Preview
FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
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WAYNE VAN AMBURGH and JUDITH VAN AMBURGH,
Date Filed:
Plaintiff(s), Plaintiff Designates
RENSSELAER
-against- County as the Place of Trial
AMCHEM PRODUCTS, INC., The Basis of Venue is
Defendants’ Place of Business
n/k/a RHONE POULENC AG COMPANY,
n/k/a BAYER CROPSCIENCE INC., SUPPLEMENTAL
GENERAL ELECTRIC COMPANY, SUMMONS
GOULDS PUMPS LLC,
GRINNELL LLC,
HONEYWELL INTERNATIONAL, INC.,
f/k/a HONEYWELL INC.,
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. (PFIZER),
REDCO CORPORATION f/k/a CRANE CO.,
SPIRAX SARCO, INC.
Individually and as successor to SARCO COMPANY,
U.S. RUBBER COMPANY (UNIROYAL),
UNION CARBIDE CORPORATION,
CARRIER CORPORATION,
WARREN PUMPS, LLC,
Defendants
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To the above named Defendant(s)
You are hereby summoned to answer the second amended verified complaint in this action
and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a
notice of appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons,
exclusive of the day of service (or within 30 days after the service is complete if this summons is not
personally delivered to you within the State of New York); and in case of your failure to appear or
answer, judgment will be taken against you by default for the relief demanded in the complaint
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Dated, December 04, 2023
New York, New York
WEITZ & LUXENBERG, P.C.
Defendant's address: Attorney(s) for Plaintiff
Post Office Address
SEE ATTACHED DEFENDANTS RIDER 700 Broadway
New York, New York 10003
(212) 558-5500
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DEFENDANTS' RIDER
Jennifer Darger Esq
Judith Yavitz Esq
DARGER ERRANTE YAVITZ & BLAU LLP
116 East 27th Street
12th Floor
New York, NY 10016
(212) 452-5300
fax:(212) 452-5301
Attorneys for Defendant:
AMCHEM PRODUCTS, INC.,
n/k/a RHONE POULENC AG COMPANY,
n/k/a BAYER CROPSCIENCE INC.
UNION CARBIDE CORPORATION
Michael Tanenbaum Esq
TANENBAUM KEALE LLP
Three Gateway Center
Suite 1301
Newark, NJ 07102
(973) 242-0002
fax:(973) 242-8099
Attorneys for Defendant:
GENERAL ELECTRIC COMPANY
Beth Hughes Esq
Brady Edwards Esq.
MORGAN LEWIS & BOCKIUS LLP
1000 Louisiana Street, Suite 4000
Houston, TX 77002
(212) 309-6000
fax:(212) 309-6001
Attorneys for Defendant:
GOULDS PUMPS LLC
GRINNELL LLC
ITT LLC.,
Individually and as successor to BELL & GOSSETT
and as successor to KENNEDY VALVE
MANUFACTURING CO., Inc.
Peter Neeson Esq.
Esq.
RAWLE & HENDERSON, LLP
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The Widener Building
One South Penn Square, 16th Floor
Philadelphia, PA 19107
(215) 575-4200
Attorneys for Defendant:
HONEYWELL INTERNATIONAL, INC.,
f/k/a HONEYWELL INC.
Michael Masino Esq
HARRIS BEACH, LLP
99 Garnsey Road
Pittsford, NY 14534
(585) 419-8800
fax:(585) 419-8801
Attorneys for Defendant:
HONEYWELL INTERNATIONAL, INC.,
f/k/a ALLIED SIGNAL, INC. / BENDIX
David Goodearl Esq.
Joseph Colao Esq.
LEADER BERKON COLAO & SILVERSTEIN LLP
630 Third Avenue
17th Floor
New York, NY 10017
(212) 486-2400
fax:(212) 486-3099
Attorneys for Defendant:
IMO INDUSTRIES, INC.,
SPIRAX SARCO, INC.
Individually and as successor to SARCO COMPANY
Alex Feigenbaum Esq.
Jeffrey Fegan Esq
Peter Dinunzio Esq.
CLYDE & CO US LLP
The Chrysler Building
405 Lexington Avenye 16th Floor
New York, NY 10174
(212) 710-3913
fax:(212) 710-3950
Attorneys for Defendant:
JENKINS BROS.
Legal Department
LIBERTY MUTUAL GROUP INC.
175 Berkeley Street
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Boston, MA 02116
(617) 357-9500
fax:(603) 334-8087
Attorneys for Defendant:
JENKINS BROS.
Thuy Bui Esq
FAEGRE DRINKER BIDDLE & REATH LLP (NY)
1177 Avenue of the Americas
41st Floor
NEW YORK, NY 10036
(212) 248-3140
fax:(212) 248-3141
Attorneys for Defendant:
NELES-JAMESBURY INC.
Joan Gasior Esq
RENZULLI LAW FIRM, LLP
1 North Broadway
Suite 1005
White Plains, NY 10601
(914) 285-0700
fax:(914) 285-1213
Attorneys for Defendant:
PFIZER, INC. (PFIZER)
Tara Pehush Esq.
K & L GATES LLP
599 Lexington Avenue
32nd Floor
New York, NY 10022
(212) 536-3900
fax:(212) 536-3901
Attorneys for Defendant:
REDCO CORPORATION f/k/a CRANE CO.
Jeff Botwinick Esq.
GREENFIELD, STEIN & SENIOR
600 Third Avenue, 11th Floor
New York, NY 10016
(212) 818-9600
fax:(212) 818-1264
Attorneys for Defendant:
U.S. RUBBER COMPANY (UNIROYAL)
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CARRIER CORPORATION
600 Mamaroneck Avenue, #400
Harrison, NY 10528
WARREN PUMPS, LLC
CT Corporation
1209 Orange Street
Wilmington, DE 19801
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
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WAYNE VAN AMBURGH and JUDITH VAN AMBURGH,
Date Filed:
Plaintiff(s),
SECOND
-against- AMENDED
VERIFIED
AMCHEM PRODUCTS, INC., COMPLAINT
n/k/a RHONE POULENC AG COMPANY,
n/k/a BAYER CROPSCIENCE INC., PLAINTIFF DEMANDS
GENERAL ELECTRIC COMPANY, TRIAL BY JURY
GOULDS PUMPS LLC,
GRINNELL LLC,
HONEYWELL INTERNATIONAL, INC.,
f/k/a HONEYWELL INC.,
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. (PFIZER),
REDCO CORPORATION f/k/a CRANE CO.,
SPIRAX SARCO, INC.
