Preview
FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
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WAYNE VAN AMBURGH and JUDITH VAN
AMBURGH, his spouse, Index No. EF2023-275073
Plaintiffs,
vs.
VERIFIED ANSWER
AMCHEM PRODUCTS, INC.,
n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER
CROPSCIENCE INC., et al.,
Defendants.
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DEFENDANT CARRIER CORPORATION’S VERIFIED ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFFS’ VERIFIED COMPLAINT
Defendant Carrier Corporation (hereinafter referred to as “Carrier” or “Defendant”), as
their Verified Answer to Plaintiffs’ Verified Complaint (hereinafter referred to as the “Complaint”)
and Affirmative Defenses, states as follows:
1–2. Carrier is without knowledge or information to form a belief as to the truth of the
allegations set forth in Paragraphs 1 and 2; and therefore, Carrier makes no answer thereto.
3. To the extent that Paragraph 3 contains allegations against Carrier, Carrier denies
the allegations set forth in Paragraph 3. Further, any allegation that Carrier has conducted and/or
transacted business in the State of New York is a question of law to be adjudicated by this Court;
and therefore, Carrier makes no answer thereto. To the extent that Paragraph 3 contains allegations
against entities other than Carrier, Carrier is without knowledge or information sufficient to form
a belief as to the truth of the allegations set forth against those entities.
4. Paragraph 4 make no allegation against Carrier; and therefore, Carrier makes no
answer thereto.
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5. To the extent that Paragraph 5 contains allegations against Carrier, Carrier denies
the allegations set forth in Paragraph 5. Answering further, any allegation that Carrier has
conducted and/or transacted business in the New York is a question of law to be adjudicated by
this Court; and therefore, Carrier makes no answer thereto. To the extent that Paragraph 5 contains
allegations against entities other than Carrier, Carrier is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
6–20. Paragraphs 6 through 20 make no allegation against Carrier and therefore Carrier
makes no answer thereto.
AS AND FOR A FIRST CAUSE OF ACTION
21. Carrier repeats each and every answer contained in Paragraphs 1 through 20 of
this Answer herein with the same force and effect is as if fully set forth herein.
22–38. To the extent that Paragraphs 22 through 38 contain allegations against Carrier,
Carrier denies the allegations set forth in Paragraphs 22 through 38. To the extent that Paragraphs
22 through 38 contain allegations against entities other than Carrier, Carrier is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
39. The allegations in Paragraph 39 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 39 contains allegations against Carrier, Carrier denies the
allegations set forth in Paragraph 39. To the extent that Paragraph 39 contains allegations against
entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
40. To the extent that Paragraph 40 contains allegations against Carrier, Carrier
denies the allegations set forth in Paragraph 40. Answering further, to the extent that Paragraph 40
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contains allegations against entities other than Carrier, Carrier is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A SECOND CAUSE OF ACTION
41. Carrier repeats each and every answer contained in Paragraphs 1 through 40 of
this Answer herein with the same force and effect is as if fully set forth herein.
42–44. To the extent that Paragraphs 42 through 44 contain allegations against Carrier,
Carrier denies the allegations set forth in Paragraphs 42 through 44. To the extent that Paragraphs
42 through 44 contain allegations against entities other than Carrier, Carrier is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
45. The allegations in Paragraph 45 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 45 contains allegations against Carrier, Carrier denies the
allegations set forth in Paragraph 45. To the extent that Paragraph 45 contains allegations against
entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
46. To the extent that Paragraph 46 contains allegations against Carrier, Carrier
denies the allegations set forth in Paragraph 46. To the extent that Paragraph 46 contains
allegations against any entities other than Carrier, Carrier is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A THIRD CAUSE OF ACTION
47. Carrier repeats each and every answer contained in Paragraphs 1 through 46 of
this Answer herein with the same force and effect is as if fully set forth herein.
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48–54. To the extent that Paragraphs 48 through 54 contain allegations against Carrier,
Carrier denies the allegations set forth in Paragraphs 48 through 54. To the extent that Paragraphs
48 through 54 contain allegations against entities other than Carrier, Carrier is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
55. The allegations in Paragraph 55 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 55 contains allegations against Carrier, Carrier denies the
allegations set forth in Paragraph 55. To the extent that Paragraph 55 contains allegations against
entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
56. To the extent that Paragraph 56 contains allegations against Carrier, Carrier
denies the allegations set forth in Paragraph 56. To the extent that Paragraph 56 contains
allegations against entities other than Carrier, Carrier is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A FOURTH CAUSE OF ACTION
57. Carrier repeats each and every answer contained in Paragraphs 1 through 56 of
this Answer herein with the same force and effect is as if fully set forth herein.
