Preview
FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
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WAYNE VAN AMBURGH and JUDITH VAN VERIFIED ANSWER OF
AMBURGH, DEFENDANT JENKINS BROS.
Plaintiffs, Index No.: EF2023-275073
-against-
AMCHEM PRODUCTS, INC., et al.,
Defendants.
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Defendant JENKINS BROS. by its attorneys Clyde & Co US LLP, answering the
Plaintiffs’ Verified Complaint (the “Complaint”) upon information and belief alleges as follows:
1. Defendant JENKINS BROS. denies any knowledge or information sufficient to
form a belief as to the truth of the allegations in paragraph 1 of the Complaint.
2. Paragraph 2 of the Complaint does not contain any substantive allegations.
3. Defendant JENKINS BROS. denies each and every allegation contained in
paragraphs 3 through 17 of the Complaint insofar as it relates to this Defendant, and refers all
questions of law to this Court for determination. Defendant JENKINS BROS. denies any
knowledge or information sufficient to form a belief as to the truth of each and every allegation
contained in paragraphs 3 through 17 of the Complaint as it pertains to the remaining defendants
in the Complaint.
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
AGAINST ALL DEFENDANTS
4. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and
every answer to each and every allegation contained in paragraphs 1 through 17 of the Complaint
with the same force and effect as if fully set forth at length herein in answer to paragraph 18 of
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the Complaint.
5. Defendant JENKINS BROS. denies each and every allegation contained in
paragraphs 19 through 37 of the Complaint insofar as it relates to this Defendant, and refers all
questions of law to this Court for determination. Defendant JENKINS BROS. denies any
knowledge or information sufficient to form a belief as to as to the truth of each and every
allegation contained in paragraphs 19 through 37 of the Complaint as it pertains to the remaining
defendants in the Complaint.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
AGAINST ALL DEFENDANTS
6. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and
every answer to each and every allegation contained in paragraphs 1 through 37 of the Complaint
with the same force and effect as if fully set forth at length herein in answer to paragraph 38 of
the Complaint.
7. Defendant JENKINS BROS. denies each and every allegation contained in
paragraphs 39 through 43 of the Complaint insofar as it relates to this Defendant, and refers all
questions of law to this Court for determination. Defendant JENKINS BROS. denies any
knowledge or information sufficient to form a belief as to the truth of each and every allegation
contained in paragraphs 39 through 43 of the Complaint as it pertains to the remaining
defendants in the Complaint.
AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
AGAINST ALL DEFENDANTS
8. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and
every answer to each and every allegation contained in paragraphs 1 through 43 of the Complaint
with the same force and effect as if fully set forth at length herein in answer to paragraph 44 of
the Complaint.
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9. Defendant JENKINS BROS. denies each and every allegation contained in
paragraphs 45 through 53 of the Complaint insofar as it relates to this Defendant, and refers all
questions of law to this Court for determination. Defendant JENKINS BROS. denies any
knowledge or information sufficient to form a belief as to the truth of each and every allegation
contained in paragraphs 45 through 53 of the Complaint as it pertains to the remaining
defendants in the Complaint.
AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
10. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and
every answer to each and every allegation contained in paragraphs 1 through 53 of the Complaint
with the same force and effect as if fully set forth at length herein in answer to paragraph 54 of
the Complaint.
11. Defendant JENKINS BROS. denies each and every allegation contained in
paragraphs 55 through 64 of the Complaint insofar as it relates to this Defendant, and refers all
questions of law to this Court determination. Defendant JENKINS BROS. denies any
knowledge or information sufficient to form a belief as to the truth of each and every allegation
contained in paragraphs 55 through 64 of the Complaint as it pertains to the remaining
defendants in the Complaint.
AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
12. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and
every answer to each and every allegation contained in paragraphs 1 through 64 of the Complaint
with the same force and effect as if fully set forth at length herein in answer to paragraph 65 of
the Complaint.
13. Defendant JENKINS BROS. denies each and every allegation contained in
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paragraphs 66 through 83 of the Complaint insofar as it relates to this Defendant, and refers all
questions of law to this Court for determination. Defendant JENKINS BROS. denies any
knowledge or information sufficient to form a belief as to the truth of each and every allegation
contained in paragraphs 66 through 83 of the Complaint as it pertains to the remaining
defendants in the Complaint.
AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
14. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and
every answer to each and every allegation contained in paragraphs 1 through 83 of the Complaint
with the same force and effect as if fully set forth at length herein in answer to paragraph 84 of
the Complaint.
