the
truth of each and every allegation set forth in paragraphs “166” of the Complaint to the extent they
pertain to all other named defendants and/or Plaintiffs
WITH RESPECT TO THE ELEVENTH CAUSE OF ACTION
TWENTY-FOURTH: With respect to the allegations contained in paragraph “167” of the
Complaint, Defendant repeats, reiterates and realleges each and every response contained in
paragraphs "FIRST" through “TWENTY-THIRD” of this Answer with the same force and effect
as if fully set forth at length herein.
TWENTY-FIFTH: Defendant denies the truth of each and every allegation contained in
paragraphs “168” of the Complaint to the extent that they apply to WCD and refers all questions
of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the
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truth of each and every allegation set forth in paragraphs “”168” of the Complaint to the extent
they pertain to all other named defendants and/or Plaintiffs
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiff’s Complaint fails to state a cause of action against WCD upon which relief can be
granted.
SECOND AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over the subject matter of this action.
THIRD AFFIRMATIVE DEFENSE
This Court lacks personal jurisdiction over WCD.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrine of laches.
FIFTH AFFIRMATIVE DEFENSE
The venue of this action is improper.
SIXTH AFFIRMATIVE DEFENSE
The venue of this matter is inconvenient.
SEVENTH AFFIRMATIVE DEFENSE
This action cannot be maintained as there is another action pending for the same relief.
EIGHTH AFFIRMATIVE DEFENSE
Any damages, losses, or injuries sustained by Plaintiffs were caused by the acts and/or
omissions of persons or entities other than WCD and over whom WCD exercised no control.
NINTH AFFIRMATIVE DEFENSE
Any claims which Plaintiffs may have against WCD are barred, or, alternatively, must be
reduced by virtue of the doctrine of comparative and/or contributory negligence.
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TENTH AFFIRMATIVE DEFENSE
Plaintiffs has failed to mitigate damages.
ELEVENTH AFFIRMATIVE DEFENSE
Any damages allegedly sustained by Plaintiffs were the proximate result of unforeseen
and/or unforeseeable negligent, grossly negligent, wanton, reckless conduct or omission of
intervening third parties or superseding parties.
TWELFTH AFFIRMATIVE DEFENSE
The damages allegedly sustained by Plaintiffs were caused, in whole or in part, through the
operation of nature.
THIRTEENTH AFFIRMATIVE DEFENSE
If Plaintiffs sustained damages as alleged, such damages occurred while engaged in
activities which he/she entered knowing the hazard, risk and danger of the activities, and he/she
assumed the risks incidental to and attendant to those activities.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s action are barred pursuant to the applicable statutes of limitations and/or repose.
FIFTEENTH AFFIRMATIVE DEFENSE
No acts or omissions of WCD proximately caused Plaintiff’s damages.
SIXTEENTH AFFIRMATIVE DEFENSE
If any damages are recoverable against WCD, the amount of such damages shall be
diminished by the liability of others.
SEVENTEENTH AFFIRMATIVE DEFENSE
WCD claims the benefit of each and every credit or offset by reason of any replacement or
indemnification of costs or expenses from any collateral source.
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EIGHTEENTH AFFIRMATIVE DEFENSE
The negligence of Plaintiffs, and/or his/her non- WCD employers, proximately caused the
alleged injuries and damages and, even if Plaintiffs are entitled to damages, which WCD denies,
the damages should be set-off by any collateral source benefit payments received by Plaintiffs.
NINETEENTH AFFIRMATIVE DEFENSE
Any asbestos-containing products used at Plaintiff’s job locations were used in compliance
with specifications, approval or at the instruction of governmental or legislative agencies or bodies.
TWENTIETH AFFIRMATIVE DEFENSE
Any injuries or damages sustained by Plaintiffs resulted from exposure to asbestos-
containing products manufactured and sold in strict compliance with mandatory specifications
established by persons or entities other than WCD, including without limitation, agencies, agents
and departments of the United States, state or local governments, which persons or entities
possessed, at the time of such manufacture and sale, knowledge equal to or greater than that of
WCD concerning the properties and characteristics of asbestos and asbestos-containing products.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred in whole or in part by the applicable state-of-the-art defense.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Any product to which Plaintiffs claims exposure conformed with the existing state-of-the-
art, and the alleged hazards or dangers of said products or materials, if any, were created by the
conduct of said Plaintiffs and others.
