Preview
FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
WAYNE VAN AMBURGH and JUDITH VAN AMBURGH,
Plaintiffs, VERIFIED ANSWER
TO AMENDED
-against-
COMPLAINT
AMCHEM PRODUCTS, INC., Index No. EF2023-275073
n/lda RHONE POULENC AG COMPANY,
n/1da BAYER CROPSCIENCE INC., et al.,
Defendants.
Defendant Honeywell Inc. / Honeywell International Inc. (hereinafter "Honeywell Inc."),
its plaintiffs'
by attorneys, Harris Beach PLLC, for its Answer to Amended states
Complaint,
upon information and belief as follows:
1. Denies the allegations contained in paragraphs "2", "3", "20", "21", "22", "23",
"24", "25", "26", "27", "28", "29", "30", "31", "33", "34", "35", "36", "37", "38", "40", "41",
"T3" " 1"
42", "16", "17", "18", "19", "50", "51", "52", "53", "54", "56"; "57"; "5G", "59",
"60", "61", "62", "63", "64", "65", "67", "68", "69", "70", "71", "72", "73", "74", "75", "76",
"84" "87" plaintiffs'
"77", "78", "79", "80", "81", "82", "83", and of Amended Complaint.
2. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraphs "1", "4", "5", "6", "7", "9", "10", "11", "12",
"18" "86" plaintiffs'
"13", "14", "15", "16", "17", and of Amended Complaint.
3. With "8" plaintiffs'
respect to the allegations contained in paragraph of Amended
Complaint, admits that Honeywell Inc. was and still is a duly organized corporation doing
business in the State of New York, but denies each and other allegation contained therein.
every
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4. With respect to the allegations set forth in paragraphs "19", "39", "45", "55",
"66" "85" plaintiffs'
and of Amended Honeywell Inc. repeats and
Complaint, realleges its
answers with the same force and effect as if more stated herein at length.
fully
5. Denies each and plaintiffs'
every other allegation of Amended Complaint not
heretofore specifically admitted, denied or otherwise responded to
FIRST AFFIRMATIVE DEFENSE
6. Upon information and belief, this Court lacks personal jurisdiction over
Honeywell Inc.
SECOND AFFIRMATIVE DEFENSE
7. The action was not commenced within the time limited therefor and is barred by
the statute of limitations.
THIRD AFFIRMATIVE DEFENSE
plaintiffs'
8. This action is barred by laches in commencing this action.
FOURTH AFFIRMATIVE DEFENSE
9. Tim injmi&and daa1ages alleged 111 Llie A1ile1ided Coüiplaitit resulted from or
were proximately caused by the conduct of persons other than defendant Honeywell Inc. or by
superseding or intervening causes.
FIFTH AFFIRMATIVE DEFENSE
10. The injuries and damages alleged in the Amended Complaint were caused the
by
acts and/or omissions of persons or entities other than defendant Honeywell Inc., including
persons or entities over whom plaintiffs could have obtained personal jurisdiction. Therefore,
plaintiffs are not entitled to recover from Honeywell Inc. or Honeywell Inc. is entitled to the
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benefits of the applicable laws of contribution and comparative fault in accordance with CPLR
Article 14.
SIXTH AFFIRMATIVE DEFENSE
11. The injuries and damages alleged in the Amended Complaint were caused or
contributed to in whole or in part culpable conduct attributable to persons other
by than this
answering defendant, the relative culpability of which persons equals or exceeds percent of
fifty
the total culpability of all persons to such damage. on the of
contributing Any liability part
Honeywell Inc. (which liability is denied) is 50 percent or less of the of all persons
liability
causing or contributing to the alleged injuries, if any, and the of Honeywell Inc. for non-
liability
economic loss shall not exceed Honeywell Inc.'s equitable share determined in accordance with
the relative culpability of each person or to the total for non-
causing contributing liability
economic loss pursuant to CPLR §§1601 and 1603.
SEVENTH AFFIRMATIVE DEFENSE
12. Insofar as the Amended Complaint alleges causes of action before
accruing
Septemberl, 1975, cach suclecaase of activir is lianed easua of the culpable conduct
by
attributable to plaintiff Wayne Van Amburgh, negligence and assumption
including contributory
of the risk.
EIGHTH AFFIRMATIVE DEFENSE
13. Insofar as the Amended Complaint alleges causes of action on or after
occurring
September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable
thereon must be diminished by reason of the culpable conduct attributable to plaintiff Wayne
Van Amburgh, including negligence and assumption of the in the proportion in
contributory risk,
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which the culpable conduct attributable to plaintiff Wayne Van Amburgh to the culpable conduct
which caused the damages.
