On January 13, 2023 a
Answer
was filed
involving a dispute between
Kathleen Spezio,
Roger Paul Spezio Sr.,
and
3M Company,
Individually And As Successor To Minnesota Mining And Manufacturing Company,
Aii Acquisition Corporation, Llc
Individually And As Successor-In-Interest To Athlone Industries, Inc. And Holland Furnace Company,
Air & Liquid Systems Corporation
As Successor By Merger To Buffalo Pumps, Inc.,
Alcoa Inc.,
Individually And As Successor In Interest To Tilo Roofing Co.,
American Optical Corporation,
A.O. Smith Water Products,
Armstrong International, Inc.,
Atwood & Morrill Co., Inc.
D B A Weir Valves & Controls Usa Inc.,
Aurora Pump Company,
Avco Corporation,
A Textron Lycoming Division, Individually And As Successor To Lycoming Engines F K A Lycoming Manufacturing, Spencer Heater Company, And Spencer Heater Division Of Lycoming,
Bw Ip International Co.,
Formerly Known As Borg Warner Industrial Products Inc., A Former Subsidiary Of And Successor To Borg Warner Corp. And Byron Jackson Pumps,
Carrier Corporation,
Cbs Corporation,
A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Cleaver-Brooks Company
F K A Aqua-Chem, Inc.,
Columbia Boiler Company Of Pottstown,
Compudyne Corporation,
Individually And As Successor To York-Shipley,
Continental Motors Inc.,
Continental Motors Inc.
F K A Teledyne Continental Motors, Inc., Individually And As Successor To Continental Motors Inc. And Continental Motors Company,
Crown Boiler Co.,
Dean Pump Division,
Eaton Aeroquip, Inc.
F K A Aeroquip Corporation,
Ecr International, Inc.,
Individually And As Successor To Dunkirk, Dunkirk Boilers And Utica Boilers And Pennco, Inc.,
Electrolux Home Products, Inc.,
Individually And As Successor To Tappan And Copes-Vulcan Company,
Flowserve Us, Inc.,
Solely As Successor To Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation,
Individually And As Successor To Northern Pump Company, Coffin And Peerless Pump Company,
Gardner Denver, Inc.,
Individually And As Successor To Nash Engineering Company,
Gardner Denver Nash, Llc,
Individually And As Successor To Nash Engineering Company,
General Electric Company,
Goulds Pumps, Inc.,
Grinnell Corporation,
Hoffman New Yorker, Inc.,
Honeywell International, Inc.,
Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp.,
Howden Buffalo, Inc.,
Individually And As Successor-In-Interest To Fb Sturtevant, The Howden Buffalo Group And Buffalo Fan,
International Comfort Products Llc,
Individually And As Successor To Heil Heating And Cooling,
I.T.T. Industries, Inc.,
Individually And As Successor To Bell & Gossett,
Kohler Co.,
Lennox Industries, Inc.,
Individually And As Successor To Lennox Furnace Company And Ducane,
Mario & Dibono Plastering Co. Inc.,
Metropolitan Life Insurance Company,
New Yorker Boiler Company, Inc.,
Parker Hannifin Corporation,
Individually And As Successor By Merger To Stratoflex, Inc.,
Pratt & Whitney Measurement Systems, Inc.,
Pratt & Whitney Power Systems, Inc.,
Redco Corp.
F K A Crane Co.,
Rheem Manufacturing Company, Inc.,
Rockwell Automation, Inc.,
Individually And As Successor To Allen Bradley, Timken Heating Business And S. Co., Inc. F K A Scaife Company, As Successor In Interest To Rockwell Spring & Axle Companys Timken Silent Automatic Division,
Sid Harvey Industries, Inc.,
Sid Harvey Supply, Inc.,
Spence Engineering Company, Inc.,
Spencer Heater
A Lycoming Division Of Avco Corporation,
Spirax Sarco, Inc.,
Taco, Inc.,
Technify Motor
Individually And As Successor To Teledyne Continental Motors, Inc. F K A Continental Motors, Inc. And Continental Motors Company,
Teledyne Technologies Inc.,
Individually And As Successor To Teledyne Continental Motors, Inc. F K A Continental Motors, Inc., Continental Motors Company,
Texaco, Inc.,
Union Carbide Corporation,
United Technologies Corporation,
Individually And As Successor To Pratt & Whitney,
Velan Valve Corp.,
Warren Pumps Llc,
Individually And As Successor To The Quimby Pump Company,
Weil Mclain,
A Division Of Marley-Wylain Company,
William Powell Company,
York International Corporation,
Individually And As Successor To Frick Company,
for Torts - Asbestos
in the District Court of Ulster County.
