Preview
FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024
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Exhibit D
FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NIAGARA
BENEDICT VIGLIETTA and TERRI VIGLIETTA, Index No. :
FULL CAPTION RIDER
Plaintiffs,
- against -
ASBESTOS CORPORATION LIMITED, a
Corporation of the Province of Quebec;
CBS CORPORATION, a Delaware Corporation, f/k/a
Viacom Inc, Successor by merger to CBS
Corporation, a Pennsylvania Corporation, f/k/a
Westinghouse Electric Corporation;
FRONTIER INSULATION CONTRACTORS, INC.
f/k/a Frontier Insulation and Asbestos, Inc.;
GOULDS PUMPS, INC.;
GRINNELL CORPORATION;
HEDMAN RESOURCES LIMITED;
HONEYWELL INTERNATIONAL, INC.,
Individually and f/k/a Alliedsignal, Inc., and as
Successor-in-interest to the Bendix Corp.;
I.T.T. INDUSTRIES, INC., Individually and as
successor to Bell & Gossett;
INSULATION DISTRIBUTORS, INC.;
MADER CAPITAL, INC., Individually and as
successor in interest to The Mader Corporation
and Rochester Acoustical;
MADER CONSTRUCTION CORPORATION,
Individually and as successor to Rochester
Acoustical;
MADER CORPORATION, Individually and as
successor to Rochester Acoustical;
MADER PLASTERING CORP.;
MADER SERVICE, Individually and as successor to
Rochester Acoustical;
MCLAUGHLIN INSULATION, CO, INC.;
METROPOLITAN LIFE INSURANCE COMPANY;
NIAGARA INSULATIONS, INC. f/k/a Niagara
Asbestos Co., Inc.;
PEERLESS MILL SUPPLY COMPANY, INC.;
PFAUDLER, INC.;
R.E. HEBERT AND COMPANY, INC.;
SIMPSON INVESTMENT COMPANY, Individually
and as Successor to Simpson Timber Company;
UNION CARBIDE CORPORATION;
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UNITED CONVEYOR CORPORATION.
Defendants.
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Defendants’ addresses:
BENEDICT VIGLIETTA’S DEFENDANT ADDRESS LIST
DEFENDANTS SERVICE
ASBESTOS CORPORATION LIMITED, a Corporation of DIRECT
the Province of Quebec
Legal Department
850 Ouellet Boulevard West
Thetford Mines, QC G6G 7A5
CBS CORPORATION, a Delaware Corporation, f/k/a c/o Corporation Service Company
Viacom Inc, Successor by merger to CBS Corporation, a 80 State Street
Pennsylvania Corporation, f/k/a Westinghouse Electric Albany, New York 12207
Corporation
c/o Adrienne Harrington
51 West 52nd Street
New York, New York 10019
FRONTIER INSULATION CONTRACTORS, INC. f/k/a c/o Secretary of State
Frontier Insulation and Asbestos, Inc. Albany, New York 12207
2101 Kenmore Avenue
Buffalo, New York 14207-1695
GOULDS PUMPS, INC. DIRECT
ITT-Goulds Pumps Headquarters
240 Fall Street
Seneca Falls, NY 13148
GRINNELL CORPORATION DIRECT – CERTIFIED MAIL RRR
3 Tyco Park Brady Edwards, Esq.
Exeter, New Hampshire 03833 Morgan, Lewis & Bockius LLP
1000 Louisiana St., Suite 4200
Houston, Texas 77002-5006
HEDMAN RESOURCES LIMITED DIRECT
c/o Stephen A. Edell
First Canadian Place, Suite 5700
100 King Street
Toronto, Ontario M5X 1C7 Canada
HONEYWELL INTERNATIONAL, INC., Individually and c/o Corporation Service Company
f/k/a Alliedsignal, Inc., and as Successor-in-interest to the 80 State Street
Bendix Corp. Albany, New York 12207-2543
115 Tabor Road
Morris Plains, New Jersey 07950
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I.T.T. INDUSTRIES, INC., Individually and as successor to DIRECT
Bell & Gossett
ITT Corporation
1133 Westchester Avenue
Suite N300
White Plains, New York 10604
INSULATION DISTRIBUTORS, INC. DIRECT – CERTIFIED MAIL RRR
356 Hertel Avenue Damon & Morey LLP
Buffalo, New York 14207 1000 Cathedral Place
298 Main Street
Buffalo, New York 14202-4096
MADER CAPITAL, INC., Individually and as successor in DIRECT – CERTIFIED MAIL RRR
interest to The Mader Corporation and Rochester Acoustical c/o Ann W. Herman
Feldman, Kieffer & Herman, LLP
The Dun Building
110 Pearl Street -Suite 400
Buffalo, New York 14202
MADER CONSTRUCTION CORPORATION, Individually DIRECT – CERTIFIED MAIL RRR
and as successor to Rochester Acoustical c/o Ann W. Herman
James Biddle Sr. Feldman, Kieffer & Herman, LLP
970 Bullis Road The Dun Building
P.O. Box 420 110 Pearl Street -Suite 400
Elma, New York, 14059-0420 Buffalo, New York 14202
MADER CORPORATION, Individually and as successor to DIRECT – CERTIFIED MAIL RRR
Rochester Acoustical c/o Ann W. Herman
James Biddle Sr. Feldman, Kieffer & Herman, LLP
970 Bullis Road The Dun Building
P.O. Box 420 110 Pearl Street -Suite 400
Elma, New York, 14059-0420 Buffalo, New York 14202
MADER PLASTERING CORP. DIRECT – CERTIFIED MAIL RRR
609 Indian Church Road c/o Ann W. Herman
West Seneca, New York 14224 Feldman, Kieffer & Herman, LLP
The Dun Building
110 Pearl Street -Suite 400
Buffalo, New York 14202
MADER SERVICE, Individually and as successor to DIRECT – CERTIFIED MAIL RRR
Rochester Acoustical c/o Ann W. Herman
James Biddle Sr. Feldman, Kieffer & Herman, LLP
970 Bullis Road The Dun Building
P.O. Box 420 110 Pearl Street -Suite 400
Elma, New York, 14059-0420 Buffalo, New York 14202
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MCLAUGHLIN INSULATION, CO., INC. DIRECT
17 Lamson Road
Kenmore, New York 14223
METROPOLITAN LIFE INSURANCE COMPANY c/o Corporate Trust Systems
200 Park Avenue 28 Liberty Street
New York, New York 10166 New York, New York
NIAGARA INSULATIONS, INC. f/k/a Niagara Asbestos DIRECT – CERTIFIED MAIL RRR
Co., Inc. Lewis, Brisbois, Bisgaard & Smith, LLP
79 Perry Street 77 Water Street, Suite 2100
Buffalo, New York 14203 New York, New York 10005
PEERLESS MILL SUPPLY COMPANY, INC. DIRECT – CERTIFIED MAIL RRR
Richard F. Mckendry Philip J. O’Rourke, Esq.
79 Perry Street Lewis Brisbois Bisgaard & Smith LLP
Buffalo, New York 14203 77 Water Street, Suite 2100
New York, NY 10005
PFAUDLER, INC. DIRECT
1000 West Avenue
P.O. Box 23600
Rochester, NY 14692-3600
R.E. HEBERT AND COMPANY, INC. c/o Nicole A. Heary, Esq.
275 McKee Road Feldman, Kieffer & Herman, LLP
Rochester, New York 14611 The Dun Building
110 Pearl Street -Suite 400
Buffalo, New York 14202
-AND-
c/o Secretary of State
Albany, New York 12207
SIMPSON INVESTMENT COMPANY, Individually and as CT Corporation
Successor to Simpson Timber Company 818 West Seventh Street
917 East 11th Street Los Angeles, California 90017
Tacoma, Washington 98421
UNION CARBIDE CORPORATION c/o Corporate Trust Systems
28 Liberty Street
New York, New York
UNITED CONVEYOR CORPORATION DIRECT
2100 Norman Drive West
Waukegan, Illinois 60085
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NIAGARA
BENEDICT VIGLIETTA and TERRI VIGLIETTA, Index No. :
VERIFIED COMPLAINT
Plaintiffs,
- against -
ASBESTOS CORPORATION LIMITED, a
Corporation of the Province of Quebec;
CBS CORPORATION, a Delaware Corporation, f/k/a
Viacom Inc, Successor by merger to CBS
Corporation, a Pennsylvania Corporation, f/k/a
Westinghouse Electric Corporation;
FRONTIER INSULATION CONTRACTORS, INC.