NINTH AFFIRMATIVE DEFENSE
14. The Amended Complaint fails to state a claim upon which punitive damages can
be granted.
TENTH AFFIRMATIVE DEFENSE
15. The imposition of punitive damages on the facts alleged in the Amended
Complaint would violate the excessive fines and due process clauses of the Constitution of the
United States and of the State of New York.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs'
16. demand for punitive damages is barred the double clause
by jeopardy
of the Fifth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, Article 1, Section 6 of the New York State Constitution.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiffs'
17. clain fo1 exeniplaiy or punitive damages is barred because such
damages are not recoverable or warranted in this action.
THIRTEENTH AFFIRMATIVE DEFENSE
18. Each item of economic loss alleged in the Amended Complaint or with
was,
reasonable certainty will be, replaced or indemnified in whole or in part from collateral sources.
FOURTEENTH AFFIRMATIVE DEFENSE
19. The Amended Complaint fails to state a cause of action upon which relief be
may
granted as against this answering defendant.
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FIFTEENTH AFFIRMATIVE DEFENSE
20. Whatever damages, if any, which plaintiff Wayne Van Amburgh sustained as
alleged in the Amended Complaint, if it was not caused in whole or in part or contributed to by
reason of his culpable conduct, was caused reason of culpable conduct on the part of
by others to
whom the plaintiffs have given a release, and, accordingly, this defendant is entitled
answering
to have the claim of the plaintiffs herein, if any, reduced in accordance with Section 15-108 of
the General Obligations Law.
SIXTEENTH AFFIRMATIVE DEFENSE
21. This answering defendant did not supervise or control of the work performed
any
by plaintiff Wayne Van Amburgh.
SEVENTEENTH AFFIRMATIVE DEFENSE
22. It is denied that plaintiff Wayne Van Amburgh was ever exposed to a product sold
or manufactured by this answering defendant which contained asbestos. should
However,
plaintiffs submit evidence to the contrary, then this defendant alleges that asbestos
answering any
fibers in such pÎduct were entirely eucapsulated. Therefute, such pmducts did 1ï01 onlit
respirable asbestos fibers into the air, and, such exposure could not have contributed to the
injuries of plaintiff Wayne Van Amburgh.
EIGHTEENTH AFFIRMATIVE DEFENSE
23. If it should be proven at the time of trial that of this defendant's
any answering
products were furnished to eniployers of plaintiff Wayne Van Amburgh and that he came into
contact with these products, which is specifically denied, that such products were
any misused,
modified and altered by plaintiff Wayne Van Amburgh, his co-workers and/or his employers.
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NINETEENTH AFFIRMATIVE DEFENSE
24. If it should be proven at the time of trial that of this defendant's
any answering
products were furnished to employers of plaintiff Wayne Van Amburgh and that he came into
contact with these products, which is specifically denied, that such product was furnished in
any
strict conformity to the conditions specified or furnished plaintiff Wayne Van Amburgh and
by
his employers, who were sophisticated users of the product.
TWENTIETH AFFIRMATIVE DEFENSE
25. If it should be proven at the time of trial that of this defendant's
any answering
products were furnished to plaintiff Wayne Van Amburgh or his employers and that he came into
contact with these products, which is denied, that such products were
specifically any
accompanied by adequate warnings in with the state of the art in regard to
conformity existing
the foreseeable use of said products or materials.
TWENY-FIRST AFFIRMATIVE DEFENSE
26. If plaintiff Wayne Van Amburgh used any products distributed this
by answering
defendant, it is allceed that aäid producttwcrc p10duced pursudui Lu goveDmïenLspeeilleeilons
and as such, this answering defendant is relieved of any for the damages which
responsibility
plaintiffs claim.
TWENTY-SECOND AFFIRMATIVE DEFENSE
27. Any oral warranties upon which plaintiff Wayne Van Amburgh relied are barred
by the statute of frauds.
TWENTY-THIRD AFFIRMATIVE DEFENSE
28. Plaintiffs failed to give timely notice to this defendant of breach of
answering any
warranty claim.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
29. This answering defendant never made warranties to plaintiff Wayne Van
any
Amburgh upon which he relied.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
30. Any alleged warranties were disclaimed notice and warnings.
properly by labels,
TWENTY-SIXTH AFFIRMATIVE DEFENSE
31. Plaintiffs failed to assert claim under UCC Section and
timely any 2-725,
accordingly, any such claim is now barred.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
32. Upon information and belief, plaintiff Wayne Van Amburgh contributed to his
illness by use of drugs, medication and/or tobacco products.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
33. Plaintiffs have failed to state a claim against defendant Honeywell Inc. for breach
of warranty in that the Amended Complaint fails to allege that there was between
privity
Honeywell Inc. and plaintiff Wayne Van Amburgh did not exist.
