On January 13, 2023 a
EXHIBIT(S) - B (Motion #22) - 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 11/16/2023 12:39 PM INDEX NO. EF2023-99
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 11/16/2023
Exhibit B
02/06/2023 12:39
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AM INDEX NO. EF2023-99
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
:
ROGER PAUL SPEZIO, SR. and KATHLEEN :
SPEZIO, : Index No. EF2023-99
:
Plaintiffs, :
:
- against - :
:
3M COMPANY, Individually and as Successor to :
Minnesota Mining and Manufacturing Company, et :
al., :
:
Defendants. :
:
VERIFIED ANSWER OF DEFENDANT ROCKWELL AUTOMATION, INC.
(misidentified in the Verified Complaint as “Rockwell Automation, Inc., Individually and
as Successor to Timken Heating Business and S. Co., Inc. f/k/a Scaife Company, as
Successor in Interest to Rockwell Spring & Axle Company’s Timken Silent Automatic
Division”) TO PLAINTIFFS’ VERIFIED COMPLAINT
Defendant, Rockwell Automation, Inc. (misidentified in the Verified Complaint as
“Rockwell Automation, Inc., Individually and as Successor to Timken Heating Business and S.
Co., Inc. f/k/a Scaife Company, as Successor in Interest to Rockwell Spring & Axle Company’s
Timken Silent Automatic Division”) (hereinafter “Defendant”), by its attorneys, McElroy,
Deutsch, Mulvaney & Carpenter, LLP, hereby responds to the Summons and Verified
Complaint, as follows:
THE PARTIES
1. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations contained in Paragraph 1 of the Verified Complaint and, accordingly,
leaves plaintiffs to their proofs.
2. Defendant denies the allegations of Paragraphs 2 of the Verified Complaint to the
extent they are directed towards it.
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3. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations contained in Paragraph 3 of the Verified Complaint and, accordingly,
leaves plaintiffs to their proofs.
4. There are no allegations contained in Paragraph 4 of the Verified Complaint and,
accordingly, no response is made.
5. Defendant denies the allegations of Paragraph 5 of the Verified Complaint to the
extent they are directed towards it and refers all questions of law to the Court. Answering
further, the allegation that Defendant has conducted and/or transacted business in New York is a
question of law to be adjudicated by this Court.
6. The allegations of Paragraphs 6 through 50 of the Verified Complaint are not
directed towards this Defendant, and, accordingly, no response is made to them.
7. Defendant denies the allegations of Paragraph 51 of the Verified Complaint to the
extent they are directed towards it and refers all questions of law to the Court. Answering
further, the allegation that Defendant has conducted and/or transacted business in New York is a
question of law to be adjudicated by this Court.
8. The allegations of Paragraphs 52 through 68 of the Verified Complaint are not
directed towards this Defendant, and, accordingly, no response is made to them.
9. Defendant denies the allegations of Paragraph 69 of the Verified Complaint to the
extent they are directed towards it and refers all questions of law to the Court. Answering
further, the allegation that Defendant has conducted and/or transacted business in New York is a
question of law to be adjudicated by this Court.
10. Defendant denies the allegations of Paragraphs 70 through 76 of the Verified
Complaint to the extent they are directed towards it.
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AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE
11. In response to Paragraph 77 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 76 of the Verified Complaint as if set
forth at length herein.
12. Defendant denies the allegations of Paragraphs 78 through 85 of the Verified
Complaint to the extent they are directed towards it and refers all questions of law to the Court.
AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN
BREACH OF WARRANTY
13. In response to Paragraph 86 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 85 of the Verified Complaint as if set
forth at length herein.
14. Defendant denies the allegations of Paragraphs 87 through 90 of the Verified
Complaint to the extent they are directed towards it and refers all questions of law to the Court.
AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY
15. In response to Paragraph 91 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 90 of the Verified Complaint as if set
forth at length herein.
16. Defendant denies the allegations of Paragraphs 92 through 100 of the Verified
Complaint to the extent they are directed towards it and refers all questions of law to the Court.
AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS
17. In response to Paragraph 101 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 100 of the Verified Complaint as if
set forth at length herein.
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18. Defendant denies the allegations of Paragraphs 102 through 119 of the Verified
Complaint to the extent they are directed towards it and refers all questions of law to the Court.
AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
METROPOLITAN LIFE INSURANCE COMPANY
19. In response to Paragraph 120 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 119 of the Verified Complaint as if
set forth at length herein.
20. The allegations of Paragraphs 121 through 127 of the Verified Complaint are not
directed toward this Defendant and, accordingly, no response is made.
AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
COLLECTIVE LIABILITY/CONCERT OF ACTION
21. In response to Paragraph 128 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 127 of the Verified Complaint as if
set forth at length herein.
22. Defendant denies the allegations of Paragraphs 129 through 143 of the Verified
Complaint to the extent they are directed towards it and refers all questions of law to the Court.
AS AND FOR A SEVENTH CAUSE OF ACTION
AGAINST DEFENDANT CONTRACTORS
23. In response to Paragraph 144 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 143 of the Verified Complaint as if
set forth at length herein.
24. There are no allegations contained in Paragraph 145 of the Verified Complaint
and, accordingly, no response is made.
25. Defendant denies the allegations of Paragraphs 146 through 157 of the Verified
Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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AS AND FOR AN EIGHTH CAUSE OF ACTION
FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
26. In response to Paragraph 158 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 157 of the Verified Complaint as if
set forth at length herein.
27. Defendant denies the allegations of Paragraphs 159 through 173 of the Verified
Complaint to the extent they are directed towards it and refers all questions of law to the Court.
AS AND FOR A NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY
28. In response to Paragraph 174 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 173 of the Verified Complaint as if
set forth at length herein.
29. Defendant denies the allegations of Paragraphs 175 through 186 of the Verified
Complaint to the extent they are directed towards it and refers all questions of law to the Court.
