On October 04, 2023 a
Answer
was filed
involving a dispute between
Judith Van Amburgh,
Wayne Van Amburgh,
and
Amchem Products, Inc., N K A Rhone Poulenc Ag Company, N K A Bayer Cropscience Inc.,,
Carrier Corporation,
General Electric Company,
Goulds Pumps Llc,
Grinnell Llc,
Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,,
Imo Industries, Inc.,,,
Itt Llc., Individually And As Successor To Bell & Gossett And As Successor To Kennedy Valve Manufacturing Co., Inc.,,
Jenkins Bros,
Neles-Jamesbury Inc.,,
Pfizer, Inc.,
Redco Corporation F K A Crane Co.,,
Spirax Sarco, Inc. Individually And As Successor To Sarco Company,,
Union Carbide Corporation,,
U.S. Rubber Company,
Warren Pumps Llc,
for Torts - Asbestos
in the District Court of Rensselaer County.
Preview
FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
- ------------_.-.-----..---_ _------------_ __-------------------------- x
This Document Relates To: :
: Index No.: EF2023-275073
WAYNE VAN AMBURGH and JUDITH VAN :
AMBURGH, :
:
Plaintiff(s), : VERIFIED ANSWER
- against - :
AMCHEM PRODUCTS, INC., :
n/lda RHONE POULENC AG COMPANY, :
n/k/a BAYER CROPSCIENCE INC., et al., :
Defendants. :
__ ----____________---______---__-----.____----------____.---_____--- x
Defendant HONEYWELL INTERNATIONAL INC., f/k/a AlliedSignal, Inc., as
successor-in-interest to The Bendix Corporation, sued herein as HONEYWELL
INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX ("Honeywell"), by its
Plaintiffs'
attorneys, Harris Beach PLLC, for its Verified Answer to Verified Complaint
("Complaint"), states upon information and belief as follows:
THE PARTIES
1. Honeywell denies knowledge and information sufficient to form a belief as to the
"1"
truth of the allegations contained in paragraph of the Complaint and refers all questions of law
to this honorable Court.
"2" "3"
2. Honeywell denies the allegations contained in paragraphs and of the
Complaint insofar as they are directed to Honeywell and refers all questions of law to this
honorable Court. Honeywell admits that it did conduct business in this state from time to time;
however, Honeywell denies that such business is in any way related to the allegations contained
these paragraphs and the Complaint.
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3. Honeywell denies Imowledge or information sufficient to form a belief as to the
"2" "3"
allegations contained in para!raphs and of the Complaint to the extent that such allegations
relate to other parties and refers all questions of law to this honorable Court.
4. Honeywell denies knowledge and information to form a belief as to the truth of the
allegations contained in paragraphs "4", "5", "6", "7", "9", "10", "11", "12", "13", "14", "15",
"17"
"16", and of the Complaint and refers all questions of law to this honorable Court.
"8"
5. Honeywell denies the allegations contained in paragraph of the Complaint and
refers all questions of law to this honorable Court. Honeywell admits that it did conduct business
in this state from time to time; however, Honeywell denies that such business is in any way related
to the allegations contained this paragraph and Complaint.
AS TO THE FIRST CAUSE OF ACTION
AGAINST ALL DEFENDANTS
6. Honeywell repeats and reiterates each and every response hereinbefore made with
the same force and effect as though the same were set forth at length herein in response to
"18"
paragraph of the Complaint.
"19" "37"
7. Honeywell denies the allegations contained in paragraphs through of the
Complaint to the extent that such allegations are directed towards Honeywell and refers all
questions of law to this honorable Court.
8. Honeywell denies knowledge or information sufficient to form a belief as to the
"19" "37"
truth of the allegations contained in paragraphs through of the Complaint to the extent
that such allegations relate to other parties and refers all questions of law to this honorable Court.
AS TO THE SECOND CAUSE OF ACTION
AGAINST ALL DEFENDANTS
9. Honeywell repeats and reiterates each and every response hereinbefore made with
the same force and effect as though the same were set forth at length herein in response to
"38"
paragraph of the Complaint.
2
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"39" "43"
10. Honeywell denies the allegations contained in paragraphs through of the
Complaint to the extent that such allegations are directed towards Honeywell and refers all
questions of law to this honorable Court.