TWENTY-NINTH AFFIRMATIVE DEFENSE
34. Plaintiff Wayne Van Amburgh's employer or employers, said
including
employers'
agents, servants, and employees, by reason of the warnings and information
handling
given to them and their own longstanding and continuous experience with the products or
materials, if any, referred to in the Amended Complaint, are and were sophisticated users of any
and all such products or materials, and acquired a separate and affirmative to warn
thereby duty
their employees, including plaintiff Wayne Van Amburgh, of alleged potential harmful
any
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effects from the use or misuse of said products or materials. reason of the
By foregoing, said
employers'
failure to discharge said duty and caused and all damages
directly proximately any
and injuries, if any, complained of plaintiffs.
by
THIRTIETH AFFIRMATIVE DEFENSE
35. Products or materials supplied this if to plaintiff
by answering defendant, any,
Wayne Van Amburgh's employer or employers, or others were produced in with the
conformity
existing state of the arts, and the alleged hazards or dangers of said products or materials, if any,
were created by the conduct of plaintiff Wayne Van Amburgh's employer or and
employers,
others.
THIRTY-FIRST AFFIRMATIVE DEFENSE
36. At all times material hereto, the state of the medical and industrial art was such
that there was no generally accepted or recognized Imowledge of any unavoidable, unsafe,
inherently dangerous or hazardous character or nature of products asbestos when used
containing
in the manner and purpose described plaintiff Wayne Van Amburgh. there was no
by Therefore,
d±ty for thirans diñg defendant to Imew ofEaclf clialauter u1 IratuIt 01 alii plaiiitiff Wa^ile
Van Amburgh or others similarly situated.
THIRTY-SECOND AFFIRMATIVE DEFENSE
37. To the extent that plaintiffs rely on the New York Law L. Chapter
1986, 682,
Section 4 as grounds for reviving or the action, said is
maintaining statute(s) unconstitutional,
deprives this answering defendant of its constitutional rights, and is void and
Preview
FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER WAYNE VAN AMBURGH and JUDITH VAN AMBURGH, Plaintiffs, VERIFIED ANSWER TO AMENDED -against- COMPLAINT AMCHEM PRODUCTS, INC., Index No. EF2023-275073 n/lda RHONE POULENC AG COMPANY, n/1da BAYER CROPSCIENCE INC., et al., Defendants. Defendant Honeywell Inc. / Honeywell International Inc. (hereinafter "Honeywell Inc."), its plaintiffs' by attorneys, Harris Beach PLLC, for its Answer to Amended states Complaint, upon information and belief as follows: 1. Denies the allegations contained in paragraphs "2", "3", "20", "21", "22", "23", "24", "25", "26", "27", "28", "29", "30", "31", "33", "34", "35", "36", "37", "38", "40", "41", "T3" " 1" 42", "16", "17", "18", "19", "50", "51", "52", "53", "54", "56"; "57"; "5G", "59", "60", "61", "62", "63", "64", "65", "67", "68", "69", "70", "71", "72", "73", "74", "75", "76", "84" "87" plaintiffs' "77", "78", "79", "80", "81", "82", "83", and of Amended Complaint. 2. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs "1", "4", "5", "6", "7", "9", "10", "11", "12", "18" "86" plaintiffs' "13", "14", "15", "16", "17", and of Amended Complaint. 3. With "8" plaintiffs' respect to the allegations contained in paragraph of Amended Complaint, admits that Honeywell Inc. was and still is a duly organized corporation doing business in the State of New York, but denies each and other allegation contained therein. every 1 1 of 12 FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023 4. With respect to the allegations set forth in paragraphs "19", "39", "45", "55", "66" "85" plaintiffs' and of Amended Honeywell Inc. repeats and Complaint, realleges its answers with the same force and effect as if more stated herein at length. fully 5. Denies each and plaintiffs' every other allegation of Amended Complaint not heretofore specifically admitted, denied or otherwise responded to FIRST AFFIRMATIVE DEFENSE 6. Upon information and belief, this Court lacks personal jurisdiction over Honeywell Inc. SECOND AFFIRMATIVE DEFENSE 7. The action was not commenced within the time limited therefor and is barred by the statute of limitations. THIRD AFFIRMATIVE DEFENSE plaintiffs' 8. This action is barred by laches in commencing this action. FOURTH AFFIRMATIVE DEFENSE 9. Tim injmi&and daa1ages alleged 111 Llie A1ile1ided Coüiplaitit resulted from or were proximately caused by the conduct of persons other than defendant Honeywell Inc. or by superseding or intervening causes. FIFTH AFFIRMATIVE DEFENSE 10. The injuries and damages alleged in the Amended Complaint were caused the by acts and/or omissions of persons or