Individually and as successor to SARCO COMPANY,
U.S. RUBBER COMPANY (UNIROYAL),
UNION CARBIDE CORPORATION,
CARRIER CORPORATION,
WARREN PUMPS, LLC,
Defendants
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Plaintiff(s), by his/her attorneys, upon information and belief, at all times hereinafter
mentioned, allege as follows:
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1. Plaintiff(s), WAYNE VAN AMBURGH and JUDITH VAN
AMBURGH, is a resident and citizen of the State of New York; .
2. The terms ‘Defendant’ or ‘Defendants’ as used herein shall apply
to all named business and/or corporate entities and/or such company’s predecessor(s) and/or
successor(s) in interest.
3. The Defendants named herein have done business in this State
and/or have conducted and/or transacted business in this state, have committed one or more
tortious acts within this State and/or have otherwise performed acts within and/or without this
State giving rise to injuries and losses within this State, which acts subject each Defendant to the
jurisdiction of the Courts of this State.
4. Defendant AMCHEM PRODUCTS, INC., n/k/a RHONE
POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., was and still is a duly
organized domestic corporation doing business in the State of New York.
5. Defendant CARRIER CORPORATION, was and still is a duly
organized domestic corporation doing business in the State of New York.
6. Defendant GENERAL ELECTRIC COMPANY, was and still is a
duly organized domestic corporation doing business in the State of New York.
7. Defendant GOULDS PUMPS LLC, was and still is a duly
organized domestic corporation doing business in the State of New York.
8. Defendant GRINNELL LLC, was and still is a duly organized
domestic corporation doing business in the State of New York.
9. Defendant HONEYWELL INTERNATIONAL, INC.,
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f/k/a HONEYWELL INC., was and still is a duly organized domestic corporation doing
business in the State of New York.
10. Defendant HONEYWELL INTERNATIONAL, INC., f/k/a
ALLIED SIGNAL, INC. / BENDIX, was and still is a duly organized domestic corporation
doing business in the State of New York.
11. Defendant IMO INDUSTRIES, INC.,, was and still is a duly
organized domestic corporation doing business in the State of New York.
12. Defendant ITT LLC., Individually and as successor to BELL &
GOSSETT and as successor to KENNEDY VALVE MANUFACTURING CO., Inc., was and
still is a duly organized domestic corporation doing business in the State of New York.
13. Defendant JENKINS BROS., was and still is a duly organized
domestic corporation doing business in the State of New York.
14. Defendant NELES-JAMESBURY INC., was and still is a duly
organized domestic corporation doing business in the State of New York.
15. Defendant PFIZER, INC. (PFIZER), was and still is a duly
organized domestic corporation doing business in the State of New York.
16. Defendant REDCO CORPORATION f/k/a CRANE CO., was and
still is a duly organized domestic corporation doing business in the State of New York.
17. Defendant SPIRAX SARCO, INC. Individually and as successor
to SARCO COMPANY, was and still is a duly organized domestic corporation doing business in
the State of New York.
18. Defendant U.S. RUBBER COMPANY (UNIROYAL), was and
still is a duly organized domestic corporation doing business in the State of New York.
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19. Defendant UNION CARBIDE CORPORATION, was and still is a
duly organized domestic corporation doing business in the State of New York.
20. Defendant WARREN PUMPS, LLC, was and still is a duly
organized domestic corporation doing business in the State of New York.
AS AND FOR A FIRST CAUSE OF ACTION
AGAINST ALL DEFENDANTS
21. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained hereinabove in paragraphs "1" through "20" inclusive with the same force
and effect as if hereinafter set forth at length.
22. Plaintiff continuously worked with and was exposed to the
asbestos and asbestos-containing products and materials mined, manufactured, processed,
imported, converted, compounded, installed, or sold by the defendants. During the course of his
employment, plaintiff was exposed to the defendants' asbestos and asbestos containing materials
to which exposure directly and proximately caused him to develop an asbestos related disease.
23. Upon information and belief, the defendants mined, processed,
manufactured, designed, fabricated, fashioned, packaged, distributed, sold and/or delivered
various asbestos-containing products and materials and/or asbestos containing equipment to
which plaintiff was exposed during the period of time he was employed.
24. At all times pertinent hereto the defendants acted through their
duly authorized agents, servants, and employees, who were then and there acting in the course of
and scope of their employment and in furtherance of the business of said defendants.
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25. During the scope and course of plaintiff’s employment he was
necessarily and unavoidably exposed to and did inhale and ingest dust and/or asbestos fibers
emanating from the asbestos and asbestos-containing products and/or equipment of the
defendants.
26. As a proximate result of the exposure to the asbestos and asbestos
containing products and/or equipment of these defendants, and the unavoidable and necessary
inhalation of said asbestos, plaintiff developed an asbestos related disease.
27. At all relevant times, the defendants knew or should have known
that the asbestos and asbestos-containing products and materials which they were providing were
inherently dangerous beyond the expectations of the ordinary user or handler who would come
into contact with these products.
28. The defendants negligently failed to provide any or adequate and
proper warnings as to the dangers of the use of said products and materials to those persons
using, handling, or coming into contact therewith.
29. The defendants negligently failed to warn and failed to provide
adequate instructions of any potentially safer handling methods which should have been utilized
by users, handlers, or other persons who were reasonably and foreseeably known to come into
contact with the asbestos-containing products and/or equipment and materials.
30. The defendants negligently failed to investigate and/or test for the
hazards of asbestos products and materials.
31. To the extent that some defendants may have inquired as to the
hazards of said materials, the defendants negligently failed to convey whatever knowledge of
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dangers, health hazards, or safety precautions they may have had to the users and consumers of
their asbestos-containing products.