AS AND FOR A TENTH CAUSE OF ACTION PUNITIVE DAMAGES
30. In response to Paragraph 187 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 186 of the Verified Complaint as if
set forth at length herein.
31. Defendant denies the allegations of Paragraph 188 of the Verified Complaint to
the extent they are directed towards it and refers all questions of law to the Court.
AS AND FOR AN ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF
CONSORTIUM
32. In response to Paragraph 189 of the Verified Complaint, Defendant repeats and
reiterates each and every response to Paragraphs 1 through 188 of the Verified Complaint as if
set forth at length herein.
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33. Defendant lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 190 of the Verified Complaint and leaves
plaintiffs to his proofs.
34. Defendant denies the allegations of Paragraph 191 of the Verified Complaint to
the extent they are directed towards it and refers all questions of law to the Court.
AFFIRMATIVE DEFENSES
FIRST SEPARATE DEFENSE
With respect to plaintiffs’ claim of a duty owed to them, this answering Defendant denies
breaching any duty that it may have owed to the plaintiffs.
SECOND SEPARATE DEFENSE
The answering Defendant is free of any and all negligence.
THIRD SEPARATE DEFENSE
Damages, if any, were the result of the sole negligence of the plaintiffs.
FOURTH SEPARATE DEFENSE
Damages, if any, which may have been sustained by the plaintiffs, and for which this
Defendant may become liable, were the result of the actions of third-parties over whom the
answering Defendant exercised no control and, therefore, plaintiffs are barred from any recovery
against the answering Defendant.
FIFTH SEPARATE DEFENSE
Any damages or injuries that may have been sustained by the plaintiffs were the result of
the sole negligence of the remaining defendants and/or third-party defendants.
SIXTH SEPARATE DEFENSE
The answering Defendant did not make, nor did it breach, any warranty to the plaintiffs.
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SEVENTH SEPARATE DEFENSE
While the answering Defendant denies that plaintiffs used its products, Defendant states
that if it is shown that plaintiffs did use its products then the incident and injury alleged in the
Verified Complaint were caused by the unauthorized, unintended and improper use of the
product complained of and as a result there can be no recovery.
EIGHTH SEPARATE DEFENSE
Plaintiffs failed to give the Defendant notice of alleged breach of warranty and damage as
required by law.
NINTH SEPARATE DEFENSE
Any liability that might otherwise be imposed upon the answering Defendant is subject to
reduction or barred by virtue of the doctrine of comparative negligence.
TENTH SEPARATE DEFENSE
The answering Defendant hereby invokes the provisions of Article 16 of the New York
Civil Practice Law and Rules (“CPLR”) and requests that the jury herein be charged accordingly.
ELEVENTH SEPARATE DEFENSE
The action of the plaintiffs is barred by the Statute of Limitations.
TWELFTH SEPARATE DEFENSE
The Verified Complaint fails to state a claim upon which relief can be granted as against
the answering Defendant.
THIRTEENTH SEPARATE DEFENSE
This court lacks jurisdiction over the subject matter.
FOURTEENTH SEPARATE DEFENSE
The court lacks personal jurisdiction of this Defendant.
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FIFTEENTH SEPARATE DEFENSE
The doctrine of strict liability in tort does not apply to this answering Defendant.
SIXTEENTH SEPARATE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, from recovery for some or all of the
claims asserted against the answering Defendant because the fault or negligent acts or omissions
of plaintiff or plaintiffs’ employers caused or contributed to plaintiffs’ alleged injuries.
SEVENTEENTH SEPARATE DEFENSE
The discovery rule does not apply and plaintiffs are barred from maintaining the
within suit.
EIGHTEENTH SEPARATE DEFENSE
Any asbestos or asbestos-containing products that this Defendant may have supplied
were de minimis in light of the total sales by all sources and, therefore, plaintiffs fail to state a
claim against the answering Defendant.
NINETEENTH SEPARATE DEFENSE
Any damages or injuries that may have been suffered by the plaintiffs were not
proximately caused by the conduct of the answering Defendant.
TWENTIETH SEPARATE DEFENSE
The answering Defendant never manufactured, sold or distributed any asbestos-
containing material that caused plaintiffs’ exposure to asbestos.
TWENTY-FIRST SEPARATE DEFENSE
The answering Defendant is an improper party in this litigation.
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TWENTY-SECOND SEPARATE DEFENSE
All claims brought under New York Law, L.1986 c. 682 Section 4 (enacted July 31,
1986) are time-barred in that said statute is in violation of the Constitution of the United States
and the Constitution of the State of New York.
TWENTY-THIRD SEPARATE DEFENSE
The 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.
TWENTY-FOURTH SEPARATE DEFENSE
Plaintiffs’ cause of action for exemplary or punitive damages is barred because such
damages are not recoverable or warranted in this action.
TWENTY-FIFTH SEPARATE DEFENSE
Plaintiffs’ demand for punitive damages is barred by the due process clauses of the
Fourteenth Amendment of the United States Constitution and the New York State Constitution.
TWENTY-SIXTH SEPARATE DEFENSE
Plaintiffs’ 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 I, Section 5 of the New York State Constitution prohibiting the
imposition of excessive fines.
TWENTY-SEVENTH SEPARATE DEFENSE
If plaintiffs sustained injuries in the manner alleged, all of which has been denied by this
Defendant, the liability of this Defendant, if any, shall be limited in accordance with Article 16
of the CPLR.
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TWENTY-EIGHTH SEPARATE DEFENSE
At all times relevant to this litigation, the agents, servants and/or employees of this
Defendant utilized proper methods in the conduct of its operations, in conformity with the
available knowledge and research of the scientific and industrial communities.
TWENTY-NINTH SEPARATE DEFENSE
Plaintiffs contributed to the alleged illness, either in whole or in part, by exposure to or
the use of tobacco products and/or other substances, products, medications or drugs.
THIRTIETH SEPARATE DEFENSE
To the extent either of the plaintiffs herein bring suit in a representative capacity, such
plaintiffs have failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to
New York Estate Powers and Trusts Law § 5-41.