11. Honeywell denies knowledge or information sufficient to form a belief as to the
"39" "43"
truth of the allegations contained in paragraphs through of the Complaint to the extent
that such allegations relate to other parties and refers all questions of law to this honorable Court.
AS TO THE THIRD CAUSE OF ACTION
AGAINST ALL DEFENDANTS
12. Honeywell repeats and reiterates each and every response hereinbefore made with
the same force and effect as though the same were set forth at length herein in response to
"44"
paragraph of the Complaint.
"45" "53"
13. Honeywell denies the allegations contained in paragraphs through of the
Complaint to the extent that such allegations are directed towards Honeywell and refers all
questions of law to this honorable Court. . .
14. Honeywell denies knowledge or information sufficient to form a belief as to the
"45" "53"
truth of the allegations contained in paragraphs through of the Complaint to the extent
that such allegations relate to other parties and refers all questions of law to this honorable Court.
AS TO THE FOURTH CAUSE OF ACTION
AGAINST ALL OTHER DEFENDANTS
15. Honeywell repeats and reiterates each and every response hereinbefore made with
the same force and effect as though the same were set forth at length herein in response to
"54"
paragraph of the Complaint.
"55" "64"
16. Honeywell denies the allegations contained in paragraphs through of the
Complaint to the extent that such allegations are directed towards Honeywell and refers all
questions of law to this honorable Court.
3
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17. Honeywell denies knowledge or information sufficient to form a belief as to the
"55" "64"
truth of the allegations contained in paragraphs through of the Complaint to the extent
that such allegations relate to other parties and refers all questions of law to this honorable Court.
AS TO THE FIFTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
18. Honeywell repeats and reiterates each and every response hereinbefore made with
the same force and effect as though the same were set forth at length herein in response to
"65"
paragraph of the Complaint.
"66" "83"
19. Honeywell denies the allegations contained in paragraphs through of the
Complaint to the extent that such allegations are directed towards Honeywell and refers all
questions of law to this honorable Court.
20. Honeywell denies knowledge or information sufficient to form a belief as to the
"66" "83"
truth of the allegations contained in paragraphs through of the Complaint to the extent
that such allegations relate to other parties and refers all questions of law to this honorable Court.
AS TO THE SIXTH CAUSE OF ACTION
AGAINST DEFENDANTS
21. Honeywell repeats and reiterates each and every response hereinbefore made with
the same force and effect as though the same were set forth at length herein in response to
"84"
paragraph of the Complaint.
22. Honeywell denies knowledge or information sufficient to form a belief as to the
"85"
truth of the allegations contained in paragraph of the Complaint and refers all questions of
law to this honorable Court.
"86"
23. Honeywell denies the allegations contained in paragraph of the Complaint to
the extent that such allegations are directed towards Honeywell and refers all questions of law to
this honorable Court.
4
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24. Honeywell denies knowledge or information sufficient to form a belief as to the
"86"
truth of the allegations contained in paragraph of the Complaint to the extent that such
allegations relate to other parties and refers all questions of law to this honorable Court.
FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state a cause of action.
SECOND AFFIRMATIVE DEFENSE
Plaintiff failed to properly serve Honeywell with the Summons and the Complaint and the
Court lacks jurisdiction herein.
THIRD AFFIRMATIVE DEFENSE
The Court lacks personal jurisdiction over this answering Defendant.
FOURTH AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over the subject matter of this action.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred because the Complaint is defective as a matter of law.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred by the applicable Statute of Limitations.
SEVENTH AFFIRMATIVE DEFENSE
The delay of the plaintiff in commencing suit is inexcusable and has resulted in prejudice
to Honeywell, and the equitable doctrine of laches bars their claims.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff failed to bring the Complaint in the appropriate venue.
NINTH AFFIRMATIVE DEFENSE
Pursuant to General Obligations Law Section 15-108, Honeywell is entitled to set-off.
5
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TENTH AFFIRMATIVE DEFENSE
Any recovery by plaintiffs herein must be reduced by collateral source payments pursuant
to CPLR 4545.
ELEVENTH AFFIRMATIVE DEFENSE
If the answering Defendant is found liable, such liability is less than or equal to 50% of the
total liability of all persons who may be found liable, and therefore, this answering Defendant's
liability shall be limited to its equitable share pursuant to CPLR Section 1601.