entities other than defendant Honeywell Inc., including persons or entities over whom plaintiffs could have obtained personal jurisdiction. Therefore, plaintiffs are not entitled to recover from Honeywell Inc. or Honeywell Inc. is entitled to the 2 2 of 12 FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023 benefits of the applicable laws of contribution and comparative fault in accordance with CPLR Article 14. SIXTH AFFIRMATIVE DEFENSE 11. The injuries and damages alleged in the Amended Complaint were caused or contributed to in whole or in part culpable conduct attributable to persons other by than this answering defendant, the relative culpability of which persons equals or exceeds percent of fifty the total culpability of all persons to such damage. on the of contributing Any liability part Honeywell Inc. (which liability is denied) is 50 percent or less of the of all persons liability causing or contributing to the alleged injuries, if any, and the of Honeywell Inc. for non- liability economic loss shall not exceed Honeywell Inc.'s equitable share determined in accordance with the relative culpability of each person or to the total for non- causing contributing liability economic loss pursuant to CPLR §§1601 and 1603. SEVENTH AFFIRMATIVE DEFENSE 12. Insofar as the Amended Complaint alleges causes of action before accruing Septemberl, 1975, cach suclecaase of activir is lianed easua of the culpable conduct by attributable to plaintiff Wayne Van Amburgh, negligence and assumption including contributory of the risk. EIGHTH AFFIRMATIVE DEFENSE 13. Insofar as the Amended Complaint alleges causes of action on or after occurring September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to plaintiff Wayne Van Amburgh, including negligence and assumption of the in the proportion in contributory risk, 3 3 of 12 FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023 which the culpable conduct attributable to plaintiff Wayne Van Amburgh to the culpable conduct which caused the damages. NINTH AFFIRMATIVE DEFENSE 14. The Amended Complaint fails to state a claim upon which punitive damages can be granted. TENTH AFFIRMATIVE DEFENSE 15. The imposition of punitive damages on the facts alleged in the Amended Complaint would violate the excessive fines and due process clauses of the Constitution of the United States and of the State of New York. ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs' 16. demand for punitive damages is barred the double clause by jeopardy of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, Article 1, Section 6 of the New York State Constitution. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs' 17. clain fo1 exeniplaiy or punitive damages is barred because such damages are not recoverable or warranted in this action. THIRTEENTH AFFIRMATIVE DEFENSE 18. Each item of economic loss alleged in the Amended Complaint or with was, reasonable certainty will be, replaced or indemnified in whole or in part from collateral sources. FOURTEENTH AFFIRMATIVE DEFENSE 19. The Amended Complaint fails to state a cause of action upon which relief be may granted as against this answering defendant. 4 4 of 12 FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023 FIFTEENTH AFFIRMATIVE DEFENSE 20. Whatever damages, if any, which plaintiff Wayne Van Amburgh sustained as alleged in the Amended Complaint, if it was not caused in whole or in part or contributed to by reason of his culpable conduct, was caused reason of culpable conduct on the part of by others to whom the plaintiffs have given a release, and, accordingly, this defendant is entitled answering to have the claim of the plaintiffs herein, if any, reduced in accordance with Section 15-108 of the General Obligations Law. SIXTEENTH AFFIRMATIVE DEFENSE 21. This answering defendant did not supervise or control of the work performed any by plaintiff Wayne Van Amburgh. SEVENTEENTH AFFIRMATIVE DEFENSE 22. It is denied that plaintiff Wayne Van Amburgh was ever exposed to a product sold or manufactured by this answering defendant which contained asbestos. should However, plaintiffs submit evidence to the contrary, then this defendant alleges that asbestos answering any fibers in such pÎduct were entirely eucapsulated. Therefute, such pmducts did 1ï01 onlit respirable asbestos fibers into the air, and, such exposure could not have contributed to the injuries of plaintiff Wayne Van Amburgh. EIGHTEENTH AFFIRMATIVE DEFENSE 23. If it should be proven at the time of trial that of this defendant's any answering products were furnished to eniployers of plaintiff Wayne Van Amburgh and that he came into contact with these products, which is specifically denied, that such products were any misused, modified and altered by plaintiff Wayne Van Amburgh, his co-workers and/or his employers. 