15. Defendant JENKINS BROS. denies each and every allegation contained in
paragraphs 85 and 86 of the Complaint insofar as it relates to this Defendant and refers all
questions of law to this Court for determination. Defendant JENKINS BROS. denies any
knowledge or information sufficient to form a belief as to the truth of each and every allegation
contained in paragraphs 85 and 86 of the Complaint as it pertains to the remaining defendants in
the Complaint.
AS AND FOR AFFIRMATIVE DEFENSES
FIRST SEPARATE AFFIRMATIVE DEFENSE
Defendant denies that the Plaintiffs are entitled to the damages claimed or to the relief
demanded.
SECOND SEPARATE AFFIRMATIVE DEFENSE
Each and every Count of the Complaint fails to state a claim upon which relief can be
granted.
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THIRD SEPARATE AFFIRMATIVE DEFENSE
There is an insufficiency of service of process upon this Defendant.
FOURTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks subject matter jurisdiction over each and every count contained in the
Complaint.
FIFTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks personal jurisdiction over the Defendant with respect to each and every
Count contained in the Complaint.
SIXTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks venue over the Defendant with respect to each and every Count
contained in the Complaint.
SEVENTH SEPARATE AFFIRMATIVE DEFENSE
This Court is considered a forum non conveniens for the Defendant with respect to each
and every Count contained in the Complaint.
EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The causes of action alleged in the Complaint are barred by the applicable statutes of
limitation or repose from the jurisdiction or jurisdictions whose limitations or repose provision
govern.
NINTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiffs have failed to join a party or parties necessary for a just adjudication of this
matter and have further omitted to state any reasons for such failure.
TENTH SEPARATE AFFIRMATIVE DEFENSE
The claims presented by the Complaint are barred by the contributing fault of Plaintiffs
which fault is greater than that of each Defendant or all of the Defendants.
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ELEVENTH SEPARATE AFFIRMATIVE DEFENSE
Any injuries or damages suffered by the Plaintiffs were caused by the negligence of the
Plaintiffs and any recovery therefore is barred.
TWELFTH SEPARATE AFFIRMATIVE DEFENSE
Any injuries or damages suffered by the Plaintiffs were caused by the negligence of the
Plaintiffs and any recovery therefore must be proportionately diminished.
THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE
Any negligence on the part of Defendant was superseded by the new and independent
conduct, including negligence of Plaintiffs' employer and/or other third parties, who owed a duty
to Plaintiffs and over whom Defendant had no control and which conduct Defendant could
neither anticipate nor reasonably foresee and which superseding conduct was not a consequence
of Defendant's alleged negligence but which was the efficient cause of the injuries allegedly
sustained by Plaintiffs.
FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE
The injuries complained of by the Plaintiffs are wholly or partially caused by independent
means, including, inter alia, the conduct and habits of Plaintiffs and exposure to other
particulates in the environment.
FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff(s) was a habitual smoker, and such smoking caused any lung disease from which
the Plaintiff(s) suffered.
SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant had no duty to give instructions to Plaintiffs or to warn Plaintiffs of any
hazards attendant to the contact with, use of, or exposure to its products containing asbestos,
whether known or constructively known by Defendant, because those hazards were known by
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Plaintiffs and/or other persons who controlled or supervised Plaintiffs in the course of or
incidental to his/her employment.
SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiffs' claims to the extent that they include a prayer for equitable relief are
barred on account of laches in that Plaintiffs failed or neglected to maintain this action in a swift,
diligent and timely fashion, all to the detriment of Defendant.
EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE
There was no privity of contract between Defendant and Plaintiffs so Plaintiffs may not
recover upon any alleged breach of any express or implied warranty.
NINETEENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs' claims if based upon the allegations of express or implied warranty are barred
because no sale of goods occurred.
TWENTIETH SEPARATE AFFIRMATIVE DEFENSE
Defendant cannot be held liable under principles of strict tort liability because products
manufactured and/or products which left Defendant's possession did so prior to the enactment of
New York law regarding strict liability.
TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
At all times and places mentioned in the Complaint, if the Defendant's products were
used, they were used by the Plaintiffs and/or other persons, in an unreasonable manner, not
reasonably foreseeable to this Defendant, and for a purpose for which the products were not
intended, manufactured, or designed; Plaintiffs' injuries and damages, if any, were directly and
proximately caused by said misuse and abuse, and Plaintiffs' recovery herein, if any, is barred or
must be diminished in proportion to the fault attributable to the Plaintiffs and/or such other
parties and persons.
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TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
An action for breach of warranty was not available to Plaintiffs during the period of the
allegedly injurious exposure to, use of, or contact with products allegedly manufactured by
Defendant.
TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
No warranty of any kind was extended to Plaintiffs in this matter.
TWENTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
If the Defendant, its servants or agents made any express warranties (allegations which
the Defendant specifically denies) then the Plaintiffs did not rely on the express warranties and,
further, there was no such reliance by any person or entity authorized to represent the Plaintiffs.
TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
If Defendant or its agents or servants made any warranties express or implied (allegations
which the Defendant specifically denies) then the Defendant denies that it breached any of said
warranties.
TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
If Defendant was liable, negligent or in breach of warranty, all of which it expressly
denies, the Defendant's liability in any or all of those events has been terminated by the
intervening acts, omissions or negligence of others over whom this Defendant had neither
control, nor the right of control and for whose conduct the Defendant is not legally responsible.
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TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
Defendant denies that there was any defect or negligent mining, processing, manufacture,
design, testing, investigation, fashioning, packaging, distributing, delivery, and/or sale, in any
asbestos product or material referred to in the Plaintiffs' Complaint, but if there was any defect or
negligence as alleged, then the Defendant is not liable as it justifiably relied upon inspection by
others in the regular course of trade and business.
TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The utility of the products manufactured by Defendant outweighs the danger allegedly
involved and, therefore, Plaintiffs' claim is barred as a matter of public policy.
TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs' employer or employees were negligent with respect to the matters set forth in
the Complaint, and such negligence caused in whole or in part whatever disease, injury or
disability, if any, which Plaintiffs may have sustained, as set forth in the Complaint. Therefore,
even if Plaintiffs are entitled to recover against Defendant, which Defendant specifically denies,
they are not entitled to recover in the amount set forth in the Complaint because Defendant is
entitled to set off any and all workmen's compensation payments against any judgment which
might be rendered in Plaintiffs' favor.
THIRTIETH SEPARATE AFFIRMATIVE DEFENSE
If Plaintiffs establish any exposure to Defendant's products, said exposure would have
been so minimal as to be insufficient to establish to a reasonable degree of probability that its
product caused Plaintiffs' claimed injuries.
THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSES
The Plaintiffs have released, settled, entered into an accord and satisfaction or otherwise
compromised his claims herein, and accordingly, said claims arc barred by operation of law.
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THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
Defendant expressly denies that it manufactured, designed, and/or sold any products
referred to in the Complaint which caused injury to Plaintiffs. Notwithstanding, at all times and
places mentioned in the Complaint, Plaintiffs and/or other persons without this Defendant's
knowledge and approval redesigned, modified, altered, and used this Defendant's products
contrary to instruction and contrary to the custom and practice of the industry. This redesign,
modification, alteration, and use so substantially changed the product's character that if there was
a defect in the product, which Defendant specifically denies, such defect resulted solely from the
redesign, modification, alteration, or other such treatment or change and not from any act or
omission by this Defendant. Therefore, said defect, if any, was created by Plaintiffs and/or other
persons, as the case may be, and was the direct and proximate cause of the injuries and damages,
if any, that Plaintiffs allegedly suffered.
THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to punitive, exemplary or enhanced damages for the following
reasons:
(a) Plaintiffs' claim for punitive damages is barred by the Due Process Clause
of the Fourteenth Amendment to the United States Constitution.
(b) Plaintiffs' claim for punitive damages is barred by the proscription of the
Eighth Amendment to the United States Constitution, as supplied to the States through
the Fourteenth Amendment, prohibiting the imposition of excessive fines.
(c) Plaintiffs' claim for punitive damages is barred by the "double jeopardy"
clause of the Fifth Amendment to the United States Constitution, as applied to the States
through the Fourteenth Amendment.
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THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
Punitive damages cannot be awarded against this Defendant for any of the alleged actions
or omissions of any of this Defendant's predecessors because there is not a sufficient degree of
identity between this Defendant and any of its predecessors to justify such an award.
THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
At all times and places mentioned in the Complaint, the Plaintiffs failed to make
reasonable efforts to mitigate their injuries and damages, if any.
THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant acted reasonably and with due care toward Plaintiffs, and there was no
negligence, gross negligence, willful, wanton or malicious misconduct, reckless indifference or
reckless disregard of the rights of the Plaintiffs, or malice (actual, legal or otherwise) on the part
of this Defendant as to the Plaintiffs.
THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiffs have waived any and all claims which they seek to assert in this action and
is estopped both to assert and to recover upon such claims.
THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant states that if it supplied any asbestos product, either directly or indirectly,
to the Plaintiffs' employers, this product was supplied in accordance with specifications
established and promulgated by that employer, agencies or departments of the United States of
America, other persons and/or entities.
THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant states that any asbestos-containing products manufactured or sold by the
Defendant which give rise to Plaintiffs' claims herein were designed and manufactured pursuant
to and in accordance with specifications mandated by the United States Government or its
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agencies. The knowledge of the United States Government and its agencies of any possible
health hazards from use of such products were equal or superior to that of the Defendant, and by
reason thereof, the Defendant is entitled to such immunity from liability as exists in favor of the
United States Government or its agencies.
FORTIETH SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiffs are unable to identify the manufacturer or manufacturers of the products
which allegedly caused injury, the causes of action asserted by the Plaintiffs fail to state a claim
upon which relief can be granted, for, if relief be granted, such relief would constitute a taking of
this Defendant's property for a public use without just compensation, a violation of this
Defendant's constitutional rights.
FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiffs are unable to identify the manufacturer or manufacturers of the products
which allegedly caused the injury, the causes of action asserted by the Plaintiffs fail to state a
claim upon which relief can be granted because such relief would constitute a denial by this
Court of Defendant's constitutional right of equal protection under the law.
FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
This Defendant alleges that any sales of asbestos-containing products made by it were
made to sophisticated users of such products, and that sale to a sophisticated user of the products
bars any claim of liability against this Defendant.
FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiffs are barred from recovery, the action of Plaintiff's spouse is also barred
because it is a derivative action.
FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
Defendant avails itself of, and adopts such other defenses raised by any other Defendants
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as may be applicable.
FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
This Defendant reserves the right to assert any and/or all applicable affirmative defense
which discovery may reveal are appropriate.
FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiffs' claims are barred by the doctrines of res judicata and/or collateral estoppel.
FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
The liability of this Defendant, if any, to Plaintiffs for non-economic loss is limited to
this Defendant's equitable share, determined in accordance with the relative culpability of all
persons or entities contributing to the total liability for non-economic loss, including named
parties and others over whom Plaintiffs could have obtained personal jurisdiction with due
diligence.
FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
In the event Plaintiffs recover a verdict or judgment against this Defendant, then said
verdict or judgment must be reduced by those amounts which have been or will replace or
indemnify Plaintiffs, in whole or in part, for any past or future claimed economic loss, from any
collateral source such as insurance, social security, workers compensation or employee benefit
programs.
FORTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
If Plaintiffs have settled or should settle with any entity or have any judgment against any
entity rendered in their favor for any of their alleged injuries, then this Defendant is entitled to a
setoff in the amount of said settlement or judgment.
FIFTIETH SEPARATE AFFIRMATIVE DEFENSE
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Any alleged liability of Defendant JENKINS BROS. must be reduced by operation of
GOL § 15-108 or any other right of setoff, reduction and/or credit available under applicable
law.
FIFTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
Pursuant to Article 16 of the CPLR should the liability, if any, of Defendant JENKINS
BROS. be found to be 50% or less of the total liability assigned to all parties liable, then
Defendant JENKINS BROS.’S liability to Plaintiffs for non-economic loss shall be limited to
said Defendant JENKINS BROS.’S equitable share, as determined in accordance with the
relative culpability of each party causing or contributing to the total liability for non-economic
loss of Plaintiffs.
CROSS-CLAIM FOR CONTRIBUTION
Defendant JENKINS BROS. hereby makes claim for contribution against each and
every Defendant in this action.
CROSS-CLAIM FOR INDEMNIFICATION
While denying liability to Plaintiffs as well as the damages and injuries alleged, if this
Defendant is found liable to the Plaintiffs for damages by reason of the alleged acts complained
of, this Defendant's alleged negligence was merely constructive, technical and passive or
vicarious and Plaintiffs' damages and injuries arose with direct and primary negligence, strict
liability, breach of contract and implied warranties of the said co-defendants listed in this action.
ANSWERS TO ALL CROSS-CLAIMS
This Defendant answers all cross-claims of co-defendants, saying:
(a) All cross-claims for contribution alleged are denied.
(b) All cross-claims for indemnification alleged are denied.
WHEREFORE, Defendant JENKINS BROS. demands judgment as follows:
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(a) Dismissing the Complaint against it together with the costs and
disbursements of this action and for any expenses incurred in the defense thereof
including this Defendant's attorneys' fees.
(b) Awarding judgment, contribution and/or indemnity against other co-
defendants for the full amount of any judgment or for a proportionate share thereof that
Plaintiffs may recover against this Defendant together with the costs and disbursements
of this action and for any expenses incurred in the defense thereof including this
Defendant's attorneys' fees.
