Preview
FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IN RE: NEW YORK CITY
ASBESTOS LITIGATION
CARMEL H. MCLOUGHLIN, Index No. 190302/2023
Plaintiff,
VERIFIED ANSWER TO
- against - PLAINTIFF’S FIRST
AMENDED COMPLAINT ON
BRENNTAG NORTH AMERICA INC., et al., BEHALF OF DEFENDANT
COTY INC.
Defendants.
Defendant Coty Inc. (hereinafter “Coty”), for its Verified Answer to Plaintiff’s First
Amended Complaint (hereinafter referred to as “Complaint”), Affirmative Defenses, and Cross
Claims, responds as follows:
1. With respect to the allegations set forth in Paragraph 1 of the Complaint, which
incorporates by reference Maune Raichle Hartley French & Mudd, LLC’s New York City
Asbestos Litigation Standard Complaint No. 2 (hereinafter “Standard Complaint”), Coty denies
each and every allegation contained in the Standard Complaint.
2. Coty denies each and every allegation contained in Paragraphs 2 and 3 of the
Complaint.
3. Coty is without knowledge or information sufficient to form a belief as to the truth
of the allegations set forth in Paragraph 4 of the Complaint.
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WHEREFORE, Defendant Coty denies that Plaintiff is entitled to compensatory damages,
punitive damages, interest, costs, disbursements, fees, and other costs of suit, and further requests
that all Plaintiff’s claims be dismissed with prejudice and any other relief this Honorable Court
deems just.
AFFIRMATIVE DEFENSES
First Affirmative Defense
1. Plaintiff fails to state a claim upon which relief may be granted.
Second Affirmative Defense
2. The claims against Coty are barred by lack of personal jurisdiction.
Third Affirmative Defense
3. The claims against Coty are barred by lack of subject matter jurisdiction.
Fourth Affirmative Defense
4. Any claim or cause of action Plaintiff may have is barred, in whole or in part, by
the doctrines of laches, waiver, collateral estoppel, and/or res judicata.
Fifth Affirmative Defense
5. This action is barred, in whole or in part, by the misuse, abuse, or substantial
modification of the product.
Sixth Affirmative Defense
6. Plaintiff’s claims and causes of action against Defendant are barred, in whole or in
part, because Coty owed no legal duty to Plaintiff or, if it owed such a legal duty, it did not breach
such duty.
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Seventh Affirmative Defense
7. The injuries allegedly sustained by Plaintiff, if any, were proximately caused by
Plaintiff’s free and voluntary acts of knowingly and voluntarily placing themselves in a position
of danger and thus assuming the risks ordinary incident to such acts.
Eighth Affirmative Defense
8. The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of
the risks, hazards, and dangers incident to the occupation of Plaintiff, all of which were open,
obvious and well known to Plaintiff, and the action is barred by Plaintiff’s assumption of the risks
thereof.
Ninth Affirmative Defense
9. The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable
Workers' Compensation statutes and shall have constituted an industrial disability and Plaintiffs’
exclusive remedy, if any, shall lie within the terms and ambit of said statute.
Tenth Affirmative Defense
10. The negligent acts or omissions of Plaintiff were the sole proximate cause or
proximate contributing cause of the injuries and damages of which Plaintiff has complained.
Eleventh Affirmative Defense
11. Plaintiff contributed to her illness, either in whole or in part, by the use of other
substances, products, medications and drugs. To the extent that Plaintiff used any tobacco
products, any damages awarded should be reduced in whole or in part by the amount of their
damages caused by smoking.
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Twelfth Affirmative Defense
12. That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or
contributed to by the fault, neglect, and want of care on the part of Plaintiff or of others for whose
acts or omissions or breach of legal duty Coty is not liable.
Thirteenth Affirmative Defense
13. Plaintiff’s alleged damages were negligently caused in whole or in part by persons,
firms, corporations, or entities other than those parties before this Court and such negligence either
bars or comparatively reduces any possible recovery by Plaintiff.
Fourteenth Affirmative Defense
14. Insofar as the Standard Complaint 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 Plaintiff, including
contributory negligence and assumption of risk, in the proportion which the culpable conduct
attributable to Plaintiff bear to the culpable conduct which caused the damages.
Fifteenth Affirmative Defense
15. If Plaintiff suffered damages as a result of the allegations set forth in the Standard
Complaint, then those damages were the result of intervening or superseding acts or omissions of
persons other than Coty.