58. To the extent that the allegations set forth in Paragraph 58 are directed against
Carrier, Carrier denies the allegations set forth in Paragraph 58. To the extent that the allegations
set forth in Paragraph 58 are directed against entities other than Carrier, Carrier is without
knowledge or information sufficient to form a belief as to the truth of the allegations set forth
against those entities.
59. Carrier denies the allegations in Paragraph 59.
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60–63. To the extent that Paragraphs 60 through 63 contain allegations against Carrier,
Carrier denies the allegations set forth in Paragraphs 60 through 63. To the extent that Paragraphs
60 through 63 contain allegations against entities other than Carrier, Carrier is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
64. To the extent that Paragraph 64 contains allegations against Carrier, Carrier denies
the allegations set forth in Paragraph 64. To the extent that Paragraph 64 contains allegations
against entities other than Carrier, Carrier is without knowledge or information sufficient to form
a belief as to the truth of the allegations set forth against those entities. Further, the application of
the New York Civil Practice Law and Rules (“CPLR”) is a question of law to be determined by
this Court.
65. To the extent that Paragraph 65 contains allegations against Carrier, Carrier
denies the allegations set forth in Paragraph 65. To the extent that Paragraph 65 contains
allegations against entities other than Carrier, Carrier is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
66. The allegations in Paragraph 66 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 66 contains allegations against Carrier, Carrier denies the
allegations set forth in Paragraph 66. To the extent that Paragraph 66 contains allegations against
entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
67. To the extent that Paragraph 67 contains allegations against Carrier, Carrier
denies the allegations set forth in Paragraph 67. To the extent that Paragraph 67 contains
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allegations against entities other than Carrier, Carrier is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A FIFTH CAUSE OF ACTION
68. Carrier repeats each and every answer contained in Paragraphs 1 through 67 of
this Answer herein with the same force and effect is as if fully set forth herein.
69–77. To the extent that Paragraphs 69 through 77 contain allegations against Carrier,
Carrier denies the allegations set forth in Paragraphs 69 through 77. To the extent that Paragraphs
69 through 77 contain allegations against entities other than Carrier, Carrier is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
78. To the extent that Paragraph 78 contains allegations against Carrier, Carrier denies
the allegations set forth in Paragraph 78. To the extent that Paragraph 78 contains allegations
against entities other than Carrier, Carrier is without knowledge or information sufficient to form
a belief as to the truth of the allegations set forth against those entities. Answering further, the
applications of the New York Labor Law and the New York Industrial Code are questions of law
to be determined by this Court.
79–84. To the extent that Paragraphs 79 through 84 contain allegations against Carrier,
Carrier denies the allegations set forth in Paragraphs 79 through 84. To the extent that Paragraphs
79 through 84 contain allegations against entities other than Carrier, Carrier is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
85. The allegations in Paragraph 85 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 85 contains allegations against Carrier, Carrier denies the
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allegations set forth in Paragraph 85. To the extent that Paragraph 85 contains allegations against
entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
86. To the extent that Paragraph 86 contains allegations against Carrier, Carrier
denies the allegations set forth in Paragraph 86. To the extent that Paragraph 86 contains
allegations against entities other than Carrier, Carrier is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A SIXTH CAUSE OF ACTION
87. Carrier repeats each and every answer contained in Paragraphs 1 through 86 of this
Answer herein with the same force and effect is as if fully set forth herein.
88. Carrier is without sufficient information or knowledge to form a belief as to the
truth of the allegations in Paragraph 88.
89. The allegations in Paragraph 89 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 89 contains allegations against Carrier, Carrier denies the
allegations set forth in Paragraph 89. To the extent that Paragraph 89 contains allegations against
entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
WHEREFORE, Defendant Carrier Corporation denies liability to the Plaintiffs in any
matter or sum whatsoever. Defendant Carrier Corporation denies that Plaintiffs are entitled to
compensatory and punitive damages and further requests that Plaintiffs’ claims be dismissed with
prejudice and any other relief this Honorable Court deems just.
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AFFIRMATIVE DEFENSES
First Defense
Plaintiffs’ Complaint fails to state a claim upon which relief may be granted.
Second Defense
Plaintiffs’ Complaint is barred by the applicable statute of repose or statute of limitations.
Third Defense
Any claim or cause of action Plaintiffs may have is barred, in whole or in part, by the
doctrines of laches, waiver, collateral estoppel, and/or res judicata.