TWENTY-THIRD AFFIRMATIVE DEFENSE
To the extent that Plaintiff’s claims are based on an alleged breach of warranty, WCD made
no express or implied warranties to Plaintiffs, including the warranties of merchantability and
fitness for a particular purpose.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff’s claims are based on an alleged breach of warranty, Plaintiffs
did not rely on any such warranties.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Any claims premised upon oral warranties upon which Plaintiffs allegedly relied are barred
pursuant to the Statute of Frauds.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
To the extent Plaintiffs sustained injuries from the use of a product alleged to contain
asbestos, which is denied, Plaintiffs, other defendants or other parties not under the control of
WCD, misused, abused, misapplied or otherwise mishandled the product alleged to be asbestos
material. Therefore, the amount of damages, which may be recoverable, must be diminished by
the proportion, which said misuse, abuse, misapplication and mishandling bears to the conduct,
which caused the alleged damage or injury.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs did not directly or indirectly purchase any asbestos-containing products or
materials from WCD and did not either receive or rely upon any representation or warranty
allegedly made by WCD.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
To the extent that Plaintiffs were exposed to any product containing asbestos as a result of
conduct by WCD, which is denied, said exposure was de minimis and not a substantial contributing
factor to any injury which Plaintiffs may have developed, and not actionable at law or equity.
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TWENTY-NINTH AFFIRMATIVE DEFENSE
Exposure to asbestos fibers attributable to WCD, if any, is so minimal so as to be
insufficient to establish to a reasonable degree of probability that said exposure is capable of
causing injury or damages and must be considered speculative as matter of law.
THIRTIETH AFFIRMATIVE DEFENSE
If WCD was on notice of any hazard or defect for which Plaintiffs seek relief, which it
denies, Plaintiffs also had such notice and is thereby barred from recovery.
THIRTY-FIRST AFFIRMATIVE DEFENSE
There is no justiciable issue or controversy.
THIRTY-SECOND AFFIRMATIVE DEFENSE
The claims for damages have not accrued, are purely speculative, uncertain and contingent.
THIRTY-THIRD AFFIRMATIVE DEFENSE
None of the alleged injuries or damages were foreseeable at the time of the acts or
omissions alleged in Plaintiff’s Complaint.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred as a matter of public policy.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred due to their failure to join necessary and indispensable parties.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiff’s action is barred because of the failure to exhaust all administrative remedies.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
Any cause of action for exemplary or punitive damages is barred, because such damages
are not recoverable or warranted in this action.
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THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Any demand for punitive damages is barred by the proscription of the Eighth Amendment
to the United States Constitution, as applied to the states through the Fourteenth Amendment,
prohibiting the imposition of excessive fines. To the extent that Plaintiffs seeks punitive damages
against WCD, these damages are improper, unwarranted, not authorized by law and are
unconstitutional in the context of this litigation. Subjecting WCD to multiple trials and the
multiple imposition of punitive damages for the same course of conduct is a violation of both
substantive and procedural due process under the United States Constitution and the Constitution
of the State of New York. The manner in which punitive damages are demanded or awarded in
cases such as this is in violation of constitutional due process. There is no principle of limitation
on the multiple imposition of punitive damages for a single course of conduct. Furthermore, the
standard governing the award of punitive damages is constitutionally void for vagueness.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Any demand for punitive damages is barred by the “double jeopardy” clause of the Fifth
Amendment to the United States Constitution, as applied to the states through the Fourteenth
Amendment.
FORTIETH AFFIRMATIVE DEFENSE
Relief is barred by virtue of the doctrine of estoppel, waiver or Release.
FORTY-FIRST AFFIRMATIVE DEFENSE
All conduct and activities of WCD alleged in the Complaint, if any, conformed to statutes,
government regulations and industry standards based upon the state of knowledge existing at the
time alleged in the Complaint.
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FORTY-SECOND AFFIRMATIVE DEFENSE
That at all times relevant to this litigation, the agents, servants and/or employees of WCD
utilized proper methods in the conduct of its operations, in conformity with the available
knowledge and research of the scientific and industrial communities.