Sixteenth Affirmative Defense
16. Punitive damages are inappropriate to serve deterrence and punishment objectives
because those will be fully served by past and future liability for the same conduct at issue in this
case. Moreover, considerations of due process, comity, and state sovereignty bar any attempts to
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punish Coty, except to the extent the alleged conduct has had an impact in this State.
Seventeenth Affirmative Defense
17. Plaintiff has failed to plead the claims of fraud and conspiracy with proper
specificity and, as such, all claims premised on fraud and/or conspiracy must be dismissed.
Eighteenth Affirmative Defense
18. Liability for non-economic loss is limited by the applicable provisions of the Article
16 of the CPLR.
Nineteenth Affirmative Defense
19. To the extent that Coty conformed to the scientific knowledge and research data
available throughout the industry and scientific community, Coty fulfilled its obligations, if any,
herein, and Plaintiff’s claims shall be barred, in whole or in part.
Twentieth Affirmative Defense
20. If Plaintiff’s sustained injuries is a result of exposure to any product manufactured
by Coty, the degree of such damage attributable to Coty's product is negligible, and hence, de
minimis.
Twenty-First Affirmative Defense
21. Coty cannot be held jointly and severally liable for acts or omissions of other
defendants because the acts and omissions of those other defendants were separate and distinct
and the alleged harm caused by each defendant is divisible.
Twenty-Second Affirmative Defense
22. Coty is not liable for any damages alleged to have resulted from exposure to any of
its products which were manufactured pursuant to Government specifications.
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Twenty-Third Affirmative Defense
23. Insofar as Plaintiff relies upon allegations of negligence, breaches of warranties,
fraudulent representations, and violations of obligations of strict product liability as against Coty
prior to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes
of action by reason of the failure to allege the freedom of Plaintiff from contributory negligence
or fault; and that if Plaintiff sustained the injuries, losses, and other damages complained of in the
Standard Complaint, they were caused and brought about, in whole or in part, by the negligence,
carelessness, assumption of risk, fault or other culpable conduct of that Plaintiff.
Twenty-Fourth Affirmative Defense
24. To the extent that Plaintiffs alleges rights assertedly derived from oral warranties
or undertakings on the part of Coty, the Standard Complaint is barred by the applicable statute of
frauds.
Twenty-Fifth Affirmative Defense
25. To the extent Plaintiff alleges a cause of action for express and/or implied
warranties and the alleged breaches thereof, such cause of action is legally insufficient by reason
of the failure to allege privity of contract and/or privity of warranties between Plaintiff and Coty.
Twenty-Sixth Affirmative Defense
26. To the extent that any breach of warranty is alleged, Plaintiff have failed to give
proper and prompt notice of any such breach to Coty.
Twenty-Seventh Affirmative Defense
27. Plaintiff did not directly or indirectly purchase any asbestos-containing products or
materials from Coty, and Plaintiff did not receive or rely upon any representation or warranty
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allegedly made by Coty.
Twenty-Eighth Affirmative Defense
28. The action cannot proceed in the absence of all parties who should be named in
accordance with New York CPLR § 1001.
Twenty-Ninth Affirmative Defense
29. The recoverable damages, if any, should be diminished under the collateral source
rule set forth in New York CPLR § 4545.
Thirtieth Affirmative Defense
30. To the extent that Plaintiff may recover damages from Coty, Coty is entitled to
indemnification and/or contribution, in whole or in part, from each of the other defendants in this
action.
Thirty-First Affirmative Defense
31. If Coty is ultimately found to be liable to Plaintiff, then, pursuant to New York
CPLR Article 16, it shall only be liable for its equitable share of those Plaintiff’s recovery since
any liability which will be found against it will be insufficient to impose joint liability.
Thirty-Second Affirmative Defense
32. Pursuant to New York CPLR Article 16, the liability, if any, of Coty for non-
economic loss shall not exceed its equitable share of liability.
Thirty-Third Affirmative Defense
33. If Plaintiff seeks to hold Coty liable retroactively for conduct that was not
actionable when it occurred, Plaintiff’s claims violate Coty's right to be free from ex post facto
laws and its procedural and substantive due process rights under the United States Constitution.
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Thirty-Fourth Affirmative Defense
34. Any claim for exemplary and/or punitive damages is barred because such damages
are not recoverable or warranted in this action.
Thirty-Fifth Affirmative Defense
35. The imposition of punitive damages on the facts alleged in the Standard Complaint
is barred by the United States Constitution and the Constitution of the State of New York.