Fourth Defense
Plaintiffs failed to plead the claims of fraud and conspiracy with proper specificity and, as
such, all claims premised on fraud and/or conspiracy must be dismissed.
Fifth Defense
The injuries and/or illnesses to Plaintiffs, if any, are governed by the applicable Workers’
Compensation statutes and shall have constituted an industrial disability and Plaintiffs’ exclusive
remedy, if any, shall lie within the terms and ambit of said statute.
Sixth Defense
Plaintiffs’ claims and causes of action against Defendant are barred, in whole or in part,
because Defendant owed no legal duty to Plaintiffs or, if it owed such a legal duty, it did not breach
such duty.
Seventh Defense
The injuries allegedly sustained by Plaintiffs, if any, were proximately caused by Plaintiffs’
free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and
thus assuming the risks ordinary incident to such acts.
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Eighth Defense
The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of the
risks, hazards, and dangers incident to the occupation of Plaintiff, all of which were open, obvious
and well known to Plaintiff, and the action is barred by Plaintiffs’ assumption of the risks thereof.
Ninth Defense
This action is barred, in whole or in part, by the misuse, abuse, or substantial modification
of the product.
Tenth Defense
The negligent acts or omissions of Plaintiffs were the sole proximate cause or proximate
contributing cause of the injuries and damages of which Plaintiffs complains.
Eleventh Defense
Plaintiff contributed to his illness, either in whole or in part, by the use of other substances,
products, medications and drugs. To the extent that Plaintiff used any tobacco products, any
damages awarded should be reduced in whole or in part by the amount of his damages caused by
smoking.
Twelfth Defense
That the injuries and/or illnesses, if any, sustained by Plaintiffs were caused or contributed
to by the fault, neglect, and want of care on the part of Plaintiffs or of others for whose acts or
omissions or breach of legal duty Defendant is not liable.
Thirteenth Defense
Plaintiffs’ alleged damages were negligently caused in whole or in part by persons, firms,
corporations, or entities other than those parties before this Court and such negligence either bars
or comparatively reduces any possible recovery by Plaintiffs.
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Fourteenth Defense
Insofar as the Complaint alleges a cause of action accruing on or after September 1, 1975
to recover damages for personal injuries, the amount of damages recoverable thereon must be
diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory
negligence and assumption of risk, in the proportion which the culpable conduct attributable to
Plaintiffs bear to the culpable conduct which caused the damages.
Fifteenth Defense
If Plaintiffs suffered damages as a result of the allegations set forth in the Complaint, then
those damages were the result of intervening or superseding acts or omissions of persons other
than the Defendant.
Sixteenth Defense
If Plaintiffs suffered injuries as a proximate result of a condition of Defendant’s products,
any of Defendant’s products would have been supplied to an employer of Plaintiffs. Such
employer was a knowledgeable and sophisticated user of said products, and thus Defendant had
no further legal duty to warn or instruct Plaintiffs.
Seventeenth Defense
If any of the allegations of Plaintiffs with respect to the defective condition of asbestos or
asbestos products are proven, then Plaintiffs are barred from any recovery due to the fact that at
all relevant times there was no known substitute for asbestos or asbestos products.
Eighteenth Defense
The state of the medical and scientific knowledge at all relevant times was such that
Defendant neither knew nor could have known that its asbestos-containing products presented a
foreseeable risk of harm to any person in the normal and expected use of those products.
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Nineteenth Defense
To the extent that Defendant conformed to the scientific knowledge and research data
available throughout the industry and scientific community, Defendant shall have fulfilled its
obligations, if any, herein, and Plaintiffs’ claims shall be barred, in whole or in part.
Twentieth Defense
If Plaintiffs sustained injuries as a result of exposure to any product manufactured by
Defendant, the degree of such damage attributable to Defendant’s product is negligible, and hence,
de minimis.
Twenty-First Defense
Defendant cannot be held jointly and severally liable for acts or omissions of other
defendants because the acts and omissions of those other defendants were separate and distinct
and the alleged harm caused by each defendant is divisible.
Twenty-Second Defense
Defendant is not liable for any damages alleged to have resulted from exposure to any of
its products which were manufactured pursuant to Government specifications.
Twenty-Third Defense
Insofar as Plaintiffs rely upon allegations of negligence, breaches of warranties, fraudulent
representations, and violations of obligations of strict product liability as against Defendant prior
to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of
action by reason of the failure to allege the freedom of Plaintiffs from contributory negligence or
fault; and that if Plaintiffs sustained the injuries, losses, and other damages complained of in the
Complaint, they were caused and brought about, in whole or in part, by the negligence,
carelessness, assumption of risk, fault or other culpable conduct of Plaintiffs.