THIRTY-FIRST SEPARATE DEFENSE
The purported service upon the answering Defendant in this action was not proper, and as
a result, this Court lacks personal jurisdiction over the answering Defendant.
THIRTY-SECOND SEPARATE DEFENSE
Upon information and belief, any alleged injuries were caused by a pre-existing or
unrelated medical condition, disease or illness of the plaintiffs.
THIRTY-THIRD SEPARATE DEFENSE
Plaintiffs’ claims are barred by the doctrines of laches, waiver and/or estoppel.
THIRTY-FOURTH SEPARATE DEFENSE
Plaintiffs’ claims are barred because any product allegedly associated with this answering
Defendant was substantially altered after it left the manufacturer’s possession and control.
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THIRTY-FIFTH SEPARATE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, to the extent that plaintiffs failed to
mitigate damages.
THIRTY-SIXTH SEPARATE DEFENSE
In the event that plaintiffs recover a verdict or judgment against the answering Defendant,
then said verdict or judgment must be reduced by those amounts that have been paid or
indemnified or will, with reasonable certainty, be paid or indemnified to the plaintiffs, in whole
or in part, for any past or future claimed economic loss, from any collateral source including
insurance, social security, workers compensation or employees benefit programs.
THIRTY-SEVENTH SEPARATE DEFENSE
The answering Defendant hereby invokes the provisions of the New York CPLR §§ 4545 and
requests that the damage award, if any, in favor of the plaintiffs be reduced accordingly.
THIRTY-EIGHTH SEPARATE DEFENSE
Plaintiffs have improperly joined claims of multiple parties in violation of Articles 6 and
10 of the New York CPLR and all improperly joined or misjoined parties and/or claims must be
severed and tried separately.
THIRTY-NINTH SEPARATE DEFENSE
The answering Defendant hereby invokes the provisions of Article 50-B of the New
York CPLR.
FORTIETH SEPARATE DEFENSE
In the event of a finding of any liability in favor of plaintiffs, or settlement, or judgment
against any Defendant, then the answering Defendant should be held liable, if at all, only for the
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proportion of damages sustained by plaintiffs, if any, as is determined by the jury to be the result
of the allocable percentage of fault or negligence on the part of the answering Defendant.
FORTY-FIRST SEPARATE DEFENSE
To the extent that plaintiffs allege claims based upon oral warranties or representations,
plaintiffs’ claims are barred by the Statute of Frauds.
FORTY-SECOND SEPARATE DEFENSE
The answering Defendant cannot be liable to plaintiffs as alleged in the Verified
Complaint by operation of the doctrines of superseding and/or intervening cause.
FORTY-THIRD SEPARATE DEFENSE
The answering Defendant intends to rely upon such other defenses as may be available or
apparent during discovery proceedings in this case and hereby reserves the right to amend the
Answer to plead said defenses.
FORTY-FOURTH SEPARATE DEFENSE
No acts or omissions of this Defendant proximately caused any damages.
FORTY-FIFTH SEPARATE DEFENSE
Any asbestos-containing product of the answering Defendant that may have been present
at plaintiffs’ job locations were placed in any such buildings upon specification, approval or at
the instruction of governmental or legislative agencies or bodies.
FORTY-SIXTH SEPARATE DEFENSE
All implied warranties, including the warranties of merchantability and fitness for a
particular purpose, were excluded at the time of the sale, if any, of the answering Defendant’s
products.
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FORTY-SEVENTH SEPARATE DEFENSE
No implied warranties, including the warranties of merchantability and fitness for a
particular purpose, became part of the basis of the bargain in the sale, if any, of the answering
Defendant’s products.
FORTY-EIGHTH SEPARATE DEFENSE
The answering Defendant is not liable to plaintiffs for any damages alleged in the
Verified Complaint because such damages are excluded and not recoverable under express
warranty.
FORTY-NINTH SEPARATE DEFENSE
Plaintiffs did not directly or indirectly purchase any asbestos-containing products or
materials from the answering Defendant and plaintiffs did not either receive or rely upon any
representation or warranty allegedly made by the answering Defendant.
FIFTIETH SEPARATE DEFENSE
Finished asbestos-containing products are not unreasonably dangerous as a matter of law.
FIFTY-FIRST SEPARATE DEFENSE
None of the alleged injury or damage was foreseeable at the time of the acts or omissions
complained of in plaintiffs’ Verified Complaint.
FIFTY-SECOND SEPARATE DEFENSE
If a warning was required, the answering Defendant was under no duty to warn
purchasers, those who performed work, or those under their control, where another person or
entity was in a better position to warn; their failure to warn was a superseding proximate cause of
injury.
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FIFTY-THIRD SEPARATE DEFENSE
Plaintiffs were warned of risk of exposure to use of asbestos-containing materials.
FIFTY-FOURTH SEPARATE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of collateral estoppel.
FIFTY-FIFTH SEPARATE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of res judicata.
FIFTY-SIXTH SEPARATE DEFENSE
Pursuant to General Obligations Law Section 15-108, this Defendant is entitled to set-off.
FIFTY-SEVENTH SEPARATE DEFENSE
To the extent the Verified Complaint asserts causes of action for statutory liability based
upon express or implied warranties and/or representations, the allegations as against the
answering Defendant are legally insufficient to establish liability by reason of the failure to
allege privity of contract between the plaintiffs and this answering Defendant.
FIFTY-EIGHTH SEPARATE DEFENSE
Plaintiffs are barred from any recovery against the answering Defendant by the doctrine
of assumption of the risk.
FIFTY-NINTH SEPARATE DEFENSE
Plaintiffs’ employer(s) were sophisticated purchasers and/or users of the products
referred to in plaintiffs’ Verified Complaint upon whom devolved all responsibility for such use.
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SIXTIETH SEPARATE DEFENSE
Plaintiffs’ claims are barred because of plaintiffs’ failure to join necessary and
indispensable parties.
SIXTY-FIRST SEPARATE DEFENSE
No enterprise liability lies against the answering Defendant.