TWELFTH AFFIRMATIVE DEFENSE
If the causes of action, based upon statutory liability as pleaded in the Complaint, are based
upon expressed or implied warranties and/or representations, then the alleged breaches thereto, as
against this answering Defendant, are legally insufficient by reason of their failure to allege privity
of contract between the plaintiff and this answering Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE
The answering Defendant gave, made or extended no warranties, whether express or
implied, upon which plaintiff had a right to rely.
FOURTEENTH AFFIRMATIVE DEFENSE
The answering Defendant breached no warranties, whether express or implied.
FIFTEENTH AFFIRMATIVE DEFENSE
The Statute of Limitations is a complete and total bar as to any and all warranties allegedly
presented or made in connection with the alleged sale, manufacture, distribution, supply, testing,
design, packaging or delivery of the asbestos product(s) to which plaintiff's allegedly came into
contact.
6
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SIXTEENTH AFFIRMATIVE DEFENSE
If the causes of action based upon statutory liability are founded upon any oral warranties
or undertakings on the part of the answering Defendant upon which the plaintiff might rely, they
are inadmissible and unavailable pursuant to the provisions of the Statute of Frauds.
SEVENTEENTH AFFIRMATIVE DEFENSE
That insofar as the Complaint and each cause of action of each plaintiff considered
separately alleges a cause of action occurring on or after September 1, 1975 to recover damages
for personal injuries, the amount of damages recoverable thereon must be diminished by the
plaintiffs'
comparative negligence, in the proportion which the culpable conduct attributable to the
plaintiff bears upon the culpable conduct which caused the damages.
EIGHTEENTH AFFIRMATIVE DEFENSE
That insofar as the causes of action herein considered separately occurred before
September 1, 1975, such causes of action are barred by reason of the contributory negligence of
the plaintiff.
NINETEENTH AFFIRMATIVE DEFENSE
That plaintiff was barred from any recovery against this answering Defendant by the
doctrine of assumption of the risk.
TWENTIETH AFFIRMATIVE DEFENSE
That plaintiff contributed to the alleged illness, either in whole or part, by the use of other
substances, products, medications and/or drugs.
TWENTY-FIRST AFFIRMATIVE DEFENSE
That plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and
disabilities alleged in the Complaint.
7
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TWENTY-SECOND AFFIRMATIVE DEFENSE
In the event that plaintiff was employed by this answering Defendant, such plaintiff's sole
Workers'
remedy is under the Compensation Law and said plaintiff cannot recover from this
Defendant in this action.
TWENTY-THIRD AFFIRMATIVE DEFENSE
That the plaintiff's employer(s) were sophisticated purchasers and/or users of the products
referred to in plaintiff's Complaint and upon whom devolved all responsibility for such use.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
That the matters that are the subject of the plaintiff's Complaint are attributable to third
parties over whom this answering Defendant had neither control nor right of control.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
That if plaintiff should prove that deceased sustained injuries and damages as alleged, such
injuries and damages resulted from acts or omissions on the part of third parties, including
deceased plaintiff's employer(s), over whom this Defendant had neither control nor right of control
and for whose acts or omissions this answering Defendant is not liable.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
This answering Defendant denies the allegations of the plaintiffs with respect to
negligence, statutory liability, strict liability, injury and damages, and to the extent that plaintiff
may be able to prove the same, they were the result of intervening and/or interceding acts of
superseding negligence or other conduct on the part of parties over which this Defendant has
neither control nor right of control.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
This answering Defendant reserves the right to amend its answer and to assert additional
cross claims and/or otherwise counterclaims as to any party named herein, who may have, is or
will be declared bankrupt or otherwise files a petition under the Bankruptcy Code, pursuant to
8
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CPLR Article 16 and to the decision of Justice Helen E. Freedman, previous presiding judge for
the New York City Asbestos Litigation (October 28, 2002).
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
plaintiffs'
Plaintiff's claims are barred because of failure to join necessary and
indispensable parties.