(c) For such other equitable, declaratory or any other type of relief as this
Court may deem just and proper.
Dated: New York, New York
October 17, 2023
Yours, etc.,
CLYDE & CO US LLP
By: /s/ John J. Burbridge
John J. Burbridge, Esq.
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Phone: (212) 710-3900
Fax: (212) 710-3950
Email: john.burbridge@clydeco.us
Attorneys for Defendant Jenkins Bros.
TO: Weitz & Luxenberg, P.C.
Attorneys for Plaintiffs
700 Broadway
New York, New York 10007
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ATTORNEY'S VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
John J. Burbridge, being duly sworn, deposes and says that I am an attorney with the
law firm of Clyde & Co US LLP, that I have read the foregoing VERIFIED ANSWER OF
DEFENDANT JENKINS BROS. and knows the contents thereof, and that the same is true to
my own knowledge, except as to matters therein stated to be alleged upon information and belief,
and that as to those matters, I believe them to be true. The reason this verification is made by
deponent and not by Defendant is because Defendant does not reside within the County where
the deponent maintains his office.
JOHN J. BURBRIDGE
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Defendant JENKINS BROS. denies each and every allegation contained in paragraphs 3 through 17 of the Complaint insofar as it relates to this Defendant, and refers all questions of law to this Court for determination. Defendant JENKINS BROS. denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 3 through 17 of the Complaint as it pertains to the remaining defendants in the Complaint. AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS 4. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 17 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 18 of 1 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 the Complaint. 5. Defendant JENKINS BROS. denies each and every allegation contained in paragraphs 19 through 37 of the Complaint insofar as it relates to this Defendant, and refers all questions of law to this Court for determination. Defendant JENKINS BROS. denies any knowledge or information sufficient to form a belief as to as to the truth of each and every allegation contained in paragraphs 19 through 37 of the Complaint as it pertains to the remaining defendants in the Complaint. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS 6. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 37 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 38 of the Complaint. 7. Defendant JENKINS BROS. denies each and every allegation contained in paragraphs 39 through 43 of the Complaint insofar as it relates to this Defendant, and refers all questions of law to this Court for determination. Defendant JENKINS BROS. denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 39 through 43 of the Complaint as it pertains to the remaining defendants in the Complaint. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS 8. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 43 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 44 of the Complaint. 2 2 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 9. Defendant JENKINS BROS. denies each and every allegation contained in paragraphs 45 through 53 of the Complaint insofar as it relates to this Defendant, and refers all questions of law to this Court for determination. Defendant JENKINS BROS. denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 45 through 53 of the Complaint as it pertains to the remaining defendants in the Complaint. AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS 10. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 53 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 54 of the Complaint. 11. Defendant JENKINS BROS. denies each and every allegation contained in paragraphs 55 through 64 of the Complaint insofar as it relates to this Defendant, and refers all questions of law to this Court determination. Defendant JENKINS BROS. denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 55 through 64 of the Complaint as it pertains to the remaining defendants in the Complaint. AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS 12. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 64 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 65 of the Complaint. 13. Defendant JENKINS BROS. denies each and every allegation contained in 3 3 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 paragraphs 66 through 83 of the Complaint insofar as it relates to this Defendant, and refers all questions of law to this Court for determination. Defendant JENKINS BROS. denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 66 through 83 of the Complaint as it pertains to the remaining defendants in the Complaint. AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION AGAINST ALL DEFENDANTS 14. Defendant JENKINS BROS. herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 83 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 84 of the Complaint. 15. Defendant JENKINS BROS. denies each and every allegation contained in paragraphs 85 and 86 of the Complaint insofar as it relates to this Defendant and refers all questions of law to this Court for determination. Defendant JENKINS BROS. denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 85 and 86 of the Complaint as it pertains to the remaining defendants in the Complaint. AS AND FOR AFFIRMATIVE DEFENSES FIRST SEPARATE AFFIRMATIVE DEFENSE Defendant denies that the Plaintiffs are entitled to the damages claimed or to the relief demanded. SECOND SEPARATE AFFIRMATIVE DEFENSE Each and every Count of the Complaint fails to state a claim upon which relief can be granted. 