Thirty -Sixth Affirmative Defense
36. The law of New York and the Due Process Clause of the Fourteenth Amendment
and the Supremacy Clause of Article VI of the United States Constitutions forbid punishing Coty
simply for lawfully selling a legal product.
Thirty-Seventh Affirmative Defense
37. Plaintiff’s claim for punitive damages cannot be sustained because it would violate
Coty's rights under the Constitutions of the United States and the State of New York, including,
but not limited to:
a. Coty's procedural and substantive due process rights and equal protection rights
under the Fifth and Fourteenth Amendments of the United States Constitution and
under cognate provisions of the New York Constitution;
b. Coty’s rights under the double jeopardy clauses of the Fifth Amendment of the
United States Constitution and Article I, Section 6 of the New York State
Constitution;
c. Coty’s rights to protection from "excessive fines" as provided in the Constitutions
of the United States and the State of New York.
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Thirty -Eighth Affirmative Defense
38. All defenses which have been or will be asserted by other defendants and/or third-
party defendants in this action are adopted and incorporated herein by reference as if fully set forth
at length as defenses to the Standard Complaint. In addition, Coty will rely upon any and all other
further defenses which become available or appear during discovery proceedings in this action and
hereby specifically reserves the right to amend its Answer for purposes of asserting further
additional defenses.
Coty reserves the right to assert any and all other affirmative defenses which
discovery hereafter may reveal to be appropriate.
AS AND FOR A FIRST CROSS-CLAIM
AGAINST ALL OF THE ABOVE-NAMED CO-DEFENDANTS
If Plaintiff sustained damages in the manner alleged in whole or part in the Standard
Complaint, all of which is denied by Coty herein, such damages were caused entirely by reason of
the active and primary negligence and/or other culpable conduct of the co-defendants above-
named and of third parties who are not parties to this action, with no active or primary negligence
or other culpable conduct on the part of Coty Company contributing thereto.
WHEREFORE, Coty demands judgment against its co-defendants and/or third parties not
parties to this action for indemnification in full with respect to any damages, verdict or judgment
which any party to this action may recover against Coty, together with costs of suit and attorneys’
fees.
AS AND FOR A SECOND CROSS-CLAIM
AGAINST ALL OF THE ABOVE-NAMED CO-DEFENDANTS
If Plaintiff sustained damages in the manner alleged in whole or part in the Standard
Complaint, all of which is denied by Coty herein, such damages were caused in whole or in part
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by the negligence or other culpable conduct of the co-defendants above-named and of third parties
who are not parties to this action, with no negligence or culpable conduct on the part of Coty
Company contributing thereto.
WHEREFORE, Coty is entitled to contribution pursuant to Article 14 of the New York
CPLR and to judgment over and against the above-named defendants and/or third parties who are
not parties to this action, who are joint tortfeasors with respect to any damages, liability and
expense on account of any Plaintiff’s demand for judgment, in the amount of any excess paid by
Coty over and above its equitable share of the judgment recovered by Plaintiff determined in
accordance with the relative culpability of each person liable to Plaintiff for contribution.
Dated: Newark, New Jersey
January 29, 2024
GOLDBERG SEGALLA LLP
By: David E. Rutkowski
David E. Rutkowski, Esq.
1037 Raymond Boulevard, Suite 1010
Newark, New Jersey 07102
(973) 681-7000
Attorneys for Defendant Coty Inc.
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VERIFICATION
David E. Rutkowski, being duly sworn herein says:
1. That he is one of the attorneys for the defendant, COTY INC., in this action; that
he has read the Answer to the Complaint and knows the contents thereof; that the same is true to
his own knowledge except as to the matters therein stated to be alleged upon information and belief
and as to those matters, he believes them to be true.
2. That the sources of deponent’s knowledge and the grounds for his belief are from
the correspondence with said defendant, COTY INC., and correspondence and conversations with
the representatives of said defendant, and from reports of investigation of the said defendant’s
representatives, certain of which the correspondence and reports are now in deponent’s possession.
Dated: Newark, New Jersey
January 29, 2024
David E. Rutkowski
David E. Rutkowski
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CERTIFICATION
DAVID E. RUTKOWSKI, an attorney admitted to practice law in the Courts of the State of
New York, affirms under the penalties of perjury, that the following statements are true:
That I am the attorney for Defendant, COTY INC..
That I certify to the best of my knowledge, information and belief, formed after an inquiry
reasonable under the circumstances, that presentation of Verified Answer of Defendant, COTY INC.
and the contentions therein are not frivolous as defined in 22 NYCRR 130-1.1-a, et seq.