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Twenty-Fourth Defense
To the extent that Plaintiffs allege rights assertedly derived from oral warranties or
undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds.
Twenty-Fifth Defense
To the extent Plaintiffs allege a cause of action for express and/or implied warranties and
the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to
allege privity of contract and/or privity of warranties between Plaintiffs and Defendant.
Twenty-Sixth Defense
To the extent that any breach of warranty is alleged, Plaintiffs failed to give proper and
prompt notice of any such breach to Defendant.
Twenty-Seventh Defense
Plaintiffs did not directly or indirectly purchase any asbestos-containing products or
materials from Defendant, and Plaintiffs neither received nor relied upon any representation or
warranty allegedly made by Defendant.
Twenty-Eighth Defense
The action cannot proceed in the absence of all parties who should be named in accordance
with CPLR § 1001.
Twenty-Ninth Defense
The recoverable damages, if any, should be diminished under the collateral source rule set
forth in CPLR § 4545.
Thirtieth Defense
To the extent that Plaintiffs may recover damages from Defendant, Defendant is entitled
to indemnification and/or contribution, in whole or part, from each other defendants in this action.
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Thirty-First Defense
If Defendant is ultimately found to be liable to Plaintiffs, then, pursuant to CPLR Article
16, it shall only be liable for its equitable share of Plaintiffs’ recovery since any liability which
will be found against it will be insufficient to impose joint liability.
Thirty-Second Defense
Pursuant to CPLR Article 16, the liability, if any, of Defendant for non-economic loss shall
not exceed its equitable share of liability.
Thirty-Third Defense
To the extent Plaintiffs seek to hold Defendant liable retroactively for conduct that was not
actionable at the time it occurred, Plaintiffs’ claims violate Defendant’s right to be free from ex
post facto laws and Defendant’s procedural and substantive due process rights under the
Constitution of the United States.
Thirty-Fourth Defense
Any claim for exemplary and/or punitive damages is barred because such damages are not
recoverable or warranted in this action.
Thirty-Fifth Defense
The imposition of punitive damages on the facts alleged in the Complaint is barred by the
United States Constitution and the Constitution of the State of New York.
Thirty-Sixth Defense
Plaintiffs’ claims are barred because this Court lacks personal jurisdiction over Defendant.
Thirty-Seventh Defense
Plaintiffs’ claims are barred due to improper service of the Summons and Complaint on
Defendant.
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Thirty-Eighth Defense
Plaintiffs’ claim for punitive damages cannot be sustained because it would violate
Defendant’s rights under the Constitutions of the United States and the State of New York,
including, but not limited to:
(a) Defendant’s procedural and substantive due process rights and equal protection
rights under the Fifth and Fourteenth Amendments of the Constitution of the
United States and under cognate provisions of the Constitution of the State of
New York;
(b) Defendant’s rights under the double jeopardy clauses of the Fifth Amendment of
the United States Constitution and Article I, Section 6 of the New York State
Constitution;
(c) Defendant’s rights to protection from “excessive fines” as provided in the
Constitutions of the United States and the State of New York.
Thirty-Ninth Defense
The law of New York and the Due Process Clause of the Fourteenth Amendment and the
Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant
simply for lawfully selling a legal product.
Fortieth Defense
Punitive damages are inappropriate to serve deterrence and punishment objectives because
those will be fully served by past and future liability for the same conduct at issue in this case.
Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish
Defendant, except to the extent the alleged conduct has had an impact in this State.
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Forty-First Defense
All defenses which have been or will be asserted by other defendants and/or third-party
defendants in this action are adopted and incorporated herein by reference as if fully set forth at
length as defenses to Plaintiffs’ Complaint. In addition, Defendant will rely upon any and all other
further defenses which become available or appear during discovery proceedings in this action and
hereby specifically reserves the right to amend its Answer for purposes of asserting further
additional defenses.
Dated: January 25, 2024 Respectfully submitted,
CARRIER CORPORATION
By:
Beth L. Hughes
One of the Attorneys for Carrier Corporation
Beth L. Hughes, Esq.
Patrick K.A. Elkins, Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178-0060
Phone: (212) 309-6000
Fax: (212) 309-6001
beth.hughes@morganlewis.com
To: Weitz & Luxenberg P.C.