4 4 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 THIRD SEPARATE AFFIRMATIVE DEFENSE There is an insufficiency of service of process upon this Defendant. FOURTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks subject matter jurisdiction over each and every count contained in the Complaint. FIFTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over the Defendant with respect to each and every Count contained in the Complaint. SIXTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks venue over the Defendant with respect to each and every Count contained in the Complaint. SEVENTH SEPARATE AFFIRMATIVE DEFENSE This Court is considered a forum non conveniens for the Defendant with respect to each and every Count contained in the Complaint. EIGHTH SEPARATE AFFIRMATIVE DEFENSE The causes of action alleged in the Complaint are barred by the applicable statutes of limitation or repose from the jurisdiction or jurisdictions whose limitations or repose provision govern. NINTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiffs have failed to join a party or parties necessary for a just adjudication of this matter and have further omitted to state any reasons for such failure. TENTH SEPARATE AFFIRMATIVE DEFENSE The claims presented by the Complaint are barred by the contributing fault of Plaintiffs which fault is greater than that of each Defendant or all of the Defendants. 5 5 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 ELEVENTH SEPARATE AFFIRMATIVE DEFENSE Any injuries or damages suffered by the Plaintiffs were caused by the negligence of the Plaintiffs and any recovery therefore is barred. TWELFTH SEPARATE AFFIRMATIVE DEFENSE Any injuries or damages suffered by the Plaintiffs were caused by the negligence of the Plaintiffs and any recovery therefore must be proportionately diminished. THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE Any negligence on the part of Defendant was superseded by the new and independent conduct, including negligence of Plaintiffs' employer and/or other third parties, who owed a duty to Plaintiffs and over whom Defendant had no control and which conduct Defendant could neither anticipate nor reasonably foresee and which superseding conduct was not a consequence of Defendant's alleged negligence but which was the efficient cause of the injuries allegedly sustained by Plaintiffs. FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE The injuries complained of by the Plaintiffs are wholly or partially caused by independent means, including, inter alia, the conduct and habits of Plaintiffs and exposure to other particulates in the environment. FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff(s) was a habitual smoker, and such smoking caused any lung disease from which the Plaintiff(s) suffered. SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE The Defendant had no duty to give instructions to Plaintiffs or to warn Plaintiffs of any hazards attendant to the contact with, use of, or exposure to its products containing asbestos, whether known or constructively known by Defendant, because those hazards were known by 6 6 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 Plaintiffs and/or other persons who controlled or supervised Plaintiffs in the course of or incidental to his/her employment. SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiffs' claims to the extent that they include a prayer for equitable relief are barred on account of laches in that Plaintiffs failed or neglected to maintain this action in a swift, diligent and timely fashion, all to the detriment of Defendant. EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE There was no privity of contract between Defendant and Plaintiffs so Plaintiffs may not recover upon any alleged breach of any express or implied warranty. NINETEENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs' claims if based upon the allegations of express or implied warranty are barred because no sale of goods occurred. TWENTIETH SEPARATE AFFIRMATIVE DEFENSE Defendant cannot be held liable under principles of strict tort liability because products manufactured and/or products which left Defendant's possession did so prior to the enactment of New York law regarding strict liability. TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE At all times and places mentioned in the Complaint, if the Defendant's products were used, they were used by the Plaintiffs and/or other persons, in an unreasonable manner, not reasonably foreseeable to this Defendant, and for a purpose for which the products were not intended, manufactured, or designed; Plaintiffs' injuries and damages, if any, were directly and proximately caused by said misuse and abuse, and Plaintiffs' recovery herein, if any, is barred or must be diminished in proportion to the fault attributable to the Plaintiffs and/or such other parties and persons. 7 7 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE An action for breach of warranty was not available to Plaintiffs during the period of the allegedly injurious exposure to, use of, or contact with products allegedly manufactured by Defendant. TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE No warranty of any kind was extended to Plaintiffs in this matter. TWENTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE If the Defendant, its servants or agents made any express warranties (allegations which the Defendant specifically denies) then the Plaintiffs did not rely on the express warranties and, further, there was no such reliance by any person or entity authorized to represent the Plaintiffs. TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE If Defendant or its agents or servants made any warranties express or implied (allegations which the Defendant specifically denies) then the Defendant denies that it breached any of said warranties. TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE If Defendant was liable, negligent or in breach of warranty, all of which it expressly denies, the Defendant's liability in any or all of those events has been terminated by the intervening acts, omissions or negligence of others over whom this Defendant had neither control, nor the right of control and for whose conduct the Defendant is not legally responsible. 