TWENTY-NINTH AFFIRMATIVE DEFENSE
That during the periods of exposure alleged in the Complaint by the plaintiff, this
answering Defendant denies specifically that it mined, processed, manufactured, designed, sold,
delivered, supplied, developed, tested, fashioned, packaged, distributed and/or otherwise placed in
the stream of commerce a substantial and/or any percentage of the asbestos products to which
plaintiffs allegedly were caused to come into contact and were allegedly caused to breathe, inhale
and/or digest, and which allegedly caused plaintiff's injuries and resulting damages. In the event
it should be proved at the time of trial that all defendants are subject to market share liability, then
this Defendant's share of such liability would be of such a de minimis amount as to make its
contribution for damages negligible, and this answering Defendant will be entitled to contribution
either in whole or part from the other answering Defendants.
THIRTIETH AFFIRMATIVE DEFENSE
That no enterprise liability lies against this answering Defendant herein.
THIRTY-FIRST AFFIRMATIVE DEFENSE
That at all times during the conduct of the corporate operations, the agents, servants and/or
employees of this answering Defendant, utilized proper methods of manufacture of products in
conformity with the state of the art and the
Preview
FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER - ------------_.-.-----..---_ _------------_ __-------------------------- x This Document Relates To: : : Index No.: EF2023-275073 WAYNE VAN AMBURGH and JUDITH VAN : AMBURGH, : : Plaintiff(s), : VERIFIED ANSWER - against - : AMCHEM PRODUCTS, INC., : n/lda RHONE POULENC AG COMPANY, : n/k/a BAYER CROPSCIENCE INC., et al., : Defendants. : __ ----____________---______---__-----.____----------____.---_____--- x Defendant HONEYWELL INTERNATIONAL INC., f/k/a AlliedSignal, Inc., as successor-in-interest to The Bendix Corporation, sued herein as HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX ("Honeywell"), by its Plaintiffs' attorneys, Harris Beach PLLC, for its Verified Answer to Verified Complaint ("Complaint"), states upon information and belief as follows: THE PARTIES 1. Honeywell denies knowledge and information sufficient to form a belief as to the "1" truth of the allegations contained in paragraph of the Complaint and refers all questions of law to this honorable Court. "2" "3" 2. Honeywell denies the allegations contained in paragraphs and of the Complaint insofar as they are directed to Honeywell and refers all questions of law to this honorable Court. Honeywell admits that it did conduct business in this state from time to time; however, Honeywell denies that such business is in any way related to the allegations contained these paragraphs and the Complaint. 1 of 18 FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 3. Honeywell denies Imowledge or information sufficient to form a belief as to the "2" "3" allegations contained in para!raphs and of the Complaint to the extent that such allegations relate to other parties and refers all questions of law to this honorable Court. 4. Honeywell denies knowledge and information to form a belief as to the truth of the allegations contained in paragraphs "4", "5", "6", "7", "9", "10", "11", "12", "13", "14", "15", "17" "16", and of the Complaint and refers all questions of law to this honorable Court. "8" 5. Honeywell denies the allegations contained in paragraph of the Complaint and refers all questions of law to this honorable Court. Honeywell admits that it did conduct business in this state from time to time; however, Honeywell denies that such business is in any way related to the allegations contained this paragraph and Complaint. AS TO THE FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS 6. Honeywell repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to "18" paragraph of the Complaint. "19" "37" 7. Honeywell denies the allegations contained in paragraphs through of the Complaint to the extent that such allegations are directed towards Honeywell and refers all questions of law to this honorable Court. 8. Honeywell denies knowledge or information sufficient to form a belief as to the "19" "37" truth of the allegations contained in paragraphs through of the Complaint to the extent that such allegations relate to other parties and refers all questions of law to this honorable Court. AS TO THE SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS 9. Honeywell repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to "38" paragraph of the Complaint. 2 2 of 18 FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 "39" "43" 10. Honeywell denies the allegations contained in paragraphs through of the Complaint to the extent that such allegations are directed towards Honeywell and refers all questions of law to this honorable Court. 