700 Broadway
New York, NY 10003
Attorneys for Plaintiffs
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
BETH L. HUGHES, an attorney duly admitted to practice law before the Courts of the
State of New York, deposes and says that I am an attorney for Carrier Corporation, with an office
located at 101 Park Avenue, New York, New York, that I have read the foregoing Answer and
Affirmative Defenses to Plaintiffs’ Complaint on Behalf of Defendant Carrier Corporation, and
know the contents thereof, that the same is true upon information and belief and I believe it to be
true, that the grounds of my belief are public records, records and documents currently in my
possession pertaining to this matter, and conversations with client’s agents, and that the reason
why this verification is made by me and not by said defendant is that said defendant is a foreign
corporation which has no offices located in New York County where I maintain an office.
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
Dated: January 25, 2024
New York, New York
Beth L. Hughes
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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, his spouse, Index No. EF2023-275073
Plaintiffs,
vs.
AFFIRMATION OF SERVICE
AMCHEM PRODUCTS, INC.,
n/k/a RHONE POULENC AG COMPANY, n/k/a
BAYER CROPSCIENCE INC., et al.,
Defendants.
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
BETH HUGHES, an attorney of the State of New York, hereby certifies as follows:
1. I am an attorney at the law firm of Morgan, Lewis & Bockius, attorneys for
Defendant Carrier Corporation, in the above-captioned matter.
2. On this day, I caused to be served via electronic mail, the attached Answer to
Plaintiffs’ Complaint and Affirmative Defenses of Defendant Carrier Corporation, and Attorney
Verification on:
Weitz & Luxenberg P.C.
700 Broadway
New York, NY 10003
Dated: January 25, 2024
New York, New York
Beth L. Hughes
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FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER --------------------------------------------------------------------x WAYNE VAN AMBURGH and JUDITH VAN AMBURGH, his spouse, Index No. EF2023-275073 Plaintiffs, vs. VERIFIED ANSWER AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., et al., Defendants. --------------------------------------------------------------------x DEFENDANT CARRIER CORPORATION’S VERIFIED ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ VERIFIED COMPLAINT Defendant Carrier Corporation (hereinafter referred to as “Carrier” or “Defendant”), as their Verified Answer to Plaintiffs’ Verified Complaint (hereinafter referred to as the “Complaint”) and Affirmative Defenses, states as follows: 1–2. Carrier is without knowledge or information to form a belief as to the truth of the allegations set forth in Paragraphs 1 and 2; and therefore, Carrier makes no answer thereto. 3. To the extent that Paragraph 3 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 3. Further, any allegation that Carrier has conducted and/or transacted business in the State of New York is a question of law to be adjudicated by this Court; and therefore, Carrier makes no answer thereto. To the extent that Paragraph 3 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 4. Paragraph 4 make no allegation against Carrier; and therefore, Carrier makes no answer thereto. 1 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 5. To the extent that Paragraph 5 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 5. Answering further, any allegation that Carrier has conducted and/or transacted business in the New York is a question of law to be adjudicated by this Court; and therefore, Carrier makes no answer thereto. To the extent that Paragraph 5 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 6–20. Paragraphs 6 through 20 make no allegation against Carrier and therefore Carrier makes no answer thereto. AS AND FOR A FIRST CAUSE OF ACTION 21. Carrier repeats each and every answer contained in Paragraphs 1 through 20 of this Answer herein with the same force and effect is as if fully set forth herein. 22–38. To the extent that Paragraphs 22 through 38 contain allegations against Carrier, Carrier denies the allegations set forth in Paragraphs 22 through 38. To the extent that Paragraphs 22 through 38 contain allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 39. The allegations in Paragraph 39 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 39 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 39. To the extent that Paragraph 39 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 40. To the extent that Paragraph 40 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 40. Answering further, to the extent that Paragraph 40 -2- 2 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A SECOND CAUSE OF ACTION 41. Carrier repeats each and every answer contained in Paragraphs 1 through 40 of this Answer herein with the same force and effect is as if fully set forth herein. 42–44. To the extent that Paragraphs 42 through 44 contain allegations against Carrier, Carrier denies the allegations set forth in Paragraphs 42 through 44. To the extent that Paragraphs 42 through 44 contain allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 45. The allegations in Paragraph 45 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 45 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 45. To the extent that Paragraph 45 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 46. To the extent that Paragraph 46 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 46. To the extent that Paragraph 46 contains allegations against any entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A THIRD CAUSE OF ACTION 47. Carrier repeats each and every answer contained in Paragraphs 1 through 46 of this Answer herein with the same force and effect is as if fully set forth herein. -3- 3 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 48–54. To the extent that Paragraphs 48 through 54 contain allegations against Carrier, Carrier denies the allegations set forth in Paragraphs 48 through 54. To the extent that Paragraphs 48 through 54 contain allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 55. The allegations in Paragraph 55 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 55 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 55. To the extent that Paragraph 55 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 56. To the extent that Paragraph 56 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 56. To the extent that Paragraph 56 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FOURTH CAUSE OF ACTION 57. Carrier repeats each and every answer contained in Paragraphs 1 through 56 of this Answer herein with the same force and effect is as if fully set forth herein. 