8 8 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE Defendant denies that there was any defect or negligent mining, processing, manufacture, design, testing, investigation, fashioning, packaging, distributing, delivery, and/or sale, in any asbestos product or material referred to in the Plaintiffs' Complaint, but if there was any defect or negligence as alleged, then the Defendant is not liable as it justifiably relied upon inspection by others in the regular course of trade and business. TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE The utility of the products manufactured by Defendant outweighs the danger allegedly involved and, therefore, Plaintiffs' claim is barred as a matter of public policy. TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs' employer or employees were negligent with respect to the matters set forth in the Complaint, and such negligence caused in whole or in part whatever disease, injury or disability, if any, which Plaintiffs may have sustained, as set forth in the Complaint. Therefore, even if Plaintiffs are entitled to recover against Defendant, which Defendant specifically denies, they are not entitled to recover in the amount set forth in the Complaint because Defendant is entitled to set off any and all workmen's compensation payments against any judgment which might be rendered in Plaintiffs' favor. THIRTIETH SEPARATE AFFIRMATIVE DEFENSE If Plaintiffs establish any exposure to Defendant's products, said exposure would have been so minimal as to be insufficient to establish to a reasonable degree of probability that its product caused Plaintiffs' claimed injuries. THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSES The Plaintiffs have released, settled, entered into an accord and satisfaction or otherwise compromised his claims herein, and accordingly, said claims arc barred by operation of law. 9 9 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE Defendant expressly denies that it manufactured, designed, and/or sold any products referred to in the Complaint which caused injury to Plaintiffs. Notwithstanding, at all times and places mentioned in the Complaint, Plaintiffs and/or other persons without this Defendant's knowledge and approval redesigned, modified, altered, and used this Defendant's products contrary to instruction and contrary to the custom and practice of the industry. This redesign, modification, alteration, and use so substantially changed the product's character that if there was a defect in the product, which Defendant specifically denies, such defect resulted solely from the redesign, modification, alteration, or other such treatment or change and not from any act or omission by this Defendant. Therefore, said defect, if any, was created by Plaintiffs and/or other persons, as the case may be, and was the direct and proximate cause of the injuries and damages, if any, that Plaintiffs allegedly suffered. THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE Plaintiffs are not entitled to punitive, exemplary or enhanced damages for the following reasons: (a) Plaintiffs' claim for punitive damages is barred by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. (b) Plaintiffs' claim for punitive damages is barred by the proscription of the Eighth Amendment to the United States Constitution, as supplied to the States through the Fourteenth Amendment, prohibiting the imposition of excessive fines. (c) Plaintiffs' claim for punitive damages is barred by the "double jeopardy" clause of the Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. 10 10 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE Punitive damages cannot be awarded against this Defendant for any of the alleged actions or omissions of any of this Defendant's predecessors because there is not a sufficient degree of identity between this Defendant and any of its predecessors to justify such an award. THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE At all times and places mentioned in the Complaint, the Plaintiffs failed to make reasonable efforts to mitigate their injuries and damages, if any. THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE The Defendant acted reasonably and with due care toward Plaintiffs, and there was no negligence, gross negligence, willful, wanton or malicious misconduct, reckless indifference or reckless disregard of the rights of the Plaintiffs, or malice (actual, legal or otherwise) on the part of this Defendant as to the Plaintiffs. THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiffs have waived any and all claims which they seek to assert in this action and is estopped both to assert and to recover upon such claims. THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE The Defendant states that if it supplied any asbestos product, either directly or indirectly, to the Plaintiffs' employers, this product was supplied in accordance with specifications established and promulgated by that employer, agencies or departments of the United States of America, other persons and/or entities. THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE The Defendant states that any asbestos-containing products manufactured or sold by the Defendant which give rise to Plaintiffs' claims herein were designed and manufactured pursuant to and in accordance with specifications mandated by the United States Government or its 11 11 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 agencies. The knowledge of the United States Government and its agencies of any possible health hazards from use of such products were equal or superior to that of the Defendant, and by reason thereof, the Defendant is entitled to such immunity from liability as exists in favor of the United States Government or its agencies. FORTIETH SEPARATE AFFIRMATIVE DEFENSE If the Plaintiffs are unable to identify the manufacturer or manufacturers of the products which allegedly caused injury, the causes of action asserted by the Plaintiffs fail to state a claim upon which relief can be granted, for, if relief be granted, such relief would constitute a taking of this Defendant's property for a public use without just compensation, a violation of this Defendant's constitutional rights. FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE If the Plaintiffs are unable to identify the manufacturer or manufacturers of the products which allegedly caused the injury, the causes of action asserted by the Plaintiffs fail to state a claim upon which relief can be granted because such relief would constitute a denial by this Court of Defendant's constitutional right of equal protection under the law. FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE This Defendant alleges that any sales of asbestos-containing products made by it were made to sophisticated users of such products, and that sale to a sophisticated user of the products bars any claim of liability against this Defendant. FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE If the Plaintiffs are barred from recovery, the action of Plaintiff's spouse is also barred because it is a derivative action. FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE Defendant avails itself of, and adopts such other defenses raised by any other Defendants 12 12 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 as may be applicable. FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE This Defendant reserves the right to assert any and/or all applicable affirmative defense which discovery may reveal are appropriate. FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE Plaintiffs' claims are barred by the doctrines of res judicata and/or collateral estoppel. FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE The liability of this Defendant, if any, to Plaintiffs for non-economic loss is limited to this Defendant's equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability for non-economic loss, including named parties and others over whom Plaintiffs could have obtained personal jurisdiction with due diligence. FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE In the event Plaintiffs recover a verdict or judgment against this Defendant, then said verdict or judgment must be reduced by those amounts which have been or will replace or indemnify Plaintiffs, in whole or in part, for any past or future claimed economic loss, from any collateral source such as insurance, social security, workers compensation or employee benefit programs. FORTY-NINTH SEPARATE AFFIRMATIVE DEFENSE If Plaintiffs have settled or should settle with any entity or have any judgment against any entity rendered in their favor for any of their alleged injuries, then this Defendant is entitled to a setoff in the amount of said settlement or judgment. FIFTIETH SEPARATE AFFIRMATIVE DEFENSE 13 13 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 Any alleged liability of Defendant JENKINS BROS. must be reduced by operation of GOL § 15-108 or any other right of setoff, reduction and/or credit available under applicable law. FIFTY-FIRST SEPARATE AFFIRMATIVE DEFENSE Pursuant to Article 16 of the CPLR should the liability, if any, of Defendant JENKINS BROS. be found to be 50% or less of the total liability assigned to all parties liable, then Defendant JENKINS BROS.’S liability to Plaintiffs for non-economic loss shall be limited to said Defendant JENKINS BROS.’S equitable share, as determined in accordance with the relative culpability of each party causing or contributing to the total liability for non-economic loss of Plaintiffs. CROSS-CLAIM FOR CONTRIBUTION Defendant JENKINS BROS. hereby makes claim for contribution against each and every Defendant in this action. CROSS-CLAIM FOR INDEMNIFICATION While denying liability to Plaintiffs as well as the damages and injuries alleged, if this Defendant is found liable to the Plaintiffs for damages by reason of the alleged acts complained of, this Defendant's alleged negligence was merely constructive, technical and passive or vicarious and Plaintiffs' damages and injuries arose with direct and primary negligence, strict liability, breach of contract and implied warranties of the said co-defendants listed in this action. ANSWERS TO ALL CROSS-CLAIMS This Defendant answers all cross-claims of co-defendants, saying: (a) All cross-claims for contribution alleged are denied. (b) All cross-claims for indemnification alleged are denied. WHEREFORE, Defendant JENKINS BROS. demands judgment as follows: 14 14 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 (a) Dismissing the Complaint against it together with the costs and disbursements of this action and for any expenses incurred in the defense thereof including this Defendant's attorneys' fees. (b) Awarding judgment, contribution and/or indemnity against other co- defendants for the full amount of any judgment or for a proportionate share thereof that Plaintiffs may recover against this Defendant together with the costs and disbursements of this action and for any expenses incurred in the defense thereof including this Defendant's attorneys' fees. (c) For such other equitable, declaratory or any other type of relief as this Court may deem just and proper. Dated: New York, New York October 17, 2023 Yours, etc., CLYDE & CO US LLP By: /s/ John J. Burbridge John J. Burbridge, Esq. The Chrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 Phone: (212) 710-3900 Fax: (212) 710-3950 Email: john.burbridge@clydeco.us Attorneys for Defendant Jenkins Bros. TO: Weitz & Luxenberg, P.C. Attorneys for Plaintiffs 700 Broadway New York, New York 10007 15 15 of 16 FILED: RENSSELAER COUNTY CLERK 10/17/2023 11:23 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/17/2023 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) John J. Burbridge, being duly sworn, deposes and says that I am an attorney with the law firm of Clyde & Co US LLP, that I have read the foregoing VERIFIED ANSWER OF DEFENDANT JENKINS BROS. and knows the contents thereof, and that the same is true to my own knowledge, except as to matters therein stated to be alleged upon information and belief, and that as to those matters, I believe them to be true. The reason this verification is made by deponent and not by Defendant is because Defendant does not reside within the County where the deponent maintains his office. JOHN J. BURBRIDGE 16 of 16