11. Honeywell denies knowledge or information sufficient to form a belief as to the "39" "43" truth of the allegations contained in paragraphs through of the Complaint to the extent that such allegations relate to other parties and refers all questions of law to this honorable Court. AS TO THE THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS 12. Honeywell repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to "44" paragraph of the Complaint. "45" "53" 13. Honeywell denies the allegations contained in paragraphs through of the Complaint to the extent that such allegations are directed towards Honeywell and refers all questions of law to this honorable Court. . . 14. Honeywell denies knowledge or information sufficient to form a belief as to the "45" "53" truth of the allegations contained in paragraphs through of the Complaint to the extent that such allegations relate to other parties and refers all questions of law to this honorable Court. AS TO THE FOURTH CAUSE OF ACTION AGAINST ALL OTHER DEFENDANTS 15. Honeywell repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to "54" paragraph of the Complaint. "55" "64" 16. Honeywell denies the allegations contained in paragraphs through of the Complaint to the extent that such allegations are directed towards Honeywell and refers all questions of law to this honorable Court. 3 3 of 18 FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 17. Honeywell denies knowledge or information sufficient to form a belief as to the "55" "64" truth of the allegations contained in paragraphs through of the Complaint to the extent that such allegations relate to other parties and refers all questions of law to this honorable Court. AS TO THE FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS 18. Honeywell repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to "65" paragraph of the Complaint. "66" "83" 19. Honeywell denies the allegations contained in paragraphs through of the Complaint to the extent that such allegations are directed towards Honeywell and refers all questions of law to this honorable Court. 20. Honeywell denies knowledge or information sufficient to form a belief as to the "66" "83" truth of the allegations contained in paragraphs through of the Complaint to the extent that such allegations relate to other parties and refers all questions of law to this honorable Court. AS TO THE SIXTH CAUSE OF ACTION AGAINST DEFENDANTS 21. Honeywell repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to "84" paragraph of the Complaint. 22. Honeywell denies knowledge or information sufficient to form a belief as to the "85" truth of the allegations contained in paragraph of the Complaint and refers all questions of law to this honorable Court. "86" 23. Honeywell denies the allegations contained in paragraph of the Complaint to the extent that such allegations are directed towards Honeywell and refers all questions of law to this honorable Court. 4 4 of 18 FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 24. Honeywell denies knowledge or information sufficient to form a belief as to the "86" truth of the allegations contained in paragraph of the Complaint to the extent that such allegations relate to other parties and refers all questions of law to this honorable Court. FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a cause of action. SECOND AFFIRMATIVE DEFENSE Plaintiff failed to properly serve Honeywell with the Summons and the Complaint and the Court lacks jurisdiction herein. THIRD AFFIRMATIVE DEFENSE The Court lacks personal jurisdiction over this answering Defendant. FOURTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of this action. FIFTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred because the Complaint is defective as a matter of law. SIXTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred by the applicable Statute of Limitations. SEVENTH AFFIRMATIVE DEFENSE The delay of the plaintiff in commencing suit is inexcusable and has resulted in prejudice to Honeywell, and the equitable doctrine of laches bars their claims. EIGHTH AFFIRMATIVE DEFENSE Plaintiff failed to bring the Complaint in the appropriate venue. NINTH AFFIRMATIVE DEFENSE Pursuant to General Obligations Law Section 15-108, Honeywell is entitled to set-off. 5 5 of 18 FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 TENTH AFFIRMATIVE DEFENSE Any recovery by plaintiffs herein must be reduced by collateral source payments pursuant to CPLR 4545. ELEVENTH AFFIRMATIVE DEFENSE If the answering Defendant is found liable, such liability is less than or equal to 50% of the total liability of all persons who may be found liable, and therefore, this answering Defendant's liability shall be limited to its equitable share pursuant to CPLR Section 1601. TWELFTH AFFIRMATIVE DEFENSE If the causes of action, based upon statutory liability as pleaded in the Complaint, are based upon expressed or implied warranties and/or representations, then the alleged breaches thereto, as against this answering Defendant, are legally insufficient by reason of their failure to allege privity of contract between the plaintiff and this answering Defendant. THIRTEENTH AFFIRMATIVE DEFENSE The answering Defendant gave, made or extended no warranties, whether express or implied, upon which plaintiff had a right to rely. FOURTEENTH AFFIRMATIVE DEFENSE The answering Defendant breached no warranties, whether express or implied. FIFTEENTH AFFIRMATIVE DEFENSE The Statute of Limitations is a complete and total bar as to any and all warranties allegedly presented or made in connection with the alleged sale, manufacture, distribution, supply, testing, design, packaging or delivery of the asbestos product(s) to which plaintiff's allegedly came into contact. 