SIXTY-SECOND SEPARATE DEFENSE
The answering Defendant did not act with recklessness, malice or wantonness, and
accordingly, plaintiffs may not recover herein any exemplary or punitive damages against the
answering Defendant.
SIXTY-THIRD SEPARATE DEFENSE
Insofar as plaintiffs allege that this answering Defendant engaged in any willful and
wanton misconduct, or that this Defendant knowingly and/or intentionally sold a product or
products that it knew to be unreasonably dangerous, all of which this Defendant denies, any such
cause of action accrued more than one year prior to the commencement of this lawsuit, thus is
time-barred.
SIXTY-FOURTH SEPARATE DEFENSE
At all times material hereto, the state of the medical and industrial art was such that there
was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently
dangerous, or hazardous character or nature of products containing asbestos when used in the
manner and purpose described by the plaintiffs and, therefore, there was no duty for the
answering Defendant to know of any such character or nature or to warn plaintiffs or others
similarly situated.
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SIXTY-FIFTH SEPARATE DEFENSE
To the extent that the answering Defendant conformed to the scientific knowledge and
research data available through the industry and scientific community, this Defendant has
fulfilled its obligations, if any, herein and plaintiffs’ claims should be barred, in whole or in part.
SIXTY-SIXTH SEPARATE DEFENSE
Plaintiffs have failed to state a cause of action upon which relief may be granted,
inasmuch as plaintiffs are unable to identify the manufacturer(s) of the substance allegedly
causing injury, and relief granted would deprive this Defendant of its right to substantive and
procedural due process of law and equal protection under the law pursuant to the Fourteenth
Amendment of the Constitution of the United States.
SIXTY-SEVENTH SEPARATE DEFENSE
To the extent plaintiffs seek damages attributable to products purportedly manufactured
by the answering Defendant, plaintiffs are not entitled to damages claimed because plaintiffs,
their co-workers and employees misused, mistreated and misapplied the product(s) designated as
asbestos materials as alleged in the Verified Complaint and such misuse, abuse, mistreatment
and/or misapplication attributed to the plaintiffs and/or their co-workers and/or employees
proximately caused the alleged injuries or damages.
SIXTY-EIGHTH SEPARATE DEFENSE
The causes of action asserted herein by the plaintiffs, who are unable to identify the
manufacturer of the alleged injury-causing product(s), fail to state a cause of action upon which
relief can be granted in that plaintiffs have asserted claims for relief which, if granted, would
constitute a taking of private property for public use, without just compensation. Such a taking
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would contravene this answering Defendant’s constitutional rights as preserved for it by the
Fourteenth Amendment to the Constitution of the United States.
SIXTY-NINTH SEPARATE DEFENSE
If it should be proved at the time of trial that any of the answering Defendant’s product(s)
were furnished to plaintiffs’ employer(s) and/or to the United States Government, and that
plaintiffs came into contact with said product(s), which this Defendant specifically denies, then
any product(s) processed, manufactured, produced, constructed, designed, tested, fashioned,
packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream
of commerce by this Defendant that was or may have been furnished to plaintiffs’ employer(s)
and/or to the United States Government, and with which plaintiffs alleges they came, or may
have come into contact, was processed, manufactured, produced, constructed, designed, tested,
fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in
the stream of commerce in strict conformity to the conditions specified, or to specifications
furnished by the plaintiffs’ employer(s) and/or the United States Government.
SEVENTIETH SEPARATE DEFENSE
To the extent that the causes of pled by the plaintiffs herein fail to accord with the
Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiffs’
Verified Complaint is barred.
SEVENTY-FIRST SEPARATE DEFENSE
To the extent that plaintiffs rely on Section 4 of the New York Laws 1986, c.682 as
grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and
deprive(s) the answering Defendant of its constitutional rights and is/are wholly void and
unenforceable.
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SEVENTY-SECOND SEPARATE DEFENSE
To the extent that plaintiffs seek punitive damages against the answering Defendant, and
rely on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving and maintaining
the action, such damages are improper and are not authorized by law since this statute does not
revive any claims for punitive damages, leaving such claims time-barred in their entirety.
SEVENTY-THIRD SEPARATE DEFENSE
These actions and the causes pled by the plaintiffs herein are barred by virtue of Article
1, Section 10 of the United States Constitution.
SEVENTY-FOURTH SEPARATE DEFENSE
Plaintiffs’ demand for punitive damages is barred by the “ex post facto” clause of the
United States Constitution.
SEVENTY-FIFTH SEPARATE DEFENSE
With respect to plaintiffs’ claim of a duty owed to them, this answering Defendant denies
breaching any duty that it may have owed to the plaintiffs.
SEVENTY-SIXTH SEPARATE DEFENSE
The answering Defendant reserves the right to move for a severance of the various
allegations in the plaintiffs’ Verified Complaint.
SEVENTY-SEVENTH AFFIRMATIVE DEFENSE
If, at the time of trial, it is shown that plaintiffs used products manufactured, supplied,
distributed, or sold by the answering Defendant, said products or a portion thereof were supplied
to, by, or on behalf of the United States Government, or if those products were supplied or sold
by the United States Government, the answering Defendant raises any immunity from suit or
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from liability as conferred by the United States Government, and specifically pleads the
government contractor defense.
SEVENTY-EIGHTH AFFIRMATIVE DEFENSE
The answering Defendant incorporates and adopts by reference any and all other and/or
additional defenses, raised or to be raised by any other party, and expressly reserves the right to
amend and supplement its defenses herein to assert additional defenses and to make further
admission upon completion of further investigation and discovery.
SEVENTY-NINTH AFFIRMATIVE DEFENSE
Plaintiff-spouse’s loss of consortium claim is barred as a matter of law because the
alleged asbestos exposure of the plaintiff predates the date of the plaintiff’s and plaintiff-
spouse’s marriage.