32. The defendants negligently failed to develop, make available
and/or provide nonhazardous substitutes which could have been used for the same purpose as
their asbestos-containing products and/or equipment.
33. The defendants negligently failed to design asbestos-containing
products and/or equipment in such a fashion as to prohibit or minimize the release of airborne,
inhalable and ingestible asbestos dust and/or fibers.
34. As a direct result of working with or near the asbestos materials
supplied by the defendants with the consequent unavoidable and necessary inhalation and
ingestion of said asbestos fibers, plaintiff developed an asbestos related disease and as a result
has been disabled. Plaintiff has suffered and endured great pain and mental anguish and suffered
a loss of enjoyment of his life.
35. The asbestos related disease of the plaintiff was proximately
caused by the defendants' negligent actions in that, inter alia, they negligently designed,
processed, manufactured, packaged, distributed, delivered and/or installed the asbestos-
containing products to which the plaintiff was exposed, all of which evidenced a callous,
reckless, wanton, oppressive, malicious, willful, depraved indifference to the health, safety and
welfare of the rights of others and more particularly the rights of the plaintiff, all of which
defendants had due and timely notice.
36. Defendants negligently failed to render warnings, advise, give
instructions and/or information to plaintiff so that he may have made an adequate and informed
judgment as to the use of said products and were otherwise negligent.
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37. The defendants individually and as a group since the early 1900's
have possessed medical and scientific data which clearly indicates that their asbestos-containing
products are hazardous to health; and prompted by pecuniary motives, the defendants
individually and collectively ignored and failed to act upon said medical and scientific data and
conspired to deprive the public and particularly the users including plaintiff of said medical and
scientific data and therefore deprived the public at large and the plaintiff in particular, of the
opportunity of free choice as to whether or not to expose himself to the asbestos and asbestos-
containing products of said defendants; and further willfully, intentionally and wantonly failed to
warn plaintiff of the serious bodily harm which would result from the inhalation of their asbestos
fibers and the dust from their asbestos products.
38. The defendants utter failure to use reasonable care under all the
circumstances is the proximate cause of plaintiff's asbestos related disease.
39. As a result of the foregoing plaintiff was seriously injured.
40. By reason of the foregoing, said plaintiff(s) has been damaged as
against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in
compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages.
AS AND FOR A SECOND CAUSE OF ACTION
AGAINST ALL DEFENDANTS
41. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" through "40", with the same force and effect as if
hereinafter set forth at length.
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42. The defendants expressly and impliedly warranted that said
asbestos and asbestos-containing materials were of good and merchantable quality and fit for
intended use.
43. The implied/express warranties made by the defendants that their
asbestos and asbestos-containing materials were of good and merchantable quality and fit for
their particular use were breached in that certain harmful, poisonous and deleterious matter was
given off into the atmosphere where plaintiff carried out his duties working with and around
asbestos and asbestos-containing materials.
44. As a direct and/or proximate cause of the breach of the
implied/express warranties of good and merchantable quality and fitness for the particular use,
plaintiff developed an asbestos related disease and was caused to endure great pain and suffering.
45. Plaintiff was seriously injured.
46. By reason of the foregoing, plaintiff(s) has been damaged as
against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in
compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages.
AS AND FOR A THIRD CAUSE OF ACTION
AGAINST ALL DEFENDANTS
47. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" through "46", with the same force and effect as if
hereinafter set forth at length.
48. At all relevant times, defendants, as part of their business,
manufactured, designed, supplied, developed, fashioned, packaged, distributed, delivered,
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installed, sold, and/or otherwise placed asbestos and asbestos products and/or equipment and
materials into the stream of commerce in a defective, unsafe and inherently dangerous condition
and the products and materials were expected to and did reach users, handlers and persons
coming into contact with the said products and materials without substantial change in the
condition in which they were sold.
49. The asbestos-containing products and/or equipment sold by the
defendants did not contain a warning and/or information concerning the dangers to persons
using, handling or coming into contact therewith.
50. The asbestos-containing products and/or equipment sold by the
defendants did not contain adequate and/or correct warnings and instructions of safety
precautions to be observed by users, handlers, and persons who would reasonably and
foreseeably come into contact with said products and/or equipment.
51. That at all times herein, the products and/or equipment being used
herein were being employed for the purposes and in the manner normally intended and the
defects of the said products were not discoverable by the plaintiff by the exercise of reasonable
care, nor were the dangers of said products perceivable on the part of the plaintiff and the
plaintiff would not have otherwise averted his injury by the exercise of reasonable care.
52. Said asbestos and asbestos-containing materials were defective and
dangerous at the time they were sold as the products and/or equipment contained a latent defect
and were harmful, poisonous and deleterious when introduced into the atmosphere where the
plaintiff carried on his work duties.
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53. The defendants selling their asbestos and asbestos-containing
materials in a defective and dangerous condition to the users thereof, such as the plaintiff, are
strictly liable to the plaintiff for any illness resulting from said defective products.
54. As a direct and proximate result of the sale by the defendants to
plaintiff's employers, and/or other contractors, of said defective and unreasonably dangerous
products and/or equipment the plaintiff sustained serious and permanent injuries and suffered a
loss of enjoyment of his life.
55. Plaintiff was seriously injured.
56. That by reason of the foregoing, plaintiff(s) has been damaged as
against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in
compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages.
AS AND FOR A FOURTH CAUSE OF ACTION
AGAINST ALL OTHER DEFENDANTS
57. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained in paragraphs "1" through "56" and inclusive with the same force and effect
as if hereinafter set forth at length.
58. Defendants, collectively and individually manufactured, designed,
selected, assembled, inspected, tested, maintained for sale, marketed, distributed, installed, sold,
supplied, delivered and promoted asbestos and asbestos-containing products which were
generically similar and fungible in nature; and placed such products into the stream of interstate
commerce.
59. Plaintiff, through no fault of his own, may not be able to identify
all the asbestos-containing products or their manufacturers, marketers, sellers, distributors, or
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promoters due to the generic similarity and fungible nature of such products as produced by
these defendants.