f/k/a Frontier Insulation and Asbestos, Inc.;
GOULDS PUMPS, INC.;
GRINNELL CORPORATION;
HEDMAN RESOURCES LIMITED;
HONEYWELL INTERNATIONAL, INC.,
Individually and f/k/a Alliedsignal, Inc., and as
Successor-in-interest to the Bendix Corp.;
I.T.T. INDUSTRIES, INC., Individually and as
successor to Bell & Gossett;
INSULATION DISTRIBUTORS, INC.;
MADER CAPITAL, INC., Individually and as
successor in interest to The Mader Corporation
and Rochester Acoustical;
MADER CONSTRUCTION CORPORATION,
Individually and as successor to Rochester
Acoustical;
MADER CORPORATION, Individually and as
successor to Rochester Acoustical;
MADER PLASTERING CORP.;
MADER SERVICE, Individually and as successor to
Rochester Acoustical;
MCLAUGHLIN INSULATION, CO, INC.;
METROPOLITAN LIFE INSURANCE COMPANY;
NIAGARA INSULATIONS, INC. f/k/a Niagara
Asbestos Co., Inc.;
PEERLESS MILL SUPPLY COMPANY, INC.;
PFAUDLER, INC.;
R.E. HEBERT AND COMPANY, INC.;
SIMPSON INVESTMENT COMPANY, Individually
and as Successor to Simpson Timber Company;
UNION CARBIDE CORPORATION;
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UNITED CONVEYOR CORPORATION.
Defendants.
Plaintiffs by their attorneys, BELLUCK & FOX LLP, upon information and belief, at all
times hereinafter mentioned allege as follows:
THE PARTIES
1. Plaintiffs are residents of the State of Washington unless otherwise specified in
individual complaints.
2. Plaintiffs allege that plaintiff, BENEDICT VIGLIETTA has been diagnosed with
Mesothelioma as a result of his exposure to asbestos.
3. At this time, Plaintiffs are alleging that there is no Post 1980 exposure.
4. The term “Defendants” shall apply to all corporate and business entities, and/or
their predecessors and/or successors in interest as more fully described and enumerated in the
captions of individual complaints subsequently filed in the "short form" in accordance with the
applicable case management order of this Court.
5. The Defendants have done business in this State, have conducted or transacted
business in this State, have committed one or more tortious acts within this state, 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.
6. Defendant ASBESTOS CORPORATION LIMITED, a Corporation of the
Province of Quebec was and is a duly organized foreign and/or domestic corporation doing
business and/or transacting business in the State of New York and/or should have expected its
acts to have consequences within the State of New York. At all times relevant, it has engaged in
the sale and distribution of materials and products containing the substance asbestos.
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7. Defendant CBS CORPORATION, a Delaware Corporation, f/k/a Viacom Inc,
Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse
Electric Corporation was and is a duly organized foreign corporation doing business and/or
transacting business in the State of New York and/or should have expected its acts to have
consequences within the State of New York. At all times relevant, it has engaged in the sale and
distribution of materials and products containing the substance asbestos.
8. Defendant FRONTIER INSULATION CONTRACTORS, INC., f/k/a
Frontier Insulation And Asbestos, Inc. was and is a duly organized domestic corporation doing
business and/or transacting business in the State of New York and/or should have expected its
acts to have consequences within the State of New York. At all times relevant, it has engaged in
the sale and distribution of materials and products containing the substance asbestos.
9. Defendant GOULDS PUMPS, INC. was and is a duly organized foreign and/or
domestic corporation doing business and/or transacting business in the State of New York and/or
should have expected its acts to have consequences within the State of New York. At all times
relevant, it has engaged in the sale and distribution of materials and products containing the
substance asbestos.
10. Defendant GRINNELL CORPORATION was and is a duly organized foreign
corporation doing business and/or transacting business in the State of New York and/or should
have expected its acts to have consequences within the State of New York. At all times relevant,
it has engaged in the sale and distribution of materials and products containing the substance
asbestos.
11. Defendant HEDMAN RESOURCES LIMITED was and is a duly organized
foreign and/or domestic corporation doing business and/or transacting business in the State of
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New York and/or should have expected its acts to have consequences within the State of New
York. At all times relevant, it has engaged in the sale and distribution of materials and products
containing the substance asbestos.
12. Defendant HONEYWELL INTERNATIONAL, INC., and as Successor-in-
Interest to the Bendix Corp. was and is a duly organized foreign corporation doing business
and/or transacting business in the State of New York and/or should have expected its acts to have
consequences within the State of New York. At all times relevant, it has engaged in the sale and
distribution of materials and products containing the substance asbestos.
13. Defendant I.T.T. INDUSTRIES, INC., Individually and as successor to Bell &
Gossett was and is a duly organized foreign corporation doing business and/or transacting
business in the State of New York and/or should have expected its acts to have consequences
within the State of New York. At all times relevant, it has engaged in the sale and distribution of
materials and products containing the substance asbestos.
14. Defendant INSULATION DISTRIBUTORS, INC. was and is a duly organized
domestic corporation doing business and/or transacting business in the State of New York and/or
should have expected its acts to have consequences within the State of New York. At all times
relevant, it has engaged in the sale and distribution of materials and products containing the
substance asbestos. At all times relevant, Defendant either performed or was responsible for
performing, as either premises owner or contractor, the construction, installation, maintenance,
repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and
exposed to asbestos.