58. To the extent that the allegations set forth in Paragraph 58 are directed against Carrier, Carrier denies the allegations set forth in Paragraph 58. To the extent that the allegations set forth in Paragraph 58 are directed against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 59. Carrier denies the allegations in Paragraph 59. -4- 4 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 60–63. To the extent that Paragraphs 60 through 63 contain allegations against Carrier, Carrier denies the allegations set forth in Paragraphs 60 through 63. To the extent that Paragraphs 60 through 63 contain allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 64. To the extent that Paragraph 64 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 64. To the extent that Paragraph 64 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. Further, the application of the New York Civil Practice Law and Rules (“CPLR”) is a question of law to be determined by this Court. 65. To the extent that Paragraph 65 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 65. To the extent that Paragraph 65 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 66. The allegations in Paragraph 66 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 66 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 66. To the extent that Paragraph 66 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 67. To the extent that Paragraph 67 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 67. To the extent that Paragraph 67 contains -5- 5 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FIFTH CAUSE OF ACTION 68. Carrier repeats each and every answer contained in Paragraphs 1 through 67 of this Answer herein with the same force and effect is as if fully set forth herein. 69–77. To the extent that Paragraphs 69 through 77 contain allegations against Carrier, Carrier denies the allegations set forth in Paragraphs 69 through 77. To the extent that Paragraphs 69 through 77 contain allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 78. To the extent that Paragraph 78 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 78. To the extent that Paragraph 78 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. Answering further, the applications of the New York Labor Law and the New York Industrial Code are questions of law to be determined by this Court. 79–84. To the extent that Paragraphs 79 through 84 contain allegations against Carrier, Carrier denies the allegations set forth in Paragraphs 79 through 84. To the extent that Paragraphs 79 through 84 contain allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 85. The allegations in Paragraph 85 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 85 contains allegations against Carrier, Carrier denies the -6- 6 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 allegations set forth in Paragraph 85. To the extent that Paragraph 85 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 86. To the extent that Paragraph 86 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 86. To the extent that Paragraph 86 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A SIXTH CAUSE OF ACTION 87. Carrier repeats each and every answer contained in Paragraphs 1 through 86 of this Answer herein with the same force and effect is as if fully set forth herein. 88. Carrier is without sufficient information or knowledge to form a belief as to the truth of the allegations in Paragraph 88. 89. The allegations in Paragraph 89 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 89 contains allegations against Carrier, Carrier denies the allegations set forth in Paragraph 89. To the extent that Paragraph 89 contains allegations against entities other than Carrier, Carrier is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. WHEREFORE, Defendant Carrier Corporation denies liability to the Plaintiffs in any matter or sum whatsoever. Defendant Carrier Corporation denies that Plaintiffs are entitled to compensatory and punitive damages and further requests that Plaintiffs’ claims be dismissed with prejudice and any other relief this Honorable Court deems just. -7- 7 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 AFFIRMATIVE DEFENSES First Defense Plaintiffs’ Complaint fails to state a claim upon which relief may be granted. Second Defense Plaintiffs’ Complaint is barred by the applicable statute of repose or statute of limitations. Third Defense Any claim or cause of action Plaintiffs may have is barred, in whole or in part, by the doctrines of laches, waiver, collateral estoppel, and/or res judicata. Fourth Defense Plaintiffs failed to plead the claims of fraud and conspiracy with proper specificity and, as such, all claims premised on fraud and/or conspiracy must be dismissed. Fifth Defense The injuries and/or illnesses to Plaintiffs, if any, are governed by the applicable Workers’ Compensation statutes and shall have constituted an industrial disability and Plaintiffs’ exclusive remedy, if any, shall lie within the terms and ambit of said statute. Sixth Defense Plaintiffs’ claims and causes of action against Defendant are barred, in whole or in part, because Defendant owed no legal duty to Plaintiffs or, if it owed such a legal duty, it did not breach such duty. Seventh Defense The injuries allegedly sustained by Plaintiffs, if any, were proximately caused by Plaintiffs’ free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and thus assuming the risks ordinary incident to such acts. -8- 8 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 Eighth Defense The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of the risks, hazards, and dangers incident to the occupation of Plaintiff, all of which were open, obvious and well known to Plaintiff, and the action is barred by Plaintiffs’ assumption of the risks thereof. Ninth Defense This action is barred, in whole or in part, by the misuse, abuse, or substantial modification of the product. Tenth Defense The negligent acts or omissions of Plaintiffs were the sole proximate cause or proximate contributing cause of the injuries and damages of which Plaintiffs complains. Eleventh Defense Plaintiff contributed to his illness, either in whole or in part, by the use of other substances, products, medications and drugs. To the extent that Plaintiff used any tobacco products, any damages awarded should be reduced in whole or in part by the amount of his damages caused by smoking. Twelfth Defense That the injuries and/or illnesses, if any, sustained by Plaintiffs were caused or contributed to by the fault, neglect, and want of care on the part of Plaintiffs or of others for whose acts or omissions or breach of legal duty Defendant is not liable. Thirteenth Defense Plaintiffs’ alleged damages were negligently caused in whole or in part by persons, firms, corporations, or entities other than those parties before this Court and such negligence either bars or comparatively reduces any possible recovery by Plaintiffs. -9- 9 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 Fourteenth Defense Insofar as the Complaint alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which caused the damages. Fifteenth Defense If Plaintiffs suffered damages as a result of the allegations set forth in the Complaint, then those damages were the result of intervening or superseding acts or omissions of persons other than the Defendant. Sixteenth Defense If Plaintiffs suffered injuries as a proximate result of a condition of Defendant’s products, any of Defendant’s products would have been supplied to an employer of Plaintiffs. Such employer was a knowledgeable and sophisticated user of said products, and thus Defendant had no further legal duty to warn or instruct Plaintiffs. Seventeenth Defense If any of the allegations of Plaintiffs with respect to the defective condition of asbestos or asbestos products are proven, then Plaintiffs are barred from any recovery due to the fact that at all relevant times there was no known substitute for asbestos or asbestos products. Eighteenth Defense The state of the medical and scientific knowledge at all relevant times was such that Defendant neither knew nor could have known that its asbestos-containing products presented a foreseeable risk of harm to any person in the normal and expected use of those products. -10- 10 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 Nineteenth Defense To the extent that Defendant conformed to the scientific knowledge and research data available throughout the industry and scientific community, Defendant shall have fulfilled its obligations, if any, herein, and Plaintiffs’ claims shall be barred, in whole or in part. Twentieth Defense If Plaintiffs sustained injuries as a result of exposure to any product manufactured by Defendant, the degree of such damage attributable to Defendant’s product is negligible, and hence, de minimis. Twenty-First Defense Defendant cannot be held jointly and severally liable for acts or omissions of other defendants because the acts and omissions of those other defendants were separate and distinct and the alleged harm caused by each defendant is divisible. Twenty-Second Defense Defendant is not liable for any damages alleged to have resulted from exposure to any of its products which were manufactured pursuant to Government specifications. Twenty-Third Defense Insofar as Plaintiffs rely upon allegations of negligence, breaches of warranties, fraudulent representations, and violations of obligations of strict product liability as against Defendant prior to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of action by reason of the failure to allege the freedom of Plaintiffs from contributory negligence or fault; and that if Plaintiffs sustained the injuries, losses, and other damages complained of in the Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumption of risk, fault or other culpable conduct of Plaintiffs. -11- 11 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 Twenty-Fourth Defense To the extent that Plaintiffs allege rights assertedly derived from oral warranties or undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds. Twenty-Fifth Defense To the extent Plaintiffs allege a cause of action for express and/or implied warranties and the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between Plaintiffs and Defendant. Twenty-Sixth Defense To the extent that any breach of warranty is alleged, Plaintiffs failed to give proper and prompt notice of any such breach to Defendant. Twenty-Seventh Defense Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from Defendant, and Plaintiffs neither received nor relied upon any representation or warranty allegedly made by Defendant. Twenty-Eighth Defense The action cannot proceed in the absence of all parties who should be named in accordance with CPLR § 1001. Twenty-Ninth Defense The recoverable damages, if any, should be diminished under the collateral source rule set forth in CPLR § 4545. Thirtieth Defense To the extent that Plaintiffs