60. As a direct and proximate result of the defendants' activities
plaintiff was exposed to asbestos-containing products and sustained injuries and damage as
described above.
61. By reason of the abovementioned, defendants are jointly and
severally liable to the plaintiff for the injuries and damages sustained by him as described above
by virtue of industry-wide or enterprise liability.
62. In the alternative, defendants herein represent a substantial share of
the asbestos-containing product market within the area in which plaintiff was employed.
63. Defendants manufactured, designed, selected, assembled,
marketed, distributed, sold, supplied, delivered and promoted asbestos-containing products of the
kind and nature to which plaintiff was exposed during the period of his employment.
64. Independent of the above, defendants are also jointly and severally
liable to plaintiff, as the limitations of liability articulated in New York CPLR section 1601 do
not apply to the plaintiff's cause of action by operation of the exceptions set forth in New York
CPLR section 1602, which state that the limitations shall:
(7) Not apply to any person held liable for causing claimant's
injury by having acted with reckless disregard for the safety
of others.
(8) Not apply to any person held liable by reason of the
applicability of article ten of the labor law.
(10) Not apply to any person held liable in a product liability
action where the manufacturer of the product is not a party
to the action and the claimant establishes by a
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preponderance of the evidence that jurisdiction over the
manufacturer could not with due diligence be obtained and
that if the manufacturer were a party to the action, liability
for claimant's injury would have been imposed upon said
manufacturer by reason of the doctrine of strict liability, to
the extent of the equitable share of such manufacturer.
(11) Not apply to any parties found to have acted knowingly or
intentionally, and in concert, to cause the acts or failures
upon which liability is based; provided, however, that
nothing in this subdivision shall be construed to create,
impair, alter, limit, modify, enlarge, abrogate, or restrict
any theory of liability upon which said parties may be held
liable to the claimant.
65. Therefore, defendants are jointly and severally liable to the
plaintiff for the injuries and damages sustained by him which were directly and proximately
caused by plaintiff's exposure to asbestos-containing products and promoted by the defendants
based on the several defendants pro rata market share within the market described herein.
66. Plaintiff was seriously injured.
67. By reason of the foregoing, plaintiff(s) has been damaged as
against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in
compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages.
AS AND FOR A FIFTH CAUSE OF ACTION
AS AGAINST ALL DEFENDANTS
68. Plaintiff(s) repeats, reiterates and realleges each and every
allegation contained in paragraphs “1" through “ 67" with the same force and effect as if
hereinafter set forth at length.
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69. Defendants, their subsidiaries, agents and/or servants were/are
owners, possessors, lessors, lessees, operators, controllers, managers, supervisors, general
contractors, subcontractors, architects, engineers or were otherwise responsible for the
maintenance, control and/or safety at the premises on which plaintiff was lawfully frequenting
and exposed to asbestos.
70. Defendants, their subsidiaries, agents, and/or servants had a legal
duty to maintain and keep those premises in a safe and proper condition.
71. At all times relevant hereto, plaintiff was lawfully frequenting the
premises on which plaintiff was exposed to asbestos.
72. At all times relevant hereto, plaintiff's presence on the premises on
which plaintiff was exposed to asbestos was known or knowable to the defendants.
73. Defendants, their subsidiaries, agents, and/or servants negligently
created, caused and/or permitted to exist, an unsafe, hazardous and/or dangerous condition to
exist by specifying, using and/or permitting the presence of asbestos and/or asbestos containing
products, equipment and/or fixtures at the premises where the plaintiff was exposed to asbestos.
74. Defendants, their subsidiaries, agents, and/or servants negligently
permitted a defective, hazardous and/or dangerous condition to remain uncorrected and/or
unchanged at the premises at which the plaintiff was present and exposed to asbestos.
75. Defendants, their subsidiaries, agents, and/or servants knew, or
should have known, of the existence of the unsafe, hazardous and/or dangerous condition and
failed to correct this dangerous condition.
76. Defendants, their subsidiaries, agents, and/or servants knew, or
should have known, of the existence of the unsafe, hazardous and/or dangerous condition and
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failed to warn the plaintiff of the existence of the dangerous condition and/or provide the
plaintiff the means to protect himself from this dangerous condition.
77. Defendants, their subsidiaries, agents, and/or servants violated the
common law duty to maintain a safe work place for individuals, such as plaintiff, who were
working in, lawfully frequenting and exposed to asbestos on premises owned, maintained and/or
controlled by them.
78. Defendants, their subsidiaries, agents, and/or servants violated
New York Labor Law sections 200 et seq., including, but not limited to, section 200 and 241 (6)
and the New York Industrial Code 12 NYCRR section 12 and 23 by their failure to provide a
safe workplace, including, but not limited to, failing to make reasonable inspections to detect
dangerous conditions and hidden defects and to warn of dangers of which they knew or should
have known, and by their failure to provide reasonable and adequate protection for individuals,
such as plaintiff, who was lawfully at a construction site owned, maintained and/or controlled by
them. Inter alia:
(a) Defendants, their subsidiaries, agents and/or servants violated the New
York State Industrial Code section 12, subsection 1.4, which states that:
(a) All operations or processes which produce air contaminants shall
be so conducted that the generation, release or dissemination of
such contaminants is kept at the lowest practicable level in
compliance with this Part (rule) using proper control or protective
procedures and equipment.
(b) (1) Every employer shall effect compliance with the
provisions of this Part (rule) relating to the prevention and removal
of air contaminants, the storage and use of flammable liquids and
the provision, installation, operation and maintenance of control or
protective equipment.
(2) Every employer shall instruct his employees as to
the hazards of their work, the use of the control or
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NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023
protective equipment and their responsibility for
complying with the provisions of this Part (rule).
(3) No employer shall suffer or permit an employee to
work in a room in which their exist dangerous air
contaminants in a work atmosphere.
(4) No employer shall suffer or permit dangerous air
contaminants to accumulate or remain in any place
or area subject to the provisions of this Part (rule).