FORTY-THIRD AFFIRMATIVE DEFENSE
Plaintiffs contributed to or caused his illness, either in whole or in part, by exposure to or
the use of tobacco products and/or other substances, products, medications or drugs.
FORTY-FOURTH AFFIRMATIVE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of arbitration and award.
FORTY-FIFTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiffs lacks the capacity, standing or authority to bring
this action, in whole or in part.
FORTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred and/or preempted, in whole or in part, by federal law.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Liability of Plaintiff’s damages, if any, rests solely with the strict product liability of others.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
Any products to which Plaintiffs claims exposure were designed and manufactured
pursuant to and in accordance with specifications mandated by the premises owners. The
knowledge of the premises owners of any possible health hazards from use of such products was
equal to or superior to that of WCD. Accordingly, WCD is not liable to Plaintiffs.
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FORTY-NINTH AFFIRMATIVE DEFENSE
At all times alleged in the Complaint with respect to claimed exposure to asbestos-
containing products in the State of New York, Plaintiffs were acting and working in employment
covered by the provisions of the New York Workers’ Compensation Act. The remedies under the
Act are exclusive and preclude Plaintiffs from maintaining the causes of action alleged in the
Complaint against WCD.
FIFTIETH AFFIRMATIVE DEFENSE
Any asbestos-containing product to which Plaintiffs may have been exposed, if any, was
mined, milled, manufactured, processed, fabricated, supplied, distributed or sold by persons or
entities other than WCD. WCD cannot be held liable for the use of or exposure to any such
product.
FIFTY-FIRST AFFIRMATIVE DEFENSE
There were no warranties, express or implied, between WCD and Plaintiffs and there has
been no breach of any such warranties by WCD.
FIFTY-SECOND AFFIRMATIVE DEFENSE
Upon information and belief, WCD asserts that it provided Plaintiffs and others who
worked on premises where WCD may have been present with a reasonably safe place to work.
FIFTY-THIRD AFFIRMATIVE DEFENSE
WCD reserves the right to assert any and all affirmative defenses which discovery
proceedings may hereafter reveal to be appropriate.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
All defenses which have been or will be asserted by other defendants and/or any third-party
defendants in this action are adopted and incorporated by reference as if fully set forth at length
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herein as defenses to Plaintiff’s Complaint. In addition, WCD will rely upon any and all other
further defenses which become available or appear during discovery proceedings in this action and
hereby specifically reserves the right to amend its Answer for the purpose of asserting any such
additional affirmative defenses.
FIFTY-FIFTH AFFIRMATIVE DEFENSE
Proceeding in this matter without entities in Bankruptcy relating thereto would be in
violation of WCD’s constitutional rights.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
Any recovery by Plaintiffs herein must be reduced by collateral source payments pursuant
to CPLR Section 4545.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
To the extent that Plaintiffs contributed his/her injuries by the use or misuse, either in whole
or in part, of other substances, products, medications and drugs, including, but not limited to any
tobacco products, any liability should be reduced by the extent of any use and or injuries related
thereto or caused thereby pursuant to the Restatement of Torts (Second) §433A.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
Article 16 of the Civil Practice Law and Rules applies to this action and pursuant to the
law of New York, the liability, if any, of WCD for non-economic loss is not joint and several but
shall be limited to the proportionate share, if any, attributed to WCD.
FIFTY-NINTH AFFIRMATIVE DEFENSE
To the extent Plaintiffs brings suit in a representative capacity, such Plaintiffs has failed to
allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers
and Trusts Law §5-1.1 to 5-4.6.
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SIXTIETH AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over WCD as the summons and complaint were improperly
served.
CROSS-CLAIMS
If Plaintiffs were caused to sustain damages in the manner and at the time and place alleged
by reason other than Plaintiff’s own carelessness, recklessness, negligence and/or acts of omission
or commission and if it is found that WCD is liable to Plaintiffs herein, all of which is specifically
denied, then WCD, on the basis of apportionment of responsibility for the alleged occurrence, is
entitled to indemnification and/or contribution from co-defendants and/or third-party
plaintiffs/defendant and judgment over and against those aforementioned parties, as a result of the
carelessness, recklessness, negligence and/or acts of omission or commission and/or breach of
warranty and/or breach of contract and/or strict or statutorily liability of said parties, their agents,
servants and/or employees for all or part of any verdict or judgment that Plaintiffs may recover
against WCD.