EIGHTIETH AFFIRMATIVE DEFENSE
Plaintiffs were aware of the facts, circumstances and conditions existing at the time and
place set forth in the Verified Complaint and voluntarily assumed all risk arising therefrom.
EIGHTY-FIRST AFFIRMATIVE DEFENSE
The answering Defendant purchased or obtained a product from a reputable
manufacturer, and any defect therein was latent and not ascertainable by or upon a reasonable
inspection.
EIGHTY-SECOND AFFIRMATIVE DEFENSE
Any product which may have been supplied by this Defendant was in a sealed container
and was sold without modification, change or alteration of any kind.
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EIGHTY-THIRD AFFIRMATIVE DEFENSE
The plaintiffs’ employer and employers of others are primarily, solely and exclusively
liable for the within claims.
EIGHTY-FOURTH AFFIRMATIVE DEFENSE
Exposure to asbestos fibers attributable to this Defendant is so minimal so as to be
insufficient to establish to a reasonable degree of probability that the products are capable of
causing injury or damages and must be considered speculative as a matter of law.
EIGHTY-F
Preview
FILED: ULSTER COUNTY CLERK 11/16/2023 12:39 PM INDEX NO. EF2023-99 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 11/16/2023 Exhibit B 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER : ROGER PAUL SPEZIO, SR. and KATHLEEN : SPEZIO, : Index No. EF2023-99 : Plaintiffs, : : - against - : : 3M COMPANY, Individually and as Successor to : Minnesota Mining and Manufacturing Company, et : al., : : Defendants. : : VERIFIED ANSWER OF DEFENDANT ROCKWELL AUTOMATION, INC. (misidentified in the Verified Complaint as “Rockwell Automation, Inc., Individually and as Successor to Timken Heating Business and S. Co., Inc. f/k/a Scaife Company, as Successor in Interest to Rockwell Spring & Axle Company’s Timken Silent Automatic Division”) TO PLAINTIFFS’ VERIFIED COMPLAINT Defendant, Rockwell Automation, Inc. (misidentified in the Verified Complaint as “Rockwell Automation, Inc., Individually and as Successor to Timken Heating Business and S. Co., Inc. f/k/a Scaife Company, as Successor in Interest to Rockwell Spring & Axle Company’s Timken Silent Automatic Division”) (hereinafter “Defendant”), by its attorneys, McElroy, Deutsch, Mulvaney & Carpenter, LLP, hereby responds to the Summons and Verified Complaint, as follows: THE PARTIES 1. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 1 of the Verified Complaint and, accordingly, leaves plaintiffs to their proofs. 2. Defendant denies the allegations of Paragraphs 2 of the Verified Complaint to the extent they are directed towards it. 4359132 1 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 3. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraph 3 of the Verified Complaint and, accordingly, leaves plaintiffs to their proofs. 4. There are no allegations contained in Paragraph 4 of the Verified Complaint and, accordingly, no response is made. 5. Defendant denies the allegations of Paragraph 5 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. Answering further, the allegation that Defendant has conducted and/or transacted business in New York is a question of law to be adjudicated by this Court. 6. The allegations of Paragraphs 6 through 50 of the Verified Complaint are not directed towards this Defendant, and, accordingly, no response is made to them. 7. Defendant denies the allegations of Paragraph 51 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. Answering further, the allegation that Defendant has conducted and/or transacted business in New York is a question of law to be adjudicated by this Court. 8. The allegations of Paragraphs 52 through 68 of the Verified Complaint are not directed towards this Defendant, and, accordingly, no response is made to them. 9. Defendant denies the allegations of Paragraph 69 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. Answering further, the allegation that Defendant has conducted and/or transacted business in New York is a question of law to be adjudicated by this Court. 10. Defendant denies the allegations of Paragraphs 70 through 76 of the Verified Complaint to the extent they are directed towards it. 4737749 2 2 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE 11. In response to Paragraph 77 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 76 of the Verified Complaint as if set forth at length herein. 12. Defendant denies the allegations of Paragraphs 78 through 85 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY 13. In response to Paragraph 86 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 85 of the Verified Complaint as if set forth at length herein. 14. Defendant denies the allegations of Paragraphs 87 through 90 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 15. In response to Paragraph 91 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 90 of the Verified Complaint as if set forth at length herein. 16. Defendant denies the allegations of Paragraphs 92 through 100 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS 17. In response to Paragraph 101 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 100 of the Verified Complaint as if set forth at length herein. 4737749 3 3 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 18. Defendant denies the allegations of Paragraphs 102 through 119 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY 19. In response to Paragraph 120 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 119 of the Verified Complaint as if set forth at length herein. 20. The allegations of Paragraphs 121 through 127 of the Verified Complaint are not directed toward this Defendant and, accordingly, no response is made. AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION 21. In response to Paragraph 128 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 127 of the Verified Complaint as if set forth at length herein. 22. Defendant denies the allegations of Paragraphs 129 through 143 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS 23. In response to Paragraph 144 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 143 of the Verified Complaint as if set forth at length herein. 24. There are no allegations contained in Paragraph 145 of the Verified Complaint and, accordingly, no response is made. 25. Defendant denies the allegations of Paragraphs 146 through 157 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. 4737749 4 4 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 AS AND FOR AN EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS 26. In response to Paragraph 158 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 157 of the Verified Complaint as if set forth at length herein. 27. Defendant denies the allegations of Paragraphs 159 through 173 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AS AND FOR A NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY 28. In response to Paragraph 174 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 173 of the Verified Complaint as if set forth at length herein. 