(b) Defendants, their subsidiaries, agents, and/or servants violated New York
State Industrial Code section 12, subsection 1.5, which states that:
(a) (1) Personal respiratory protective equipment shall not
be used in lieu of other control methods, except for
protection of employees in emergencies and in the
repair, maintenance or adjustment or equipment or
processes, or upon specific approval by the board
(c) Defendants, their subsidiaries, agents, and/or servants violated New York
State Industrial Code section 12, subsection 1.6 (formerly section 12.9),
which states that:
(a) One or more of the following methods shall be used to prevent,
remove or control dangerous air contaminants:
(1) Substitution of a material or a method which does not
produce dangerous air contaminants.
(2) Local exhaust ventilation conforming to the requirements
of Industrial Code Part (Rule No.) 18.
(3) Dilution ventilation.
(4) Application of water or other wetting agent.
(5) Enclosure or isolation
(6) other methods approved by the board.
(d) As evidence of defendants', their subsidiaries', agents' and/or servants'
violation of the abovementioned sections of the New York State Industrial
Code, defendants, their subsidiaries, agents and/or servants permitted
asbestos dust concentrations above the 5mppcf threshold limit value
specified in section 12, subsection 3.1, without providing the required
reasonable and adequate protective measures, thereby rendering the
Preview
FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER -----------------------------------------------------------------------------X Index No.: EF2023-275073 WAYNE VAN AMBURGH and JUDITH VAN AMBURGH, Date Filed: Plaintiff(s), Plaintiff Designates RENSSELAER -against- County as the Place of Trial AMCHEM PRODUCTS, INC., The Basis of Venue is Defendants’ Place of Business n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., SUPPLEMENTAL GENERAL ELECTRIC COMPANY, SUMMONS GOULDS PUMPS LLC, GRINNELL LLC, HONEYWELL INTERNATIONAL, INC., f/k/a HONEYWELL INC., 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. (PFIZER), REDCO CORPORATION f/k/a CRANE CO., SPIRAX SARCO, INC. Individually and as successor to SARCO COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, CARRIER CORPORATION, WARREN PUMPS, LLC, Defendants -----------------------------------------------------------------------------X To the above named Defendant(s) You are hereby summoned to answer the second amended verified complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint 1 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 Dated, December 04, 2023 New York, New York WEITZ & LUXENBERG, P.C. Defendant's address: Attorney(s) for Plaintiff Post Office Address SEE ATTACHED DEFENDANTS RIDER 700 Broadway New York, New York 10003 (212) 558-5500 2 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 DEFENDANTS' RIDER Jennifer Darger Esq Judith Yavitz Esq DARGER ERRANTE YAVITZ & BLAU LLP 116 East 27th Street 12th Floor New York, NY 10016 (212) 452-5300 fax:(212) 452-5301 Attorneys for Defendant: AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC. UNION CARBIDE CORPORATION Michael Tanenbaum Esq TANENBAUM KEALE LLP Three Gateway Center Suite 1301 Newark, NJ 07102 (973) 242-0002 fax:(973) 242-8099 Attorneys for Defendant: GENERAL ELECTRIC COMPANY Beth Hughes Esq Brady Edwards Esq. MORGAN LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 (212) 309-6000 fax:(212) 309-6001 Attorneys for Defendant: GOULDS PUMPS LLC GRINNELL LLC ITT LLC., Individually and as successor to BELL & GOSSETT and as successor to KENNEDY VALVE MANUFACTURING CO., Inc. Peter Neeson Esq. Esq. RAWLE & HENDERSON, LLP 3 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 The Widener Building One South Penn Square, 16th Floor Philadelphia, PA 19107 (215) 575-4200 Attorneys for Defendant: HONEYWELL INTERNATIONAL, INC., f/k/a HONEYWELL INC. Michael Masino Esq HARRIS BEACH, LLP 99 Garnsey Road Pittsford, NY 14534 (585) 419-8800 fax:(585) 419-8801 Attorneys for Defendant: HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX David Goodearl Esq. Joseph Colao Esq. LEADER BERKON COLAO & SILVERSTEIN LLP 630 Third Avenue 17th Floor New York, NY 10017 (212) 486-2400 fax:(212) 486-3099 Attorneys for Defendant: IMO INDUSTRIES, INC., SPIRAX SARCO, INC. Individually and as successor to SARCO COMPANY Alex Feigenbaum Esq. Jeffrey Fegan Esq Peter Dinunzio Esq. CLYDE & CO US LLP The Chrysler Building 405 Lexington Avenye 16th Floor New York, NY 10174 (212) 710-3913 fax:(212) 710-3950 Attorneys for Defendant: JENKINS BROS. Legal Department LIBERTY MUTUAL GROUP INC. 175 Berkeley Street 4 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 Boston, MA 02116 (617) 357-9500 fax:(603) 334-8087 Attorneys for Defendant: JENKINS BROS. Thuy Bui Esq FAEGRE DRINKER BIDDLE & REATH LLP (NY) 1177 Avenue of the Americas 41st Floor NEW YORK, NY 10036 (212) 248-3140 fax:(212) 248-3141 Attorneys for Defendant: NELES-JAMESBURY INC. Joan Gasior Esq RENZULLI LAW FIRM, LLP 1 North Broadway Suite 1005 White Plains, NY 10601 (914) 285-0700 fax:(914) 285-1213 Attorneys for Defendant: PFIZER, INC. (PFIZER) Tara Pehush Esq. K & L GATES LLP 599 Lexington Avenue 32nd Floor New York, NY 10022 (212) 536-3900 fax:(212) 536-3901 Attorneys for Defendant: REDCO CORPORATION f/k/a CRANE CO. Jeff Botwinick Esq. GREENFIELD, STEIN & SENIOR 600 Third Avenue, 11th Floor New York, NY 10016 (212) 818-9600 fax:(212) 818-1264 Attorneys for Defendant: U.S. RUBBER COMPANY (UNIROYAL) 5 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 CARRIER CORPORATION 600 Mamaroneck Avenue, #400 Harrison, NY 10528 WARREN PUMPS, LLC CT Corporation 1209 Orange Street Wilmington, DE 19801 6 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER ------------------------------------------------------------------------------X Index No: EF2023-275073 WAYNE VAN AMBURGH and JUDITH VAN AMBURGH, Date Filed: Plaintiff(s), SECOND -against- AMENDED VERIFIED AMCHEM PRODUCTS, INC., COMPLAINT n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., PLAINTIFF DEMANDS GENERAL ELECTRIC COMPANY, TRIAL BY JURY GOULDS PUMPS LLC, GRINNELL LLC, HONEYWELL INTERNATIONAL, INC., f/k/a HONEYWELL INC., 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. (PFIZER), REDCO CORPORATION f/k/a CRANE CO., SPIRAX SARCO, INC. Individually and as successor to SARCO COMPANY, U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, CARRIER CORPORATION, WARREN PUMPS, LLC, Defendants ------------------------------------------------------------------------------X Plaintiff(s), by his/her attorneys, upon information and belief, at all times hereinafter mentioned, allege as follows: 7 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 1. Plaintiff(s), WAYNE VAN AMBURGH and JUDITH VAN AMBURGH, is a resident and citizen of the State of New York; . 2. The terms ‘Defendant’ or ‘Defendants’ as used herein shall apply to all named business and/or corporate entities and/or such company’s predecessor(s) and/or successor(s) in interest. 3. The Defendants named herein have done business in this State and/or have conducted and/or transacted business in this state, have committed one or more tortious acts within this State and/or have otherwise performed acts within and/or without this State giving rise to injuries and losses within this State, which acts subject each Defendant to the jurisdiction of the Courts of this State. 