WHEREFORE, WCD requests judgment in its favor dismissing the Complaint and any
and all cross claims, judgment in its favor and against all co-defendants and/or third party
plaintiffs/defendants for all or part of any sum awarded in favor of Plaintiff and against WCD, and
such other and further relief as the Court may deem just and proper.
Dated: March 29, 2023
Yours, etc.,
LANDMAN CORSI BALLAINE & FORD P.C.
By: /s/ Christina J. Holzapfel
Christina J. Holzapfel, Esq.
Attorneys for Defendant
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WHITTAKER, CLARK & DANIELS, INC.
One Gateway Center 22nd Floor
Newark, NJ 07102
(973) 623-2700
-and-
120 Broadway
New York, New York 10271
T: (212) 238-4800
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VERIFICATION
I am an attorney with the firm of Landman Corsi Ballaine & Ford, P.C., attorneys for
Defendant Whittaker, Clark & Daniels, Inc. in the above-captioned action.
I have read the foregoing VERIFIED ANSWER and note the contents thereof, and that the
same is true to my own knowledge, except as to those matters herein stated to be alleged on
information and belief and that as to those matters he believes it to be true. The source of
deponent's information and the grounds of my belief are communications with the Defendant in
this action.
The reason this Verification is made by deponent and not by the Defendant is that
Defendant is a foreign corporation and its principal place of business is not in the State of New
York.
Date: March 29, 2023
By: Christina J. Holzapfel_
Christina J. Holzapfel, Esq.
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FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------- X DAN ALBASRY, as Trustee of the Estate of Index No. 190002/2023 NEWAL AL SAAD, and FIRAS MOHAMMAD, Plaintiffs, WHITTAKER, CLARK & v. DANIELS, INC.’S ANSWER, AFFIRMATIVE BARRETTS MINERALS INC., et al. DEFENSES, AND CROSS- CLAIMS TO PLAINTIFF’S VERIFIED COMPLAINT Defendants. ---------------------------------------------------------------- X Defendant WHITTAKER, CLARK & DANIELS, INC. (“Defendant” or “WCD”) by its attorneys, Landman Corsi Ballaine & Ford P.C., hereby answers Plaintiffs’ Summons and Complaint (“Complaint”) as follows: AS TO THE PARTIES FIRST. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “1” through “18,” and “20” through “21” the Complaint and refers all questions of law to the Court. SECOND. With respect to paragraph “19” Defendant WCD admits that at certain times, WCD was a corporation with its principal place of business outside of the State of New York. WCD ceased doing business in 2004, but remained a viable business entity in New Jersey since then. Defendant denies the balance of the allegations contained in paragraph “19” of the Complaint and refers all questions of law to the Court. THIRD. Defendant WCD denies the truth of each and every allegation contained in paragraphs “22” through “25” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “22” through “25” of the 1 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 Complaint to the extent they pertain to all other named defendants. WITH RESPECT TO THE FIRST CAUSE OF ACTION FOURTH. With respect to the allegations contained in paragraph “26” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through "THIRD” of this Answer with the same force and effect as if fully set forth at length herein. FIFTH. Defendant denies the truth of each and every allegation contained in paragraphs “27” through “42” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “27” through “42” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs. WITH RESPECT TO THE SECOND CAUSE OF ACTION SIXTH. With respect to the allegations contained in paragraph “43” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through "FIFTH” of this Answer with the same force and effect as if fully set forth at length herein. SEVENTH. Defendant denies the truth of each and every allegation contained in paragraphs “44” through “49” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “44” through “49” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs. 2 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 WITH RESPECT TO THE THIRD CAUSE OF ACTION EIGHTH. With respect to the allegations contained in paragraph “50” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through "SEVENTH” of this Answer with the same force and effect as if fully set forth at length herein. NINTH. Defendant denies the truth of each and every allegation contained in paragraphs “51” through “59” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “51” through “59” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs. WITH RESPECT TO THE FOURTH CAUSE OF ACTION TENTH. With respect to the allegations contained in paragraph “60” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through "NINTH” of this Answer with the same force and effect as if fully set forth at length herein. ELEVENTH. Defendant denies the truth of each and every allegation