29. Defendant denies the allegations of Paragraphs 175 through 186 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AS AND FOR A TENTH CAUSE OF ACTION PUNITIVE DAMAGES 30. In response to Paragraph 187 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 186 of the Verified Complaint as if set forth at length herein. 31. Defendant denies the allegations of Paragraph 188 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AS AND FOR AN ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF CONSORTIUM 32. In response to Paragraph 189 of the Verified Complaint, Defendant repeats and reiterates each and every response to Paragraphs 1 through 188 of the Verified Complaint as if set forth at length herein. 4737749 5 5 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 33. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 190 of the Verified Complaint and leaves plaintiffs to his proofs. 34. Defendant denies the allegations of Paragraph 191 of the Verified Complaint to the extent they are directed towards it and refers all questions of law to the Court. AFFIRMATIVE DEFENSES FIRST SEPARATE DEFENSE With respect to plaintiffs’ claim of a duty owed to them, this answering Defendant denies breaching any duty that it may have owed to the plaintiffs. SECOND SEPARATE DEFENSE The answering Defendant is free of any and all negligence. THIRD SEPARATE DEFENSE Damages, if any, were the result of the sole negligence of the plaintiffs. FOURTH SEPARATE DEFENSE Damages, if any, which may have been sustained by the plaintiffs, and for which this Defendant may become liable, were the result of the actions of third-parties over whom the answering Defendant exercised no control and, therefore, plaintiffs are barred from any recovery against the answering Defendant. FIFTH SEPARATE DEFENSE Any damages or injuries that may have been sustained by the plaintiffs were the result of the sole negligence of the remaining defendants and/or third-party defendants. SIXTH SEPARATE DEFENSE The answering Defendant did not make, nor did it breach, any warranty to the plaintiffs. 4737749 6 6 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 SEVENTH SEPARATE DEFENSE While the answering Defendant denies that plaintiffs used its products, Defendant states that if it is shown that plaintiffs did use its products then the incident and injury alleged in the Verified Complaint were caused by the unauthorized, unintended and improper use of the product complained of and as a result there can be no recovery. EIGHTH SEPARATE DEFENSE Plaintiffs failed to give the Defendant notice of alleged breach of warranty and damage as required by law. NINTH SEPARATE DEFENSE Any liability that might otherwise be imposed upon the answering Defendant is subject to reduction or barred by virtue of the doctrine of comparative negligence. TENTH SEPARATE DEFENSE The answering Defendant hereby invokes the provisions of Article 16 of the New York Civil Practice Law and Rules (“CPLR”) and requests that the jury herein be charged accordingly. ELEVENTH SEPARATE DEFENSE The action of the plaintiffs is barred by the Statute of Limitations. TWELFTH SEPARATE DEFENSE The Verified Complaint fails to state a claim upon which relief can be granted as against the answering Defendant. THIRTEENTH SEPARATE DEFENSE This court lacks jurisdiction over the subject matter. FOURTEENTH SEPARATE DEFENSE The court lacks personal jurisdiction of this Defendant. 4737749 7 7 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 FIFTEENTH SEPARATE DEFENSE The doctrine of strict liability in tort does not apply to this answering Defendant. SIXTEENTH SEPARATE DEFENSE Plaintiffs’ claims are barred, in whole or in part, from recovery for some or all of the claims asserted against the answering Defendant because the fault or negligent acts or omissions of plaintiff or plaintiffs’ employers caused or contributed to plaintiffs’ alleged injuries. SEVENTEENTH SEPARATE DEFENSE The discovery rule does not apply and plaintiffs are barred from maintaining the within suit. EIGHTEENTH SEPARATE DEFENSE Any asbestos or asbestos-containing products that this Defendant may have supplied were de minimis in light of the total sales by all sources and, therefore, plaintiffs fail to state a claim against the answering Defendant. NINETEENTH SEPARATE DEFENSE Any damages or injuries that may have been suffered by the plaintiffs were not proximately caused by the conduct of the answering Defendant. TWENTIETH SEPARATE DEFENSE The answering Defendant never manufactured, sold or distributed any asbestos- containing material that caused plaintiffs’ exposure to asbestos. TWENTY-FIRST SEPARATE DEFENSE The answering Defendant is an improper party in this litigation. 4737749 8 8 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 TWENTY-SECOND SEPARATE DEFENSE All claims brought under New York Law, L.1986 c. 682 Section 4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. TWENTY-THIRD SEPARATE DEFENSE The 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. TWENTY-FOURTH SEPARATE DEFENSE Plaintiffs’ cause of action for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. TWENTY-FIFTH SEPARATE DEFENSE Plaintiffs’ demand for punitive damages is barred by the due process clauses of the Fourteenth Amendment of the United States Constitution and the New York State Constitution. TWENTY-SIXTH SEPARATE DEFENSE Plaintiffs’ 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 I, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. TWENTY-SEVENTH SEPARATE DEFENSE If plaintiffs sustained injuries in the manner alleged, all of which has been denied by this Defendant, the liability of this Defendant, if any, shall be limited in accordance with Article 16 of the CPLR. 4737749 9 9 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 TWENTY-EIGHTH SEPARATE DEFENSE At all times relevant to this litigation, the agents, servants and/or employees of this Defendant utilized proper methods in the conduct of its operations, in conformity with the available knowledge and research of the scientific and industrial communities. TWENTY-NINTH SEPARATE DEFENSE Plaintiffs contributed to the alleged illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. THIRTIETH SEPARATE DEFENSE To the extent either of the plaintiffs herein bring suit in a representative capacity, such plaintiffs have failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and Trusts Law § 5-41. THIRTY-FIRST SEPARATE DEFENSE The purported service upon the answering Defendant in this action was not proper, and as a result, this Court lacks personal jurisdiction over the answering Defendant. THIRTY-SECOND SEPARATE DEFENSE Upon information and belief, any alleged injuries were caused by a pre-existing or unrelated medical condition, disease or illness of the plaintiffs. THIRTY-THIRD SEPARATE DEFENSE Plaintiffs’ claims are barred by the doctrines of laches, waiver and/or estoppel. THIRTY-FOURTH SEPARATE DEFENSE Plaintiffs’ claims are barred because any product allegedly associated with this answering Defendant was substantially altered after it left the manufacturer’s possession and control. 