6 6 of 18 FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 SIXTEENTH AFFIRMATIVE DEFENSE If the causes of action based upon statutory liability are founded upon any oral warranties or undertakings on the part of the answering Defendant upon which the plaintiff might rely, they are inadmissible and unavailable pursuant to the provisions of the Statute of Frauds. SEVENTEENTH AFFIRMATIVE DEFENSE That insofar as the Complaint and each cause of action of each plaintiff considered separately alleges a cause of action occurring on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by the plaintiffs' comparative negligence, in the proportion which the culpable conduct attributable to the plaintiff bears upon the culpable conduct which caused the damages. EIGHTEENTH AFFIRMATIVE DEFENSE That insofar as the causes of action herein considered separately occurred before September 1, 1975, such causes of action are barred by reason of the contributory negligence of the plaintiff. NINETEENTH AFFIRMATIVE DEFENSE That plaintiff was barred from any recovery against this answering Defendant by the doctrine of assumption of the risk. TWENTIETH AFFIRMATIVE DEFENSE That plaintiff contributed to the alleged illness, either in whole or part, by the use of other substances, products, medications and/or drugs. TWENTY-FIRST AFFIRMATIVE DEFENSE That plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the Complaint. 7 7 of 18 FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 TWENTY-SECOND AFFIRMATIVE DEFENSE In the event that plaintiff was employed by this answering Defendant, such plaintiff's sole Workers' remedy is under the Compensation Law and said plaintiff cannot recover from this Defendant in this action. TWENTY-THIRD AFFIRMATIVE DEFENSE That the plaintiff's employer(s) were sophisticated purchasers and/or users of the products referred to in plaintiff's Complaint and upon whom devolved all responsibility for such use. TWENTY-FOURTH AFFIRMATIVE DEFENSE That the matters that are the subject of the plaintiff's Complaint are attributable to third parties over whom this answering Defendant had neither control nor right of control. TWENTY-FIFTH AFFIRMATIVE DEFENSE That if plaintiff should prove that deceased sustained injuries and damages as alleged, such injuries and damages resulted from acts or omissions on the part of third parties, including deceased plaintiff's employer(s), over whom this Defendant had neither control nor right of control and for whose acts or omissions this answering Defendant is not liable. TWENTY-SIXTH AFFIRMATIVE DEFENSE This answering Defendant denies the allegations of the plaintiffs with respect to negligence, statutory liability, strict liability, injury and damages, and to the extent that plaintiff may be able to prove the same, they were the result of intervening and/or interceding acts of superseding negligence or other conduct on the part of parties over which this Defendant has neither control nor right of control. TWENTY-SEVENTH AFFIRMATIVE DEFENSE This answering Defendant reserves the right to amend its answer and to assert additional cross claims and/or otherwise counterclaims as to any party named herein, who may have, is or will be declared bankrupt or otherwise files a petition under the Bankruptcy Code, pursuant to 8 8 of 18 FILED: RENSSELAER COUNTY CLERK 11/07/2023 10:07 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 11/07/2023 CPLR Article 16 and to the decision of Justice Helen E. Freedman, previous presiding judge for the New York City Asbestos Litigation (October 28, 2002). TWENTY-EIGHTH AFFIRMATIVE DEFENSE plaintiffs' Plaintiff's claims are barred because of failure to join necessary and indispensable parties. TWENTY-NINTH AFFIRMATIVE DEFENSE That during the periods of exposure alleged in the Complaint by the plaintiff, this answering Defendant denies specifically that it mined, processed, manufactured, designed, sold, delivered, supplied, developed, tested, fashioned, packaged, distributed and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos products to which plaintiffs allegedly were caused to come into contact and were allegedly caused to breathe, inhale and/or digest, and which allegedly caused plaintiff's injuries and resulting damages. In the event it should be proved at the time of trial that all defendants are subject to market share liability, then this Defendant's share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and this answering Defendant will be entitled to contribution either in whole or part from the other answering Defendants. THIRTIETH AFFIRMATIVE DEFENSE That no enterprise liability lies against this answering Defendant herein. THIRTY-FIRST AFFIRMATIVE DEFENSE That at all times during the conduct of the corporate operations, the agents, servants and/or employees of this answering Defendant, utilized proper methods of manufacture of products in conformity with the state of the art and the