contained in paragraphs “61” through “67” of the Complaint and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “61” through “67” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs. 3 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 WITH RESPECT TO THE FIFTH CAUSE OF ACTION TWELFTH. With respect to the allegations contained in paragraph “68” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through "ELEVENTH” of this Answer with the same force and effect as if fully set forth at length herein. THIRTEENTH. Defendant denies the truth of each and every allegation contained in paragraphs “69” through “75” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “74” through “75” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs. WITH RESPECT TO THE SIXTH CAUSE OF ACTION FOURTEENTH: With respect to the allegations contained in paragraph “76” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through "THIRTEENTH” of this Answer with the same force and effect as if fully set forth at length herein. FIFTEENTH: Defendant denies the truth of each and every allegation contained in paragraphs “77” through “93” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “77” through “93” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs WITH RESPECT TO THE SEVENTH CAUSE OF ACTION SIXTEENTH: With respect to the allegations contained in paragraph “94” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in 4 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 paragraphs "FIRST" through “FIFTEENTH” of this Answer with the same force and effect as if fully set forth at length herein. SEVENTEENTH: Defendant denies the truth of each and every allegation contained in paragraphs “95” through “100” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “95” through “100” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs WITH RESPECT TO THE EIGHTH CAUSE OF ACTION EIGHTEENTH: With respect to the allegations contained in paragraph “101” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through “SEVENTEENTH” of this Answer with the same force and effect as if fully set forth at length herein. NINETEENTH: Defendant denies the truth of each and every allegation contained in paragraphs “102” through “162” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “102” through “162” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs WITH RESPECT TO THE NINTH CAUSE OF ACTION TWENTIETH: With respect to the allegations contained in paragraph “163” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through “NINETEENTH” of this Answer with the same force and effect as if fully set forth at length herein. 5 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 TWENTY-FIRST: Defendant denies the truth of each and every allegation contained in paragraphs “164” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “164” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs WITH RESPECT TO THE TENTH CAUSE OF ACTION TWENTY-SECOND: With respect to the allegations contained in paragraph “165” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through “TWENTY-FIRST” of this Answer with the same force and effect as if fully set forth at length herein. TWENTY-THIRD: Defendant denies the truth of each and every allegation contained in paragraphs “166” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth in paragraphs “166” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs WITH RESPECT TO THE ELEVENTH CAUSE OF ACTION TWENTY-FOURTH: With respect to the allegations contained in paragraph “167” of the Complaint, Defendant repeats, reiterates and realleges each and every response contained in paragraphs "FIRST" through “TWENTY-THIRD” of this Answer with the same force and effect as if fully set forth at length herein. TWENTY-FIFTH: Defendant denies the truth of each and every allegation contained in paragraphs “168” of the Complaint to the extent that they apply to WCD and refers all questions of law to the Court. WCD denies knowledge or information sufficient to form a belief as to the 6 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 truth of each and every allegation set forth in paragraphs “”168” of the Complaint to the extent they pertain to all other named defendants and/or Plaintiffs AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff’s Complaint fails to state a cause of action against WCD upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of this action. THIRD AFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over WCD. FOURTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the doctrine of laches. FIFTH AFFIRMATIVE DEFENSE The venue of this action is improper. SIXTH AFFIRMATIVE DEFENSE The venue of this matter is inconvenient. SEVENTH AFFIRMATIVE DEFENSE This action cannot be maintained as there is another action pending for the same relief. EIGHTH AFFIRMATIVE DEFENSE Any damages, losses, or injuries sustained by Plaintiffs were caused by the acts and/or omissions of persons or entities other than WCD and over whom WCD exercised no control. NINTH AFFIRMATIVE DEFENSE Any claims which Plaintiffs may have against WCD are barred, or, alternatively, must be reduced by virtue of the doctrine of comparative and/or contributory negligence. 