4. Defendant AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., was and still is a duly organized domestic corporation doing business in the State of New York. 5. Defendant CARRIER CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York. 6. Defendant GENERAL ELECTRIC COMPANY, was and still is a duly organized domestic corporation doing business in the State of New York. 7. Defendant GOULDS PUMPS LLC, was and still is a duly organized domestic corporation doing business in the State of New York. 8. Defendant GRINNELL LLC, was and still is a duly organized domestic corporation doing business in the State of New York. 9. Defendant HONEYWELL INTERNATIONAL, INC., 8 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 f/k/a HONEYWELL INC., was and still is a duly organized domestic corporation doing business in the State of New York. 10. Defendant HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX, was and still is a duly organized domestic corporation doing business in the State of New York. 11. Defendant IMO INDUSTRIES, INC.,, was and still is a duly organized domestic corporation doing business in the State of New York. 12. Defendant ITT LLC., Individually and as successor to BELL & GOSSETT and as successor to KENNEDY VALVE MANUFACTURING CO., Inc., was and still is a duly organized domestic corporation doing business in the State of New York. 13. Defendant JENKINS BROS., was and still is a duly organized domestic corporation doing business in the State of New York. 14. Defendant NELES-JAMESBURY INC., was and still is a duly organized domestic corporation doing business in the State of New York. 15. Defendant PFIZER, INC. (PFIZER), was and still is a duly organized domestic corporation doing business in the State of New York. 16. Defendant REDCO CORPORATION f/k/a CRANE CO., was and still is a duly organized domestic corporation doing business in the State of New York. 17. Defendant SPIRAX SARCO, INC. Individually and as successor to SARCO COMPANY, was and still is a duly organized domestic corporation doing business in the State of New York. 18. Defendant U.S. RUBBER COMPANY (UNIROYAL), was and still is a duly organized domestic corporation doing business in the State of New York. 9 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 19. Defendant UNION CARBIDE CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York. 20. Defendant WARREN PUMPS, LLC, was and still is a duly organized domestic corporation doing business in the State of New York. AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS 21. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained hereinabove in paragraphs "1" through "20" inclusive with the same force and effect as if hereinafter set forth at length. 22. Plaintiff continuously worked with and was exposed to the asbestos and asbestos-containing products and materials mined, manufactured, processed, imported, converted, compounded, installed, or sold by the defendants. During the course of his employment, plaintiff was exposed to the defendants' asbestos and asbestos containing materials to which exposure directly and proximately caused him to develop an asbestos related disease. 23. Upon information and belief, the defendants mined, processed, manufactured, designed, fabricated, fashioned, packaged, distributed, sold and/or delivered various asbestos-containing products and materials and/or asbestos containing equipment to which plaintiff was exposed during the period of time he was employed. 24. At all times pertinent hereto the defendants acted through their duly authorized agents, servants, and employees, who were then and there acting in the course of and scope of their employment and in furtherance of the business of said defendants. 10 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 25. During the scope and course of plaintiff’s employment he was necessarily and unavoidably exposed to and did inhale and ingest dust and/or asbestos fibers emanating from the asbestos and asbestos-containing products and/or equipment of the defendants. 26. As a proximate result of the exposure to the asbestos and asbestos containing products and/or equipment of these defendants, and the unavoidable and necessary inhalation of said asbestos, plaintiff developed an asbestos related disease. 27. At all relevant times, the defendants knew or should have known that the asbestos and asbestos-containing products and materials which they were providing were inherently dangerous beyond the expectations of the ordinary user or handler who would come into contact with these products. 28. The defendants negligently failed to provide any or adequate and proper warnings as to the dangers of the use of said products and materials to those persons using, handling, or coming into contact therewith. 29. The defendants negligently failed to warn and failed to provide adequate instructions of any potentially safer handling methods which should have been utilized by users, handlers, or other persons who were reasonably and foreseeably known to come into contact with the asbestos-containing products and/or equipment and materials. 30. The defendants negligently failed to investigate and/or test for the hazards of asbestos products and materials. 31. To the extent that some defendants may have inquired as to the hazards of said materials, the defendants negligently failed to convey whatever knowledge of 11 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 dangers, health hazards, or safety precautions they may have had to the users and consumers of their asbestos-containing products. 32. The defendants negligently failed to develop, make available and/or provide nonhazardous substitutes which could have been used for the same purpose as their asbestos-containing products and/or equipment. 33. The defendants negligently failed to design asbestos-containing products and/or equipment in such a fashion as to prohibit or minimize the release of airborne, inhalable and ingestible asbestos dust and/or fibers. 34. As a direct result of working with or near the asbestos materials supplied by the defendants with the consequent unavoidable and necessary inhalation and ingestion of said asbestos fibers, plaintiff developed an asbestos related disease and as a result has been disabled. Plaintiff has suffered and endured great pain and mental anguish and suffered a loss of enjoyment of his life. 35. The asbestos related disease of the plaintiff was proximately caused by the defendants' negligent actions in that, inter alia, they negligently designed, processed, manufactured, packaged, distributed, delivered and/or installed the asbestos- containing products to which the plaintiff was exposed, all of which evidenced a callous, reckless, wanton, oppressive, malicious, willful, depraved indifference to the health, safety and welfare of the rights of others and more particularly the rights of the plaintiff, all of which defendants had due and timely notice. 36. Defendants negligently failed to render warnings, advise, give instructions and/or information to plaintiff so that he may have made an adequate and informed judgment as to the use of said products and were otherwise negligent. 