4737749 10 10 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 THIRTY-FIFTH SEPARATE DEFENSE Plaintiffs’ claims are barred, in whole or in part, to the extent that plaintiffs failed to mitigate damages. THIRTY-SIXTH SEPARATE DEFENSE In the event that plaintiffs recover a verdict or judgment against the answering Defendant, then said verdict or judgment must be reduced by those amounts that have been paid or indemnified or will, with reasonable certainty, be paid or indemnified to the plaintiffs, in whole or in part, for any past or future claimed economic loss, from any collateral source including insurance, social security, workers compensation or employees benefit programs. THIRTY-SEVENTH SEPARATE DEFENSE The answering Defendant hereby invokes the provisions of the New York CPLR §§ 4545 and requests that the damage award, if any, in favor of the plaintiffs be reduced accordingly. THIRTY-EIGHTH SEPARATE DEFENSE Plaintiffs have improperly joined claims of multiple parties in violation of Articles 6 and 10 of the New York CPLR and all improperly joined or misjoined parties and/or claims must be severed and tried separately. THIRTY-NINTH SEPARATE DEFENSE The answering Defendant hereby invokes the provisions of Article 50-B of the New York CPLR. FORTIETH SEPARATE DEFENSE In the event of a finding of any liability in favor of plaintiffs, or settlement, or judgment against any Defendant, then the answering Defendant should be held liable, if at all, only for the 4737749 11 11 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 proportion of damages sustained by plaintiffs, if any, as is determined by the jury to be the result of the allocable percentage of fault or negligence on the part of the answering Defendant. FORTY-FIRST SEPARATE DEFENSE To the extent that plaintiffs allege claims based upon oral warranties or representations, plaintiffs’ claims are barred by the Statute of Frauds. FORTY-SECOND SEPARATE DEFENSE The answering Defendant cannot be liable to plaintiffs as alleged in the Verified Complaint by operation of the doctrines of superseding and/or intervening cause. FORTY-THIRD SEPARATE DEFENSE The answering Defendant intends to rely upon such other defenses as may be available or apparent during discovery proceedings in this case and hereby reserves the right to amend the Answer to plead said defenses. FORTY-FOURTH SEPARATE DEFENSE No acts or omissions of this Defendant proximately caused any damages. FORTY-FIFTH SEPARATE DEFENSE Any asbestos-containing product of the answering Defendant that may have been present at plaintiffs’ job locations were placed in any such buildings upon specification, approval or at the instruction of governmental or legislative agencies or bodies. FORTY-SIXTH SEPARATE DEFENSE All implied warranties, including the warranties of merchantability and fitness for a particular purpose, were excluded at the time of the sale, if any, of the answering Defendant’s products. 4737749 12 12 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 FORTY-SEVENTH SEPARATE DEFENSE No implied warranties, including the warranties of merchantability and fitness for a particular purpose, became part of the basis of the bargain in the sale, if any, of the answering Defendant’s products. FORTY-EIGHTH SEPARATE DEFENSE The answering Defendant is not liable to plaintiffs for any damages alleged in the Verified Complaint because such damages are excluded and not recoverable under express warranty. FORTY-NINTH SEPARATE DEFENSE Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from the answering Defendant and plaintiffs did not either receive or rely upon any representation or warranty allegedly made by the answering Defendant. FIFTIETH SEPARATE DEFENSE Finished asbestos-containing products are not unreasonably dangerous as a matter of law. FIFTY-FIRST SEPARATE DEFENSE None of the alleged injury or damage was foreseeable at the time of the acts or omissions complained of in plaintiffs’ Verified Complaint. FIFTY-SECOND SEPARATE DEFENSE If a warning was required, the answering Defendant was under no duty to warn purchasers, those who performed work, or those under their control, where another person or entity was in a better position to warn; their failure to warn was a superseding proximate cause of injury. 4737749 13 13 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 FIFTY-THIRD SEPARATE DEFENSE Plaintiffs were warned of risk of exposure to use of asbestos-containing materials. FIFTY-FOURTH SEPARATE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of collateral estoppel. FIFTY-FIFTH SEPARATE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of res judicata. FIFTY-SIXTH SEPARATE DEFENSE Pursuant to General Obligations Law Section 15-108, this Defendant is entitled to set-off. FIFTY-SEVENTH SEPARATE DEFENSE To the extent the Verified Complaint asserts causes of action for statutory liability based upon express or implied warranties and/or representations, the allegations as against the answering Defendant are legally insufficient to establish liability by reason of the failure to allege privity of contract between the plaintiffs and this answering Defendant. FIFTY-EIGHTH SEPARATE DEFENSE Plaintiffs are barred from any recovery against the answering Defendant by the doctrine of assumption of the risk. FIFTY-NINTH SEPARATE DEFENSE Plaintiffs’ employer(s) were sophisticated purchasers and/or users of the products referred to in plaintiffs’ Verified Complaint upon whom devolved all responsibility for such use. 4737749 14 14 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 SIXTIETH SEPARATE DEFENSE Plaintiffs’ claims are barred because of plaintiffs’ failure to join necessary and indispensable parties. SIXTY-FIRST SEPARATE DEFENSE No enterprise liability lies against the answering Defendant. SIXTY-SECOND SEPARATE DEFENSE The answering Defendant did not act with recklessness, malice or wantonness, and accordingly, plaintiffs may not recover herein any exemplary or punitive damages against the answering Defendant. SIXTY-THIRD SEPARATE DEFENSE Insofar as plaintiffs allege that this answering Defendant engaged in any willful and wanton misconduct, or that this Defendant knowingly and/or intentionally sold a product or products that it knew to be unreasonably dangerous, all of which this Defendant denies, any such cause of action accrued more than one year prior to the commencement of this lawsuit, thus is time-barred. SIXTY-FOURTH SEPARATE DEFENSE At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently dangerous, or hazardous character or nature of products containing asbestos when used in the manner and purpose described by the plaintiffs and, therefore, there was no duty for the answering Defendant to know of any such character or nature or to warn plaintiffs or others similarly situated. 