Dated: Newark, New Jersey
January 29, 2024
Yours, etc.,
David E. Rutkowski
David E. Rutkowski
GOLDBERG SEGALLA LLP
1037 Raymond Blvd., Suite 1010
Newark, New Jersey 07102
Attorneys for Defendant Coty Inc.
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Preview
FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITIGATION CARMEL H. MCLOUGHLIN, Index No. 190302/2023 Plaintiff, VERIFIED ANSWER TO - against - PLAINTIFF’S FIRST AMENDED COMPLAINT ON BRENNTAG NORTH AMERICA INC., et al., BEHALF OF DEFENDANT COTY INC. Defendants. Defendant Coty Inc. (hereinafter “Coty”), for its Verified Answer to Plaintiff’s First Amended Complaint (hereinafter referred to as “Complaint”), Affirmative Defenses, and Cross Claims, responds as follows: 1. With respect to the allegations set forth in Paragraph 1 of the Complaint, which incorporates by reference Maune Raichle Hartley French & Mudd, LLC’s New York City Asbestos Litigation Standard Complaint No. 2 (hereinafter “Standard Complaint”), Coty denies each and every allegation contained in the Standard Complaint. 2. Coty denies each and every allegation contained in Paragraphs 2 and 3 of the Complaint. 3. Coty is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 4 of the Complaint. 1 1 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 WHEREFORE, Defendant Coty denies that Plaintiff is entitled to compensatory damages, punitive damages, interest, costs, disbursements, fees, and other costs of suit, and further requests that all Plaintiff’s claims be dismissed with prejudice and any other relief this Honorable Court deems just. AFFIRMATIVE DEFENSES First Affirmative Defense 1. Plaintiff fails to state a claim upon which relief may be granted. Second Affirmative Defense 2. The claims against Coty are barred by lack of personal jurisdiction. Third Affirmative Defense 3. The claims against Coty are barred by lack of subject matter jurisdiction. Fourth Affirmative Defense 4. Any claim or cause of action Plaintiff may have is barred, in whole or in part, by the doctrines of laches, waiver, collateral estoppel, and/or res judicata. Fifth Affirmative Defense 5. This action is barred, in whole or in part, by the misuse, abuse, or substantial modification of the product. Sixth Affirmative Defense 6. Plaintiff’s claims and causes of action against Defendant are barred, in whole or in part, because Coty owed no legal duty to Plaintiff or, if it owed such a legal duty, it did not breach such duty. 2 2 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 Seventh Affirmative Defense 7. The injuries allegedly sustained by Plaintiff, if any, were proximately caused by Plaintiff’s free and voluntary acts of knowingly and voluntarily placing themselves in a position of danger and thus assuming the risks ordinary incident to such acts. Eighth Affirmative Defense 8. The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of the risks, hazards, and dangers incident to the occupation of Plaintiff, all of which were open, obvious and well known to Plaintiff, and the action is barred by Plaintiff’s assumption of the risks thereof. Ninth Affirmative Defense 9. The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workers' Compensation statutes and shall have constituted an industrial disability and Plaintiffs’ exclusive remedy, if any, shall lie within the terms and ambit of said statute. Tenth Affirmative Defense 10. The negligent acts or omissions of Plaintiff were the sole proximate cause or proximate contributing cause of the injuries and damages of which Plaintiff has complained. Eleventh Affirmative Defense 11. Plaintiff contributed to her illness, either in whole or in part, by the use of other substances, products, medications and drugs. To the extent that Plaintiff used any tobacco products, any damages awarded should be reduced in whole or in part by the amount of their damages caused by smoking. 3 3 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 Twelfth Affirmative Defense 12. That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or contributed to by the fault, neglect, and want of care on the part of Plaintiff or of others for whose acts or omissions or breach of legal duty Coty is not liable. Thirteenth Affirmative Defense 13. Plaintiff’s alleged damages were negligently caused in whole or in part by persons, firms, corporations, or entities other than those parties before this Court and such negligence either bars or comparatively reduces any possible recovery by Plaintiff. Fourteenth Affirmative Defense 14. Insofar as the Standard Complaint 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 Plaintiff, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiff bear to the culpable conduct which caused the damages. Fifteenth Affirmative Defense 15. If Plaintiff suffered damages as a result of the allegations set forth in the Standard Complaint, then those damages were the result of intervening or superseding acts or omissions of persons other than Coty. Sixteenth Affirmative Defense 16. Punitive damages are inappropriate to serve deterrence and punishment objectives because those will be fully served by past and future liability for the same conduct at issue in this