12 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 37. The defendants individually and as a group since the early 1900's have possessed medical and scientific data which clearly indicates that their asbestos-containing products are hazardous to health; and prompted by pecuniary motives, the defendants individually and collectively ignored and failed to act upon said medical and scientific data and conspired to deprive the public and particularly the users including plaintiff of said medical and scientific data and therefore deprived the public at large and the plaintiff in particular, of the opportunity of free choice as to whether or not to expose himself to the asbestos and asbestos- containing products of said defendants; and further willfully, intentionally and wantonly failed to warn plaintiff of the serious bodily harm which would result from the inhalation of their asbestos fibers and the dust from their asbestos products. 38. The defendants utter failure to use reasonable care under all the circumstances is the proximate cause of plaintiff's asbestos related disease. 39. As a result of the foregoing plaintiff was seriously injured. 40. By reason of the foregoing, said plaintiff(s) has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS 41. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "40", with the same force and effect as if hereinafter set forth at length. 13 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 42. The defendants expressly and impliedly warranted that said asbestos and asbestos-containing materials were of good and merchantable quality and fit for intended use. 43. The implied/express warranties made by the defendants that their asbestos and asbestos-containing materials were of good and merchantable quality and fit for their particular use were breached in that certain harmful, poisonous and deleterious matter was given off into the atmosphere where plaintiff carried out his duties working with and around asbestos and asbestos-containing materials. 44. As a direct and/or proximate cause of the breach of the implied/express warranties of good and merchantable quality and fitness for the particular use, plaintiff developed an asbestos related disease and was caused to endure great pain and suffering. 45. Plaintiff was seriously injured. 46. By reason of the foregoing, plaintiff(s) has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS 47. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "46", with the same force and effect as if hereinafter set forth at length. 48. At all relevant times, defendants, as part of their business, manufactured, designed, supplied, developed, fashioned, packaged, distributed, delivered, 14 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 installed, sold, and/or otherwise placed asbestos and asbestos products and/or equipment and materials into the stream of commerce in a defective, unsafe and inherently dangerous condition and the products and materials were expected to and did reach users, handlers and persons coming into contact with the said products and materials without substantial change in the condition in which they were sold. 49. The asbestos-containing products and/or equipment sold by the defendants did not contain a warning and/or information concerning the dangers to persons using, handling or coming into contact therewith. 50. The asbestos-containing products and/or equipment sold by the defendants did not contain adequate and/or correct warnings and instructions of safety precautions to be observed by users, handlers, and persons who would reasonably and foreseeably come into contact with said products and/or equipment. 51. That at all times herein, the products and/or equipment being used herein were being employed for the purposes and in the manner normally intended and the defects of the said products were not discoverable by the plaintiff by the exercise of reasonable care, nor were the dangers of said products perceivable on the part of the plaintiff and the plaintiff would not have otherwise averted his injury by the exercise of reasonable care. 52. Said asbestos and asbestos-containing materials were defective and dangerous at the time they were sold as the products and/or equipment contained a latent defect and were harmful, poisonous and deleterious when introduced into the atmosphere where the plaintiff carried on his work duties. 15 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 53. The defendants selling their asbestos and asbestos-containing materials in a defective and dangerous condition to the users thereof, such as the plaintiff, are strictly liable to the plaintiff for any illness resulting from said defective products. 54. As a direct and proximate result of the sale by the defendants to plaintiff's employers, and/or other contractors, of said defective and unreasonably dangerous products and/or equipment the plaintiff sustained serious and permanent injuries and suffered a loss of enjoyment of his life. 55. Plaintiff was seriously injured. 56. That by reason of the foregoing, plaintiff(s) has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST ALL OTHER DEFENDANTS 57. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained in paragraphs "1" through "56" and inclusive with the same force and effect as if hereinafter set forth at length. 58. Defendants, collectively and individually manufactured, designed, selected, assembled, inspected, tested, maintained for sale, marketed, distributed, installed, sold, supplied, delivered and promoted asbestos and asbestos-containing products which were generically similar and fungible in nature; and placed such products into the stream of interstate commerce. 59. Plaintiff, through no fault of his own, may not be able to identify all the asbestos-containing products or their manufacturers, marketers, sellers, distributors, or 16 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 promoters due to the generic similarity and fungible nature of such products as produced by these defendants. 60. As a direct and proximate result of the defendants' activities plaintiff was exposed to asbestos-containing products and sustained injuries and damage as described above. 61. By reason of the abovementioned, defendants are jointly and severally liable to the plaintiff for the injuries and damages sustained by him as described above by virtue of industry-wide or enterprise liability. 62. In the alternative, defendants herein represent a substantial share of the asbestos-containing product market within the area in which plaintiff was employed. 63. Defendants manufactured, designed, selected, assembled, marketed, distributed, sold, supplied, delivered and promoted asbestos-containing products of the kind and nature to which plaintiff was exposed during the period of his employment. 