7 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 TENTH AFFIRMATIVE DEFENSE Plaintiffs has failed to mitigate damages. ELEVENTH AFFIRMATIVE DEFENSE Any damages allegedly sustained by Plaintiffs were the proximate result of unforeseen and/or unforeseeable negligent, grossly negligent, wanton, reckless conduct or omission of intervening third parties or superseding parties. TWELFTH AFFIRMATIVE DEFENSE The damages allegedly sustained by Plaintiffs were caused, in whole or in part, through the operation of nature. THIRTEENTH AFFIRMATIVE DEFENSE If Plaintiffs sustained damages as alleged, such damages occurred while engaged in activities which he/she entered knowing the hazard, risk and danger of the activities, and he/she assumed the risks incidental to and attendant to those activities. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff’s action are barred pursuant to the applicable statutes of limitations and/or repose. FIFTEENTH AFFIRMATIVE DEFENSE No acts or omissions of WCD proximately caused Plaintiff’s damages. SIXTEENTH AFFIRMATIVE DEFENSE If any damages are recoverable against WCD, the amount of such damages shall be diminished by the liability of others. SEVENTEENTH AFFIRMATIVE DEFENSE WCD claims the benefit of each and every credit or offset by reason of any replacement or indemnification of costs or expenses from any collateral source. 8 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 EIGHTEENTH AFFIRMATIVE DEFENSE The negligence of Plaintiffs, and/or his/her non- WCD employers, proximately caused the alleged injuries and damages and, even if Plaintiffs are entitled to damages, which WCD denies, the damages should be set-off by any collateral source benefit payments received by Plaintiffs. NINETEENTH AFFIRMATIVE DEFENSE Any asbestos-containing products used at Plaintiff’s job locations were used in compliance with specifications, approval or at the instruction of governmental or legislative agencies or bodies. TWENTIETH AFFIRMATIVE DEFENSE Any injuries or damages sustained by Plaintiffs resulted from exposure to asbestos- containing products manufactured and sold in strict compliance with mandatory specifications established by persons or entities other than WCD, including without limitation, agencies, agents and departments of the United States, state or local governments, which persons or entities possessed, at the time of such manufacture and sale, knowledge equal to or greater than that of WCD concerning the properties and characteristics of asbestos and asbestos-containing products. TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiff’s claims are barred in whole or in part by the applicable state-of-the-art defense. TWENTY-SECOND AFFIRMATIVE DEFENSE Any product to which Plaintiffs claims exposure conformed with the existing state-of-the- art, and the alleged hazards or dangers of said products or materials, if any, were created by the conduct of said Plaintiffs and others. TWENTY-THIRD AFFIRMATIVE DEFENSE To the extent that Plaintiff’s claims are based on an alleged breach of warranty, WCD made no express or implied warranties to Plaintiffs, including the warranties of merchantability and fitness for a particular purpose. 9 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 TWENTY-FOURTH AFFIRMATIVE DEFENSE To the extent that Plaintiff’s claims are based on an alleged breach of warranty, Plaintiffs did not rely on any such warranties. TWENTY-FIFTH AFFIRMATIVE DEFENSE Any claims premised upon oral warranties upon which Plaintiffs allegedly relied are barred pursuant to the Statute of Frauds. TWENTY-SIXTH AFFIRMATIVE DEFENSE To the extent Plaintiffs sustained injuries from the use of a product alleged to contain asbestos, which is denied, Plaintiffs, other defendants or other parties not under the control of WCD, misused, abused, misapplied or otherwise mishandled the product alleged to be asbestos material. Therefore, the amount of damages, which may be recoverable, must be diminished by the proportion, which said misuse, abuse, misapplication and mishandling bears to the conduct, which caused the alleged damage or injury. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from WCD and did not either receive or rely upon any representation or warranty allegedly made by WCD. TWENTY-EIGHTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs were exposed to any product containing asbestos as a result of conduct by WCD, which is denied, said exposure was de minimis and not a substantial contributing factor to any injury which Plaintiffs may have developed, and not actionable at law or equity. 