Preview
FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
ERIC SPEZIO, as Executor of the Estate of ROGER VERIFIED ANSWER TO
PAUL SPEZIO, SR., and KATHLEEN SPEZIO, PLAINTIFF'S FIRST
Individually, AMENDED COMPLAINT
Index Number: EF2023-99
Plaintiff,
vs.
3M COMPANY, et al.
Defendants,
Defendant, HOFFMAN/NEW YORKER, INC., by their attorneys, Hurwitz Fine P. C., as
plaintiffs'
and for its Answer to First Amended Complaint, states upon information and belief, as
follows:
1. Incorporates by reference its Answer to the original Complaint and all subsequent
Answers, as if fully incorporated herein, including all affirmative defenses and all cross-claims,
and further:
plaintiffs'
2. As to the allegations set forth in paragraphs 2-5 of the First Amended
Complaint, denies those allegations as against this answering defendant, and denies knowledge or
information sufficient to form a belief as to the truth of the remainder of the allegations.
plaintiffs'
3. As to the allegations set forth in paragraph 1 of the First Amended
Complaint, this answering defendant repeats, realleges, and reiterates each and every denial
previously stated as if fully set forth at length herein.
plaintiffs'
4. Defendant denies each and every other remaining allegation in the First
Amended Complaint not hereinbefore specifically admitted or otherwise denied.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
5. The Complaint, and each and every allegation considered separately therein, fails
to state a cause of action against this answering defendant, upon which relief can be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
6. The court lacks personal jurisdiction over this answering defendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
7. Plaintiff's claims are time barred, in whole or in part, by reason of the applicable
statutes of limitations.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
8. The causes of action pleaded in the Complaint have not been asserted in a timely
fashion, and plaintiff has neglected same, thus are barred by the doctrine of laches.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
9. In the event that, at the time of the injuries alleged in the Complaint, plaintiff was
employed by this answering defendant, then plaintiff's sole and exclusive remedy is under the
Workers'
Compensation Law of the State of New York.
AS AND FOR
A SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
10. Insofar as the Complaint, and each cause of action considered separately, alleges a
cause of action accruing on or after September 1, 1975 to recover damages for personal injuries,
the amount of damages recoverable thereon must be diminished by reason of the culpable conduct
attributable to the plaintiff, including contributory negligence and assumption of risks, in the
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proportion which the culpable conduct attributable to plaintiff bears to the culpable conduct which
caused the damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
11. Insofar as the Complaint, and each cause of action considered separately, alleges a
cause of action accruing before September 1, 1975, each such cause of action is barred by reason
of the culpable conduct attributable to the plaintiff, including contributory negligence and
assumption of the risk.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
12. In the event 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.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
13. To the extent that the plaintiff was injured as alleged in the Complaint, said injury
was proximately caused by the negligence, breach of warranty and/or strict liability of persons
other than this answering defendant.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE, TIHS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
14. Plaintiff's claims and causes of action are barred, in whole or in part, because this
answering defendant owed no legal duty to the plaintiff, or if it owed a legal duty, it did not breach
that duty.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
15. To the extent that the plaintiff may be able to prove his allegations with respect to
negligence, statutory liability, strict liability, injury and damages, all of which this answering
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defendant denies, such injury and damages were the result of intervening and/or interceding acts
of superseding negligence on the part of persons over whom this answering defendant had no
control or right of control.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
16. Plaintiff's claims and causes of action are barred, in whole or in part, because the
alleged danger of exposure, to the extent that danger existed at all, was open, obvious and well
known to plaintiff.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
17. At all times material hereto, the state of the medical and industrial art was such that
there was no generally accepted or recognized knowledge of any unavoidable, unsafe, inherently
dangerous or hazardous character or nature of thermal insulation products containing asbestos
when used in the manner and purpose described by the plaintiff, therefore, there was no duty for
this answering defendant to know of such character or nature, or to warn the plaintiff or others
similarly situated.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
18. At all times during the conduct of their corporate operations, the agents, servants
and/or employees of this answering defendant used proper methods in connection with their
products in conformity to the available knowledge and research of the scientific and industrial
communities.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, THESE ANSWERING
DEFENDANTS ASSERT, UPON INFORMATION AND BELIEF:
19. Plaintiff's claims and causes of action are barred, in whole or in part, because this
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answering defendant exercised due care and conducted itself in accord with applicable custom and
practice in the industry, and complied with all then-existing federal, state and local statutory and
regulatory requirements.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
20. To the extent that the plaintiff sustained injuries from the use of products alleged
to be connected to this answering defendant, which is denied, said injuries resulted from
unforeseeable misuse of the product by such plaintiff, or by third parties over whom this answering
defendant had no control or right of control.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
21. At all relevant times, this answering defendant exercised due care with respect to
its activities and took reasonable precautions against foreseeable acts or omissions of others.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFOR1VIATION AND BELIEF:
22. To the extent that the plaintiff was exposed to asbestos-containing products alleged
to have been in any way connected to this answering defendant, which is denied, and to the extent
that such alleged products were furnished pursuant to specifications supplied by the plaintiff's
employer, the United States Government or other third parties, then any such product was
furnished in strict conformity with such specifications.