4737749 15 15 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 SIXTY-FIFTH SEPARATE DEFENSE To the extent that the answering Defendant conformed to the scientific knowledge and research data available through the industry and scientific community, this Defendant has fulfilled its obligations, if any, herein and plaintiffs’ claims should be barred, in whole or in part. SIXTY-SIXTH SEPARATE DEFENSE Plaintiffs have failed to state a cause of action upon which relief may be granted, inasmuch as plaintiffs are unable to identify the manufacturer(s) of the substance allegedly causing injury, and relief granted would deprive this Defendant of its right to substantive and procedural due process of law and equal protection under the law pursuant to the Fourteenth Amendment of the Constitution of the United States. SIXTY-SEVENTH SEPARATE DEFENSE To the extent plaintiffs seek damages attributable to products purportedly manufactured by the answering Defendant, plaintiffs are not entitled to damages claimed because plaintiffs, their co-workers and employees misused, mistreated and misapplied the product(s) designated as asbestos materials as alleged in the Verified Complaint and such misuse, abuse, mistreatment and/or misapplication attributed to the plaintiffs and/or their co-workers and/or employees proximately caused the alleged injuries or damages. SIXTY-EIGHTH SEPARATE DEFENSE The causes of action asserted herein by the plaintiffs, who are unable to identify the manufacturer of the alleged injury-causing product(s), fail to state a cause of action upon which relief can be granted in that plaintiffs have asserted claims for relief which, if granted, would constitute a taking of private property for public use, without just compensation. Such a taking 4737749 16 16 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 would contravene this answering Defendant’s constitutional rights as preserved for it by the Fourteenth Amendment to the Constitution of the United States. SIXTY-NINTH SEPARATE DEFENSE If it should be proved at the time of trial that any of the answering Defendant’s product(s) were furnished to plaintiffs’ employer(s) and/or to the United States Government, and that plaintiffs came into contact with said product(s), which this Defendant specifically denies, then any product(s) processed, manufactured, produced, constructed, designed, tested, fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream of commerce by this Defendant that was or may have been furnished to plaintiffs’ employer(s) and/or to the United States Government, and with which plaintiffs alleges they came, or may have come into contact, was processed, manufactured, produced, constructed, designed, tested, fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream of commerce in strict conformity to the conditions specified, or to specifications furnished by the plaintiffs’ employer(s) and/or the United States Government. SEVENTIETH SEPARATE DEFENSE To the extent that the causes of pled by the plaintiffs herein fail to accord with the Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiffs’ Verified Complaint is barred. SEVENTY-FIRST SEPARATE DEFENSE To the extent that plaintiffs rely on Section 4 of the New York Laws 1986, c.682 as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive(s) the answering Defendant of its constitutional rights and is/are wholly void and unenforceable. 4737749 17 17 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 SEVENTY-SECOND SEPARATE DEFENSE To the extent that plaintiffs seek punitive damages against the answering Defendant, and rely on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving and maintaining the action, such damages are improper and are not authorized by law since this statute does not revive any claims for punitive damages, leaving such claims time-barred in their entirety. SEVENTY-THIRD SEPARATE DEFENSE These actions and the causes pled by the plaintiffs herein are barred by virtue of Article 1, Section 10 of the United States Constitution. SEVENTY-FOURTH SEPARATE DEFENSE Plaintiffs’ demand for punitive damages is barred by the “ex post facto” clause of the United States Constitution. SEVENTY-FIFTH SEPARATE DEFENSE With respect to plaintiffs’ claim of a duty owed to them, this answering Defendant denies breaching any duty that it may have owed to the plaintiffs. SEVENTY-SIXTH SEPARATE DEFENSE The answering Defendant reserves the right to move for a severance of the various allegations in the plaintiffs’ Verified Complaint. SEVENTY-SEVENTH AFFIRMATIVE DEFENSE If, at the time of trial, it is shown that plaintiffs used products manufactured, supplied, distributed, or sold by the answering Defendant, said products or a portion thereof were supplied to, by, or on behalf of the United States Government, or if those products were supplied or sold by the United States Government, the answering Defendant raises any immunity from suit or 4737749 18 18 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 from liability as conferred by the United States Government, and specifically pleads the government contractor defense. SEVENTY-EIGHTH AFFIRMATIVE DEFENSE The answering Defendant incorporates and adopts by reference any and all other and/or additional defenses, raised or to be raised by any other party, and expressly reserves the right to amend and supplement its defenses herein to assert additional defenses and to make further admission upon completion of further investigation and discovery. SEVENTY-NINTH AFFIRMATIVE DEFENSE Plaintiff-spouse’s loss of consortium claim is barred as a matter of law because the alleged asbestos exposure of the plaintiff predates the date of the plaintiff’s and plaintiff- spouse’s marriage. EIGHTIETH AFFIRMATIVE DEFENSE Plaintiffs were aware of the facts, circumstances and conditions existing at the time and place set forth in the Verified Complaint and voluntarily assumed all risk arising therefrom. EIGHTY-FIRST AFFIRMATIVE DEFENSE The answering Defendant purchased or obtained a product from a reputable manufacturer, and any defect therein was latent and not ascertainable by or upon a reasonable inspection. EIGHTY-SECOND AFFIRMATIVE DEFENSE Any product which may have been supplied by this Defendant was in a sealed container and was sold without modification, change or alteration of any kind. 4737749 19 19 of 24 02/06/2023 12:39 FILED: ULSTER COUNTY CLERK 11/16/2023 10:34 PM AM INDEX NO. EF2023-99 35 NYSCEF DOC. NO. 225 02/06/2023 RECEIVED NYSCEF: 11/16/2023 EIGHTY-THIRD AFFIRMATIVE DEFENSE The plaintiffs’ employer and employers of others are primarily, solely and exclusively liable for the within claims. EIGHTY-FOURTH AFFIRMATIVE DEFENSE Exposure to asbestos fibers attributable to this Defendant is so minimal so as to be insufficient to establish to a reasonable degree of probability that the products are capable of causing injury or damages and must be considered speculative as a matter of law. EIGHTY-F