10 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 TWENTY-NINTH AFFIRMATIVE DEFENSE Exposure to asbestos fibers attributable to WCD, if any, is so minimal so as to be insufficient to establish to a reasonable degree of probability that said exposure is capable of causing injury or damages and must be considered speculative as matter of law. THIRTIETH AFFIRMATIVE DEFENSE If WCD was on notice of any hazard or defect for which Plaintiffs seek relief, which it denies, Plaintiffs also had such notice and is thereby barred from recovery. THIRTY-FIRST AFFIRMATIVE DEFENSE There is no justiciable issue or controversy. THIRTY-SECOND AFFIRMATIVE DEFENSE The claims for damages have not accrued, are purely speculative, uncertain and contingent. THIRTY-THIRD AFFIRMATIVE DEFENSE None of the alleged injuries or damages were foreseeable at the time of the acts or omissions alleged in Plaintiff’s Complaint. THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred as a matter of public policy. THIRTY-FIFTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred due to their failure to join necessary and indispensable parties. THIRTY-SIXTH AFFIRMATIVE DEFENSE Plaintiff’s action is barred because of the failure to exhaust all administrative remedies. THIRTY-SEVENTH AFFIRMATIVE DEFENSE Any cause of action for exemplary or punitive damages is barred, because such damages are not recoverable or warranted in this action. 11 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 THIRTY-EIGHTH AFFIRMATIVE DEFENSE Any demand for punitive damages is barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, prohibiting the imposition of excessive fines. To the extent that Plaintiffs seeks punitive damages against WCD, these damages are improper, unwarranted, not authorized by law and are unconstitutional in the context of this litigation. Subjecting WCD to multiple trials and the multiple imposition of punitive damages for the same course of conduct is a violation of both substantive and procedural due process under the United States Constitution and the Constitution of the State of New York. The manner in which punitive damages are demanded or awarded in cases such as this is in violation of constitutional due process. There is no principle of limitation on the multiple imposition of punitive damages for a single course of conduct. Furthermore, the standard governing the award of punitive damages is constitutionally void for vagueness. THIRTY-NINTH AFFIRMATIVE DEFENSE Any demand for punitive damages is barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment. FORTIETH AFFIRMATIVE DEFENSE Relief is barred by virtue of the doctrine of estoppel, waiver or Release. FORTY-FIRST AFFIRMATIVE DEFENSE All conduct and activities of WCD alleged in the Complaint, if any, conformed to statutes, government regulations and industry standards based upon the state of knowledge existing at the time alleged in the Complaint. 12 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 FORTY-SECOND AFFIRMATIVE DEFENSE That at all times relevant to this litigation, the agents, servants and/or employees of WCD utilized proper methods in the conduct of its operations, in conformity with the available knowledge and research of the scientific and industrial communities. FORTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs contributed to or caused his illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. FORTY-FOURTH AFFIRMATIVE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of arbitration and award. FORTY-FIFTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiffs lacks the capacity, standing or authority to bring this action, in whole or in part. FORTY-SIXTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred and/or preempted, in whole or in part, by federal law. FORTY-SEVENTH AFFIRMATIVE DEFENSE Liability of Plaintiff’s damages, if any, rests solely with the strict product liability of others. FORTY-EIGHTH AFFIRMATIVE DEFENSE Any products to which Plaintiffs claims exposure were designed and manufactured pursuant to and in accordance with specifications mandated by the premises owners. The knowledge of the premises owners of any possible health hazards from use of such products was equal to or superior to that of WCD. Accordingly, WCD is not liable to Plaintiffs. 13 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 FORTY-NINTH AFFIRMATIVE DEFENSE At all times alleged in the Complaint with respect to claimed exposure to asbestos- containing products in the State of New York, Plaintiffs were acting and working in employment covered by the provisions of the New York Workers’ Compensation Act. The remedies under the Act are exclusive and preclude Plaintiffs from maintaining the causes of action alleged in the Complaint against WCD. FIFTIETH AFFIRMATIVE DEFENSE Any asbestos-containing product to which Plaintiffs may have been exposed, if any, was mined, milled, manufactured, processed, fabricated, supplied, distributed or sold by persons or entities other than WCD. WCD cannot be held liable for the use of or exposure to any such product. FIFTY-FIRST AFFIRMATIVE DEFENSE