may recover damages from Defendant, Defendant is entitled to indemnification and/or contribution, in whole or part, from each other defendants in this action. -12- 12 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 Thirty-First Defense If Defendant is ultimately found to be liable to Plaintiffs, then, pursuant to CPLR Article 16, it shall only be liable for its equitable share of Plaintiffs’ recovery since any liability which will be found against it will be insufficient to impose joint liability. Thirty-Second Defense Pursuant to CPLR Article 16, the liability, if any, of Defendant for non-economic loss shall not exceed its equitable share of liability. Thirty-Third Defense To the extent Plaintiffs seek to hold Defendant liable retroactively for conduct that was not actionable at the time it occurred, Plaintiffs’ claims violate Defendant’s right to be free from ex post facto laws and Defendant’s procedural and substantive due process rights under the Constitution of the United States. Thirty-Fourth Defense Any claim for exemplary and/or punitive damages is barred because such damages are not recoverable or warranted in this action. Thirty-Fifth Defense The imposition of punitive damages on the facts alleged in the Complaint is barred by the United States Constitution and the Constitution of the State of New York. Thirty-Sixth Defense Plaintiffs’ claims are barred because this Court lacks personal jurisdiction over Defendant. Thirty-Seventh Defense Plaintiffs’ claims are barred due to improper service of the Summons and Complaint on Defendant. -13- 13 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 Thirty-Eighth Defense Plaintiffs’ claim for punitive damages cannot be sustained because it would violate Defendant’s rights under the Constitutions of the United States and the State of New York, including, but not limited to: (a) Defendant’s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments of the Constitution of the United States and under cognate provisions of the Constitution of the State of New York; (b) Defendant’s rights under the double jeopardy clauses of the Fifth Amendment of the United States Constitution and Article I, Section 6 of the New York State Constitution; (c) Defendant’s rights to protection from “excessive fines” as provided in the Constitutions of the United States and the State of New York. Thirty-Ninth Defense The law of New York and the Due Process Clause of the Fourteenth Amendment and the Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant simply for lawfully selling a legal product. Fortieth Defense Punitive damages are inappropriate to serve deterrence and punishment objectives because those will be fully served by past and future liability for the same conduct at issue in this case. Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish Defendant, except to the extent the alleged conduct has had an impact in this State. -14- 14 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 Forty-First Defense All defenses which have been or will be asserted by other defendants and/or third-party defendants in this action are adopted and incorporated herein by reference as if fully set forth at length as defenses to Plaintiffs’ Complaint. In addition, Defendant will rely upon any and all other further defenses which become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend its Answer for purposes of asserting further additional defenses. Dated: January 25, 2024 Respectfully submitted, CARRIER CORPORATION By: Beth L. Hughes One of the Attorneys for Carrier Corporation Beth L. Hughes, Esq. Patrick K.A. Elkins, Esq. Morgan, Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Phone: (212) 309-6000 Fax: (212) 309-6001 beth.hughes@morganlewis.com To: Weitz & Luxenberg P.C. 700 Broadway New York, NY 10003 Attorneys for Plaintiffs -15- 15 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) BETH L. HUGHES, an attorney duly admitted to practice law before the Courts of the State of New York, deposes and says that I am an attorney for Carrier Corporation, with an office located at 101 Park Avenue, New York, New York, that I have read the foregoing Answer and Affirmative Defenses to Plaintiffs’ Complaint on Behalf of Defendant Carrier Corporation, and know the contents thereof, that the same is true upon information and belief and I believe it to be true, that the grounds of my belief are public records, records and documents currently in my possession pertaining to this matter, and conversations with client’s agents, and that the reason why this verification is made by me and not by said defendant is that said defendant is a foreign corporation which has no offices located in New York County where I maintain an office. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: January 25, 2024 New York, New York Beth L. Hughes 16 of 17 FILED: RENSSELAER COUNTY CLERK 01/25/2024 02:53 PM INDEX NO. EF2023-275073 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/25/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RENSSELAER --------------------------------------------------------------------x WAYNE VAN AMBURGH and JUDITH VAN AMBURGH, his spouse, Index No. EF2023-275073 Plaintiffs, vs. AFFIRMATION OF SERVICE AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., et al., Defendants. --------------------------------------------------------------------x STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) BETH HUGHES, an attorney of the State of New York, hereby certifies as follows: 1. I am an attorney at the law firm of Morgan, Lewis & Bockius, attorneys for Defendant Carrier Corporation, in the above-captioned matter. 2. On this day, I caused to be served via electronic mail, the attached Answer to Plaintiffs’ Complaint and Affirmative Defenses of Defendant Carrier Corporation, and Attorney Verification on: Weitz & Luxenberg P.C. 700 Broadway New York, NY 10003 Dated: January 25, 2024 New York, New York Beth L. Hughes 17 of 17