case. Moreover, considerations of due process, comity, and state sovereignty bar any attempts to 4 4 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 punish Coty, except to the extent the alleged conduct has had an impact in this State. Seventeenth Affirmative Defense 17. Plaintiff has failed to plead the claims of fraud and conspiracy with proper specificity and, as such, all claims premised on fraud and/or conspiracy must be dismissed. Eighteenth Affirmative Defense 18. Liability for non-economic loss is limited by the applicable provisions of the Article 16 of the CPLR. Nineteenth Affirmative Defense 19. To the extent that Coty conformed to the scientific knowledge and research data available throughout the industry and scientific community, Coty fulfilled its obligations, if any, herein, and Plaintiff’s claims shall be barred, in whole or in part. Twentieth Affirmative Defense 20. If Plaintiff’s sustained injuries is a result of exposure to any product manufactured by Coty, the degree of such damage attributable to Coty's product is negligible, and hence, de minimis. Twenty-First Affirmative Defense 21. Coty cannot be held jointly and severally liable for acts or omissions of other defendants because the acts and omissions of those other defendants were separate and distinct and the alleged harm caused by each defendant is divisible. Twenty-Second Affirmative Defense 22. Coty is not liable for any damages alleged to have resulted from exposure to any of its products which were manufactured pursuant to Government specifications. 5 5 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 Twenty-Third Affirmative Defense 23. Insofar as Plaintiff relies upon allegations of negligence, breaches of warranties, fraudulent representations, and violations of obligations of strict product liability as against Coty prior to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of action by reason of the failure to allege the freedom of Plaintiff from contributory negligence or fault; and that if Plaintiff sustained the injuries, losses, and other damages complained of in the Standard Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumption of risk, fault or other culpable conduct of that Plaintiff. Twenty-Fourth Affirmative Defense 24. To the extent that Plaintiffs alleges rights assertedly derived from oral warranties or undertakings on the part of Coty, the Standard Complaint is barred by the applicable statute of frauds. Twenty-Fifth Affirmative Defense 25. To the extent Plaintiff alleges a cause of action for express and/or implied warranties and the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between Plaintiff and Coty. Twenty-Sixth Affirmative Defense 26. To the extent that any breach of warranty is alleged, Plaintiff have failed to give proper and prompt notice of any such breach to Coty. Twenty-Seventh Affirmative Defense 27. Plaintiff did not directly or indirectly purchase any asbestos-containing products or materials from Coty, and Plaintiff did not receive or rely upon any representation or warranty 6 6 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 allegedly made by Coty. Twenty-Eighth Affirmative Defense 28. The action cannot proceed in the absence of all parties who should be named in accordance with New York CPLR § 1001. Twenty-Ninth Affirmative Defense 29. The recoverable damages, if any, should be diminished under the collateral source rule set forth in New York CPLR § 4545. Thirtieth Affirmative Defense 30. To the extent that Plaintiff may recover damages from Coty, Coty is entitled to indemnification and/or contribution, in whole or in part, from each of the other defendants in this action. Thirty-First Affirmative Defense 31. If Coty is ultimately found to be liable to Plaintiff, then, pursuant to New York CPLR Article 16, it shall only be liable for its equitable share of those Plaintiff’s recovery since any liability which will be found against it will be insufficient to impose joint liability. Thirty-Second Affirmative Defense 32. Pursuant to New York CPLR Article 16, the liability, if any, of Coty for non- economic loss shall not exceed its equitable share of liability. Thirty-Third Affirmative Defense 33. If Plaintiff seeks to hold Coty liable retroactively for conduct that was not actionable when it occurred, Plaintiff’s claims violate Coty's right to be free from ex post facto laws and its procedural and substantive due process rights under the United States Constitution. 