There were no warranties, express or implied, between WCD and Plaintiffs and there has been no breach of any such warranties by WCD. FIFTY-SECOND AFFIRMATIVE DEFENSE Upon information and belief, WCD asserts that it provided Plaintiffs and others who worked on premises where WCD may have been present with a reasonably safe place to work. FIFTY-THIRD AFFIRMATIVE DEFENSE WCD reserves the right to assert any and all affirmative defenses which discovery proceedings may hereafter reveal to be appropriate. FIFTY-FOURTH AFFIRMATIVE DEFENSE All defenses which have been or will be asserted by other defendants and/or any third-party defendants in this action are adopted and incorporated by reference as if fully set forth at length 14 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 herein as defenses to Plaintiff’s Complaint. In addition, WCD will rely upon any and all other further defenses which become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend its Answer for the purpose of asserting any such additional affirmative defenses. FIFTY-FIFTH AFFIRMATIVE DEFENSE Proceeding in this matter without entities in Bankruptcy relating thereto would be in violation of WCD’s constitutional rights. FIFTY-SIXTH AFFIRMATIVE DEFENSE Any recovery by Plaintiffs herein must be reduced by collateral source payments pursuant to CPLR Section 4545. FIFTY-SEVENTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs contributed his/her injuries by the use or misuse, either in whole or in part, of other substances, products, medications and drugs, including, but not limited to any tobacco products, any liability should be reduced by the extent of any use and or injuries related thereto or caused thereby pursuant to the Restatement of Torts (Second) §433A. FIFTY-EIGHTH AFFIRMATIVE DEFENSE Article 16 of the Civil Practice Law and Rules applies to this action and pursuant to the law of New York, the liability, if any, of WCD for non-economic loss is not joint and several but shall be limited to the proportionate share, if any, attributed to WCD. FIFTY-NINTH AFFIRMATIVE DEFENSE To the extent Plaintiffs brings suit in a representative capacity, such Plaintiffs has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and Trusts Law §5-1.1 to 5-4.6. 15 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 SIXTIETH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over WCD as the summons and complaint were improperly served. CROSS-CLAIMS If Plaintiffs were caused to sustain damages in the manner and at the time and place alleged by reason other than Plaintiff’s own carelessness, recklessness, negligence and/or acts of omission or commission and if it is found that WCD is liable to Plaintiffs herein, all of which is specifically denied, then WCD, on the basis of apportionment of responsibility for the alleged occurrence, is entitled to indemnification and/or contribution from co-defendants and/or third-party plaintiffs/defendant and judgment over and against those aforementioned parties, as a result of the carelessness, recklessness, negligence and/or acts of omission or commission and/or breach of warranty and/or breach of contract and/or strict or statutorily liability of said parties, their agents, servants and/or employees for all or part of any verdict or judgment that Plaintiffs may recover against WCD. WHEREFORE, WCD requests judgment in its favor dismissing the Complaint and any and all cross claims, judgment in its favor and against all co-defendants and/or third party plaintiffs/defendants for all or part of any sum awarded in favor of Plaintiff and against WCD, and such other and further relief as the Court may deem just and proper. Dated: March 29, 2023 Yours, etc., LANDMAN CORSI BALLAINE & FORD P.C. By: /s/ Christina J. Holzapfel Christina J. Holzapfel, Esq. Attorneys for Defendant 16 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 WHITTAKER, CLARK & DANIELS, INC. One Gateway Center 22nd Floor Newark, NJ 07102 (973) 623-2700 -and- 120 Broadway New York, New York 10271 T: (212) 238-4800 17 of 18 FILED: NEW YORK COUNTY CLERK 03/29/2023 04:47 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/29/2023 VERIFICATION I am an attorney with the firm of Landman Corsi Ballaine & Ford, P.C., attorneys for Defendant Whittaker, Clark & Daniels, Inc. in the above-captioned action. I have read the foregoing VERIFIED ANSWER and note the contents thereof, and that the same is true to my own knowledge, except as to those matters herein stated to be alleged on information and belief and that as to those matters he believes it to be true. The source of deponent's information and the grounds of my belief are communications with the Defendant in this action. The reason this Verification is made by deponent and not by the Defendant is that Defendant is a foreign corporation and its principal place of business is not in the State of New York. Date: March 29, 2023 By: Christina J. Holzapfel_ Christina J. Holzapfel, Esq. 18 of 18