64. Independent of the above, defendants are also jointly and severally liable to plaintiff, as the limitations of liability articulated in New York CPLR section 1601 do not apply to the plaintiff's cause of action by operation of the exceptions set forth in New York CPLR section 1602, which state that the limitations shall: (7) Not apply to any person held liable for causing claimant's injury by having acted with reckless disregard for the safety of others. (8) Not apply to any person held liable by reason of the applicability of article ten of the labor law. (10) Not apply to any person held liable in a product liability action where the manufacturer of the product is not a party to the action and the claimant establishes by a 17 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 preponderance of the evidence that jurisdiction over the manufacturer could not with due diligence be obtained and that if the manufacturer were a party to the action, liability for claimant's injury would have been imposed upon said manufacturer by reason of the doctrine of strict liability, to the extent of the equitable share of such manufacturer. (11) Not apply to any parties found to have acted knowingly or intentionally, and in concert, to cause the acts or failures upon which liability is based; provided, however, that nothing in this subdivision shall be construed to create, impair, alter, limit, modify, enlarge, abrogate, or restrict any theory of liability upon which said parties may be held liable to the claimant. 65. Therefore, defendants are jointly and severally liable to the plaintiff for the injuries and damages sustained by him which were directly and proximately caused by plaintiff's exposure to asbestos-containing products and promoted by the defendants based on the several defendants pro rata market share within the market described herein. 66. Plaintiff was seriously injured. 67. By reason of the foregoing, plaintiff(s) has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A FIFTH CAUSE OF ACTION AS AGAINST ALL DEFENDANTS 68. Plaintiff(s) repeats, reiterates and realleges each and every allegation contained in paragraphs “1" through “ 67" with the same force and effect as if hereinafter set forth at length. 18 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 69. Defendants, their subsidiaries, agents and/or servants were/are owners, possessors, lessors, lessees, operators, controllers, managers, supervisors, general contractors, subcontractors, architects, engineers or were otherwise responsible for the maintenance, control and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 70. Defendants, their subsidiaries, agents, and/or servants had a legal duty to maintain and keep those premises in a safe and proper condition. 71. At all times relevant hereto, plaintiff was lawfully frequenting the premises on which plaintiff was exposed to asbestos. 72. At all times relevant hereto, plaintiff's presence on the premises on which plaintiff was exposed to asbestos was known or knowable to the defendants. 73. Defendants, their subsidiaries, agents, and/or servants negligently created, caused and/or permitted to exist, an unsafe, hazardous and/or dangerous condition to exist by specifying, using and/or permitting the presence of asbestos and/or asbestos containing products, equipment and/or fixtures at the premises where the plaintiff was exposed to asbestos. 74. Defendants, their subsidiaries, agents, and/or servants negligently permitted a defective, hazardous and/or dangerous condition to remain uncorrected and/or unchanged at the premises at which the plaintiff was present and exposed to asbestos. 75. Defendants, their subsidiaries, agents, and/or servants knew, or should have known, of the existence of the unsafe, hazardous and/or dangerous condition and failed to correct this dangerous condition. 76. Defendants, their subsidiaries, agents, and/or servants knew, or should have known, of the existence of the unsafe, hazardous and/or dangerous condition and 19 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 failed to warn the plaintiff of the existence of the dangerous condition and/or provide the plaintiff the means to protect himself from this dangerous condition. 77. Defendants, their subsidiaries, agents, and/or servants violated the common law duty to maintain a safe work place for individuals, such as plaintiff, who were working in, lawfully frequenting and exposed to asbestos on premises owned, maintained and/or controlled by them. 78. Defendants, their subsidiaries, agents, and/or servants violated New York Labor Law sections 200 et seq., including, but not limited to, section 200 and 241 (6) and the New York Industrial Code 12 NYCRR section 12 and 23 by their failure to provide a safe workplace, including, but not limited to, failing to make reasonable inspections to detect dangerous conditions and hidden defects and to warn of dangers of which they knew or should have known, and by their failure to provide reasonable and adequate protection for individuals, such as plaintiff, who was lawfully at a construction site owned, maintained and/or controlled by them. Inter alia: (a) Defendants, their subsidiaries, agents and/or servants violated the New York State Industrial Code section 12, subsection 1.4, which states that: (a) All operations or processes which produce air contaminants shall be so conducted that the generation, release or dissemination of such contaminants is kept at the lowest practicable level in compliance with this Part (rule) using proper control or protective procedures and equipment. (b) (1) Every employer shall effect compliance with the provisions of this Part (rule) relating to the prevention and removal of air contaminants, the storage and use of flammable liquids and the provision, installation, operation and maintenance of control or protective equipment. (2) Every employer shall instruct his employees as to the hazards of their work, the use of the control or 20 of 27 FILED: RENSSELAER COUNTY CLERK 12/04/2023 01:01 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/04/2023 protective equipment and their responsibility for complying with the provisions of this Part (rule). (3) No employer shall suffer or permit an employee to work in a room in which their exist dangerous air contaminants in a work atmosphere. (4) No employer shall suffer or permit dangerous air contaminants to accumulate or remain in any place or area subject to the provisions of this Part (rule). (b) Defendants, their subsidiaries, agents, and/or servants violated New York State Industrial Code section 12, subsection 1.5, which states that: (a) (1) Personal respiratory protective equipment shall not be used in lieu of other control methods, except for protection of employees in emergencies and in the repair, maintenance or adjustment or equipment or processes, or upon specific approval by the board (c) Defendants, their subsidiaries, agents, and/or servants violated New York State Industrial Code section 12, subsection 1.6 (formerly section 12.9), which states that: (a) One or more of the following methods shall be used to prevent, remove or control dangerous air contaminants: (1) Substitution of a material or a method which does not produce dangerous air contaminants. (2) Local exhaust ventilation conforming to the requirements of Industrial Code Part (Rule No.) 18. (3) Dilution ventilation. (4) Application of water or other wetting agent. (5) Enclosure or isolation (6) other methods approved by the board. (d) As evidence of defendants', their subsidiaries', agents' and/or servants' violation of the abovementioned sections of the New York State Industrial Code, defendants, their subsidiaries, agents and/or servants permitted asbestos dust concentrations above the 5mppcf threshold limit value specified in section 12, subsection 3.1, without providing the required reasonable and adequate protective measures, thereby rendering the