7 7 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 Thirty-Fourth Affirmative Defense 34. Any claim for exemplary and/or punitive damages is barred because such damages are not recoverable or warranted in this action. Thirty-Fifth Affirmative Defense 35. The imposition of punitive damages on the facts alleged in the Standard Complaint is barred by the United States Constitution and the Constitution of the State of New York. Thirty -Sixth Affirmative Defense 36. The law of New York and the Due Process Clause of the Fourteenth Amendment and the Supremacy Clause of Article VI of the United States Constitutions forbid punishing Coty simply for lawfully selling a legal product. Thirty-Seventh Affirmative Defense 37. Plaintiff’s claim for punitive damages cannot be sustained because it would violate Coty's rights under the Constitutions of the United States and the State of New York, including, but not limited to: a. Coty's procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments of the United States Constitution and under cognate provisions of the New York Constitution; b. Coty’s rights under the double jeopardy clauses of the Fifth Amendment of the United States Constitution and Article I, Section 6 of the New York State Constitution; c. Coty’s rights to protection from "excessive fines" as provided in the Constitutions of the United States and the State of New York. 8 8 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 Thirty -Eighth Affirmative Defense 38. All defenses which have been or will be asserted by other defendants and/or third- party defendants in this action are adopted and incorporated herein by reference as if fully set forth at length as defenses to the Standard Complaint. In addition, Coty will rely upon any and all other further defenses which become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend its Answer for purposes of asserting further additional defenses. Coty reserves the right to assert any and all other affirmative defenses which discovery hereafter may reveal to be appropriate. AS AND FOR A FIRST CROSS-CLAIM AGAINST ALL OF THE ABOVE-NAMED CO-DEFENDANTS If Plaintiff sustained damages in the manner alleged in whole or part in the Standard Complaint, all of which is denied by Coty herein, such damages were caused entirely by reason of the active and primary negligence and/or other culpable conduct of the co-defendants above- named and of third parties who are not parties to this action, with no active or primary negligence or other culpable conduct on the part of Coty Company contributing thereto. WHEREFORE, Coty demands judgment against its co-defendants and/or third parties not parties to this action for indemnification in full with respect to any damages, verdict or judgment which any party to this action may recover against Coty, together with costs of suit and attorneys’ fees. AS AND FOR A SECOND CROSS-CLAIM AGAINST ALL OF THE ABOVE-NAMED CO-DEFENDANTS If Plaintiff sustained damages in the manner alleged in whole or part in the Standard Complaint, all of which is denied by Coty herein, such damages were caused in whole or in part 9 9 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 by the negligence or other culpable conduct of the co-defendants above-named and of third parties who are not parties to this action, with no negligence or culpable conduct on the part of Coty Company contributing thereto. WHEREFORE, Coty is entitled to contribution pursuant to Article 14 of the New York CPLR and to judgment over and against the above-named defendants and/or third parties who are not parties to this action, who are joint tortfeasors with respect to any damages, liability and expense on account of any Plaintiff’s demand for judgment, in the amount of any excess paid by Coty over and above its equitable share of the judgment recovered by Plaintiff determined in accordance with the relative culpability of each person liable to Plaintiff for contribution. Dated: Newark, New Jersey January 29, 2024 GOLDBERG SEGALLA LLP By: David E. Rutkowski David E. Rutkowski, Esq. 1037 Raymond Boulevard, Suite 1010 Newark, New Jersey 07102 (973) 681-7000 Attorneys for Defendant Coty Inc. 10 10 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 VERIFICATION David E. Rutkowski, being duly sworn herein says: 1. That he is one of the attorneys for the defendant, COTY INC., in this action; that he has read the Answer to the Complaint and knows the contents thereof; that the same is true to his own knowledge except as to the matters therein stated to be alleged upon information and belief and as to those matters, he believes them to be true. 2. That the sources of deponent’s knowledge and the grounds for his belief are from the correspondence with said defendant, COTY INC., and correspondence and conversations with the representatives of said defendant, and from reports of investigation of the said defendant’s representatives, certain of which the correspondence and reports are now in deponent’s possession. Dated: Newark, New Jersey January 29, 2024 David E. Rutkowski David E. Rutkowski 11 11 of 12 FILED: NEW YORK COUNTY CLERK 01/29/2024 03:09 PM INDEX NO. 190302/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/29/2024 CERTIFICATION DAVID E. RUTKOWSKI, an attorney admitted to practice law in the Courts of the State of New York, affirms under the penalties of perjury, that the following statements are true: That I am the attorney for Defendant, COTY INC.. That I certify to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that presentation of Verified Answer of Defendant, COTY INC. and the contentions therein are not frivolous as defined in 22 NYCRR 130-1.1-a, et seq. Dated: Newark, New Jersey January 29, 2024 Yours, etc., David E. Rutkowski David E. Rutkowski GOLDBERG SEGALLA LLP 1037 Raymond Blvd., Suite 1010 Newark, New Jersey 07102 Attorneys for Defendant Coty Inc. 12 12 of 12