AS AND FOR A NINETEENTH AFFIR1VIATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
23. As to all the causes of action pleaded in the Complaint which are based upon
expressed or implied representations, such causes of action are legally insufficient as against this
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answering defendant as there was no privity of contract between the plaintiff and this answering
defendant.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
24. The plaintiff, neither directly nor indirectly, purchased any asbestos-containing
products or materials from this answering defendant, and plaintiff neither received nor relied upon
any representation allegedly made by this answering defendant.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
25. To the extent that the plaintiff was exposed to any product in any way connected to
this answering defendant, which is denied, said exposure was de minimis and not a substantial
contributing factor to any asbestos-related disease which plaintiff may have developed, thus
requiring dismissal of the Complaint against this answering defendant.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
26. No acts or omissions of this answering defendant proximately caused any damages.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
27. The product allegedly attributed to this answering defendant ("the Product") was
not defective or dangerous at any time when said defendant had possession or control of it.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
28. No implied warranties, including the warranties of merchantability and fitness for
a particular purpose, became a part of the basis of the bargain in the sale of the Product.
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AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
29. This answering defendant is not liable to the plaintiff for the damages alleged in the
Complaint because such damages are excluded and not recoverable under express warranty.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
30. Oral warranties upon which the plaintiff allegedly relied are unavailable as violative
of the provisions of the applicable Statute of Frauds.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT\ ASSERTS, UPON INFORMATION AND BELIEF:
31. To the extent that plaintiff sustained injuries from the use of a product alleged to
contain asbestos, which is denied, plaintiff, other defendants, or other parties not under the control
of this answering defendant misused, abused, misapplied and 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.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
32. In the event it should be proven at the time of trial that all the defendants are subject
to market share liability, then this answering defendant's share of such liability would be of such
a de minimis amount as to make its contribution for damages negligible, and this answering
defendant would be entitled to contribution, either in whole or in part, from co-defendants.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
33. Pursuant to Section 15-108 of the New York General Obligations Laws, plaintiff's
recovery, if any, from this answering defendant must be reduced by the greatest of (1) any amounts
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actually paid by any person or entity for any of the injuries, costs, damages and expenses alleged
in the Complaint; or (2) any amounts stipulated or otherwise agreed to in any release of or covenant
not to sue any person or entity for any injuries, costs, damages or expenses alleged in the
Complaint; or (3) the equitable share of the liability of any person or entity that has received, or
hereafter receives, any release from liability or covenant not to sue with respect to any of the
injuries, costs, damages and expenses alleged in the Complaint.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
34. This answering defendant denies that the asbestos products alleged in plaintiff's
Complaint are products within the meaning and scope of the Restatement of Torts Section 402A
and, as such, the Complaint fails to state a cause of action in strict liability.
AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
35. This answering defendant cannot be held jointly and severally liable for acts and
omissions of other defendants because their acts or omissions were separate and distinct and the
alleged harm is divisible.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
36. This answering defendant had no knowledge or reason to know of any alleged risks
associated with asbestos and/or asbestos-containing products at any time during the periods
complained of.
AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFOR1VIATION AND BELIEF:
37. If this answering defendant was on notice of any hazard or defect for which plaintiff
seeks relief, which this answering defendant denies, plaintiff also had such notice and is thereby
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barred from recovery.
AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
38. Plaintiff's claims are barred because of plaintiff's failure to join necessary and
indispensable parties.
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
39. Plaintiff's causes of action for exemplary or punitive damages are barred because
such damages are not recoverable or warranted in this action.
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
40. Plaintiff's demand for punitive damages is barred by the due process clauses of the
Fourteenth Amendment to the United States Constitution and the New York State Constitution.
AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
41. Plaintiff's 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, and Article 1, Section 5 of the New York State Constitution prohibiting the
imposition of excessive fines.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
42. The recoverable damages, if any, should be diminished under the collateral source
rule, N.Y. CPLR 4545.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
43. The recoverable damages, if any, should be diminished to the extent the plaintiff
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may have failed to mitigate his damages.
AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
jeopardy"
44. Plaintiff's demand for punitive damages is barred by the "double clause
of the Fifth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, and Article 1, Section 6 of the New York State Constitution.
AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
45. To the extent that the Complaint seeks to impose joint and several liability for
allegedly acting in concert as an exception to Article 16 of the CPLR, this answering defendant
asserts that the alleged conduct is protected by the First Amendment to the United States
Constitution and by Article 1, Section 8, of the Constitution of the State
Preview
FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER ERIC SPEZIO, as Executor of the Estate of ROGER VERIFIED ANSWER TO PAUL SPEZIO, SR., and KATHLEEN SPEZIO, PLAINTIFF'S FIRST Individually, AMENDED COMPLAINT Index Number: EF2023-99 Plaintiff, vs. 3M COMPANY, et al. Defendants, Defendant, HOFFMAN/NEW YORKER, INC., by their attorneys, Hurwitz Fine P. C., as plaintiffs' and for its Answer to First Amended Complaint, states upon information and belief, as follows: 1. Incorporates by reference its Answer to the original Complaint and all subsequent Answers, as if fully incorporated herein, including all affirmative defenses and all cross-claims, and further: plaintiffs' 2. As to the allegations set forth in paragraphs 2-5 of the First Amended Complaint, denies those allegations as against this answering defendant, and denies knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations. plaintiffs' 3. As to the allegations set forth in paragraph 1 of the First Amended Complaint, this answering defendant repeats, realleges, and reiterates each and every denial previously stated as if fully set forth at length herein. plaintiffs' 4. Defendant denies each and every other remaining allegation in the First Amended Complaint not hereinbefore specifically admitted or otherwise denied. 1 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 AS AND FOR A FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 5. The Complaint, and each and every allegation considered separately therein, fails to state a cause of action against this answering defendant, upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 6. The court lacks personal jurisdiction over this answering defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 7. Plaintiff's claims are time barred, in whole or in part, by reason of the applicable statutes of limitations. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 8. The causes of action pleaded in the Complaint have not been asserted in a timely fashion, and plaintiff has neglected same, thus are barred by the doctrine of laches. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 9. In the event that, at the time of the injuries alleged in the Complaint, plaintiff was employed by this answering defendant, then plaintiff's sole and exclusive remedy is under the Workers' Compensation Law of the State of New York. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 10. Insofar as the Complaint, and each cause of action considered separately, alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to the plaintiff, including contributory negligence and assumption of risks, in the 2 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 proportion which the culpable conduct attributable to plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 11. Insofar as the Complaint, and each cause of action considered separately, alleges a cause of action accruing before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to the plaintiff, including contributory negligence and assumption of the risk. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 12. In the event 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. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 13. To the extent that the plaintiff was injured as alleged in the Complaint, said injury was proximately caused by the negligence, breach of warranty and/or strict liability of persons other than this answering defendant. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, TIHS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 14. Plaintiff's claims and causes of action are barred, in whole or in part, because this answering defendant owed no legal duty to the plaintiff, or if it owed a legal duty, it did not breach that duty. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 15. To the extent that the plaintiff may be able to prove his allegations with respect to negligence, statutory liability, strict liability, injury and damages, all of which this answering 3 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 defendant denies, such injury and damages were the result of intervening and/or interceding acts of superseding negligence on the part of persons over whom this answering defendant had no control or right of control. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 16. Plaintiff's claims and causes of action are barred, in whole or in part, because the alleged danger of exposure, to the extent that danger existed at all, was open, obvious and well known to plaintiff. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 17. At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable, unsafe, inherently dangerous or hazardous character or nature of thermal insulation products containing asbestos when used in the manner and purpose described by the plaintiff, therefore, there was no duty for this answering defendant to know of such character or nature, or to warn the plaintiff or others similarly situated. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 18. At all times during the conduct of their corporate operations, the agents, servants and/or employees of this answering defendant used proper methods in connection with their products in conformity to the available knowledge and research of the scientific and industrial communities. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ASSERT, UPON INFORMATION AND BELIEF: 19. Plaintiff's claims and causes of action are barred, in whole or in part, because this 4 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 answering defendant exercised due care and conducted itself in accord with applicable custom and practice in the industry, and complied with all then-existing federal, state and local statutory and regulatory requirements. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 20. To the extent that the plaintiff sustained injuries from the use of products alleged to be connected to this answering defendant, which is denied, said injuries resulted from unforeseeable misuse of the product by such plaintiff, or by third parties over whom this answering defendant had no control or right of control. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 21. At all relevant times, this answering defendant exercised due care with respect to its activities and took reasonable precautions against foreseeable acts or omissions of others. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFOR1VIATION AND BELIEF: 22. To the extent that the plaintiff was exposed to asbestos-containing products alleged to have been in any way connected to this answering defendant, which is denied, and to the extent that such alleged products were furnished pursuant to specifications supplied by the plaintiff's employer, the United States Government or other third parties, then any such product was furnished in strict conformity with such specifications. AS AND FOR A NINETEENTH AFFIR1VIATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 23. As to all the causes of action pleaded in the Complaint which are based upon expressed or implied representations, such causes of action are legally insufficient as against this 5 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 answering defendant as there was no privity of contract between the plaintiff and this answering defendant. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 24. The plaintiff, neither directly nor indirectly, purchased any asbestos-containing products or materials from this answering defendant, and plaintiff neither received nor relied upon any representation allegedly made by this answering defendant. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 25. To the extent that the plaintiff was exposed to any product in any way connected to this answering defendant, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which plaintiff may have developed, thus requiring dismissal of the Complaint against this answering defendant. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 26. No acts or omissions of this answering defendant proximately caused any damages. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 27. The product allegedly attributed to this answering defendant ("the Product") was not defective or dangerous at any time when said defendant had possession or control of it. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 28. No implied warranties, including the warranties of merchantability and fitness for a particular purpose, became a part of the basis of the bargain in the sale of the Product. 6 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 29. This answering defendant is not liable to the plaintiff for the damages alleged in the Complaint because such damages are excluded and not recoverable under express warranty. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 30. Oral warranties upon which the plaintiff allegedly relied are unavailable as violative of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT\ ASSERTS, UPON INFORMATION AND BELIEF: 31. To the extent that plaintiff sustained injuries from the use of a product alleged to contain asbestos, which is denied, plaintiff, other defendants, or other parties not under the control of this answering defendant misused, abused, misapplied and 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. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 32. In the event it should be proven at the time of trial that all the defendants are subject to market share liability, then this answering defendant's share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and this answering defendant would be entitled to contribution, either in whole or in part, from co-defendants. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 33. Pursuant to Section 15-108 of the New York General Obligations Laws, plaintiff's recovery, if any, from this answering defendant must be reduced by the greatest of (1) any amounts 7 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 actually paid by any person or entity for any of the injuries, costs, damages and expenses alleged in the Complaint; or (2) any amounts stipulated or otherwise agreed to in any release of or covenant not to sue any person or entity for any injuries, costs, damages or expenses alleged in the Complaint; or (3) the equitable share of the liability of any person or entity that has received, or hereafter receives, any release from liability or covenant not to sue with respect to any of the injuries, costs, damages and expenses alleged in the Complaint. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 34. This answering defendant denies that the asbestos products alleged in plaintiff's Complaint are products within the meaning and scope of the Restatement of Torts Section 402A and, as such, the Complaint fails to state a cause of action in strict liability. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 35. This answering defendant cannot be held jointly and severally liable for acts and omissions of other defendants because their acts or omissions were separate and distinct and the alleged harm is divisible. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 36. This answering defendant had no knowledge or reason to know of any alleged risks associated with asbestos and/or asbestos-containing products at any time during the periods complained of. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFOR1VIATION AND BELIEF: 37. If this answering defendant was on notice of any hazard or defect for which plaintiff seeks relief, which this answering defendant denies, plaintiff also had such notice and is thereby 8 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 barred from recovery. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 38. Plaintiff's claims are barred because of plaintiff's failure to join necessary and indispensable parties. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 39. Plaintiff's causes of action for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 40. Plaintiff's demand for punitive damages is barred by the due process clauses of the Fourteenth Amendment to the United States Constitution and the New York State Constitution. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 41. Plaintiff's 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, and Article 1, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 42. The recoverable damages, if any, should be diminished under the collateral source rule, N.Y. CPLR 4545. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 43. The recoverable damages, if any, should be diminished to the extent the plaintiff 9 of 13 FILED: ULSTER COUNTY CLERK 06/14/2023 10:17 AM INDEX NO. EF2023-99 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 06/14/2023 may have failed to mitigate his damages. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: jeopardy" 44. Plaintiff's demand for punitive damages is barred by the "double clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article 1, Section 6 of the New York State Constitution. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 45. To the extent that the Complaint seeks to impose joint and several liability for allegedly acting in concert as an exception to Article 16 of the CPLR, this answering defendant asserts that the alleged conduct is protected by the First Amendment to the United States Constitution and by Article 1, Section 8, of the Constitution of the State