5 5 of 12 FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023 NINETEENTH AFFIRMATIVE DEFENSE 24. If it should be proven at the time of trial that of this defendant's any answering products were furnished to employers of plaintiff Wayne Van Amburgh and that he came into contact with these products, which is specifically denied, that such product was furnished in any strict conformity to the conditions specified or furnished plaintiff Wayne Van Amburgh and by his employers, who were sophisticated users of the product. TWENTIETH AFFIRMATIVE DEFENSE 25. If it should be proven at the time of trial that of this defendant's any answering products were furnished to plaintiff Wayne Van Amburgh or his employers and that he came into contact with these products, which is denied, that such products were specifically any accompanied by adequate warnings in with the state of the art in regard to conformity existing the foreseeable use of said products or materials. TWENY-FIRST AFFIRMATIVE DEFENSE 26. If plaintiff Wayne Van Amburgh used any products distributed this by answering defendant, it is allceed that aäid producttwcrc p10duced pursudui Lu goveDmïenLspeeilleeilons and as such, this answering defendant is relieved of any for the damages which responsibility plaintiffs claim. TWENTY-SECOND AFFIRMATIVE DEFENSE 27. Any oral warranties upon which plaintiff Wayne Van Amburgh relied are barred by the statute of frauds. TWENTY-THIRD AFFIRMATIVE DEFENSE 28. Plaintiffs failed to give timely notice to this defendant of breach of answering any warranty claim. 6 6 of 12 FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023 TWENTY-FOURTH AFFIRMATIVE DEFENSE 29. This answering defendant never made warranties to plaintiff Wayne Van any Amburgh upon which he relied. TWENTY-FIFTH AFFIRMATIVE DEFENSE 30. Any alleged warranties were disclaimed notice and warnings. properly by labels, TWENTY-SIXTH AFFIRMATIVE DEFENSE 31. Plaintiffs failed to assert claim under UCC Section and timely any 2-725, accordingly, any such claim is now barred. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 32. Upon information and belief, plaintiff Wayne Van Amburgh contributed to his illness by use of drugs, medication and/or tobacco products. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 33. Plaintiffs have failed to state a claim against defendant Honeywell Inc. for breach of warranty in that the Amended Complaint fails to allege that there was between privity Honeywell Inc. and plaintiff Wayne Van Amburgh did not exist. TWENTY-NINTH AFFIRMATIVE DEFENSE 34. Plaintiff Wayne Van Amburgh's employer or employers, said including employers' agents, servants, and employees, by reason of the warnings and information handling given to them and their own longstanding and continuous experience with the products or materials, if any, referred to in the Amended Complaint, are and were sophisticated users of any and all such products or materials, and acquired a separate and affirmative to warn thereby duty their employees, including plaintiff Wayne Van Amburgh, of alleged potential harmful any 7 7 of 12 FILED: RENSSELAER COUNTY CLERK 12/06/2023 10:55 AM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/06/2023 effects from the use or misuse of said products or materials. reason of the By foregoing, said employers' failure to discharge said duty and caused and all damages directly proximately any and injuries, if any, complained of plaintiffs. by THIRTIETH AFFIRMATIVE DEFENSE 35. Products or materials supplied this if to plaintiff by answering defendant, any, Wayne Van Amburgh's employer or employers, or others were produced in with the conformity existing state of the arts, and the alleged hazards or dangers of said products or materials, if any, were created by the conduct of plaintiff Wayne Van Amburgh's employer or and employers, others. THIRTY-FIRST AFFIRMATIVE DEFENSE 36. At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized Imowledge of any unavoidable, unsafe, inherently dangerous or hazardous character or nature of products asbestos when used containing in the manner and purpose described plaintiff Wayne Van Amburgh. there was no by Therefore, d±ty for thirans diñg defendant to Imew ofEaclf clialauter u1 IratuIt 01 alii plaiiitiff Wa^ile Van Amburgh or others similarly situated. THIRTY-SECOND AFFIRMATIVE DEFENSE 37. To the extent that plaintiffs rely on the New York Law L. Chapter 1986, 682, Section 4 as grounds for reviving or the action, said is maintaining statute(s) unconstitutional, deprives this answering defendant of its constitutional rights, and is void and