15. Defendant MADER CAPITAL, INC., Individually and as successor in
interest to The Mader Corporation and Rochester Acoustical was and is a duly organized
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domestic corporation doing business and/or transacting business in the State of New York and/or
should have expected its acts to have consequences within the State of New York. At all times
relevant, it has engaged in the sale and distribution of materials and products containing the
substance asbestos. At all times relevant, Defendant either performed or was responsible for
performing, as either premises owner or contractor, the construction, installation, maintenance,
repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and
exposed to asbestos.
16. Defendant MADER CONSTRUCTION CORPORATION, Individually and
as successor to Rochester Acoustical was and is a duly organized domestic corporation doing
business and/or transacting business in the State of New York and/or should have expected its
acts to have consequences within the State of New York. At all times relevant, it has engaged in
the sale and distribution of materials and products containing the substance asbestos. At all times
relevant, Defendant either performed or was responsible for performing, as either premises
owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at
the premises on which plaintiff was lawfully frequenting and exposed to asbestos.
17. Defendant MADER CORPORATION, Individually and as successor to
Rochester Acoustical was and is a duly organized domestic corporation doing business and/or
transacting business in the State of New York and/or should have expected its acts to have
consequences within the State of New York. At all times relevant, it has engaged in the sale and
distribution of materials and products containing the substance asbestos. At all times relevant,
Defendant either performed or was responsible for performing, as either premises owner or
contractor, the construction, installation, maintenance, repair, control, and/or safety at the
premises on which plaintiff was lawfully frequenting and exposed to asbestos.
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18. Defendant MADER PLASTERING CORP. was and is a duly organized
domestic corporation doing business and/or transacting business in the State of New York and/or
should have expected its acts to have consequences within the State of New York. At all times
relevant, it has engaged in the sale and distribution of materials and products containing the
substance asbestos. At all times relevant, Defendant either performed or was responsible for
performing, as either premises owner or contractor, the construction, installation, maintenance,
repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and
exposed to asbestos.
19. Defendant MADER SERVICE, Individually and as successor to Rochester
Acoustical was and is a duly organized domestic corporation doing business and/or transacting
business in the State of New York and/or should have expected its acts to have consequences
within the State of New York. At all times relevant, it has engaged in the sale and distribution of
materials and products containing the substance asbestos. At all times relevant, Defendant either
performed or was responsible for performing, as either premises owner or contractor, the
construction, installation, maintenance, repair, control, and/or safety at the premises on which
plaintiff was lawfully frequenting and exposed to asbestos.
20. Defendant MCLAUGHLIN INSULATION, CO., INC. was and is a duly
organized foreign and/or domestic corporation doing business and/or transacting business in the
State of New York and/or should have expected its acts to have consequences within the State of
New York. At all times relevant, it has engaged in the sale and distribution of materials and
products containing the substance asbestos.
21. Defendant METROPOLITAN LIFE INSURANCE COMPANY was and is a
duly organized foreign and/or domestic corporation doing business and/or transacting business in
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the State of New York and/or should have expected its acts to have consequences within the
State of New York.
22. Defendant NIAGARA INSULATIONS, INC., f/k/a Niagara Asbestos Co, Inc.
was and is a duly organized domestic corporation doing business and/or transacting business in
the State of New York and/or should have expected its acts to have consequences within the
State of New York. At all times relevant, it has engaged in the sale and distribution of materials
and products containing the substance asbestos. At all times relevant, Defendant either
performed or was responsible for performing, as either premises owner or contractor, the
construction, installation, maintenance, repair, control, and/or safety at the premises on which
plaintiff was lawfully frequenting and exposed to asbestos.
23. Defendant PEERLESS MILL SUPPLY COMPANY, INC. was and is a duly
organized foreign corporation doing business and/or transacting business in the State of New
York and/or should have expected its acts to have consequences within the State of New York.
At all times relevant, it has engaged in the sale and distribution of materials and products
containing the substance asbestos.
24. Defendant PFAUDLER, INC. was and is a duly organized foreign corporation
doing business and/or transacting business in the State of New York and/or should have expected
its acts to have consequences within the State of New York. At all times relevant, it has engaged
in the sale and distribution of materials and products containing the substance asbestos.
25. Defendant R.E. HEBERT AND COMPANY, INC. was and is a duly organized
domestic corporation doing business and/or transacting business in the State of New York and/or
should have expected its acts to have consequences within the State of New York. At all times
relevant, it has engaged in the sale and distribution of materials and products containing the
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substance asbestos. At all times relevant, Defendant either performed or was responsible for
performing, as either premises owner or contractor, the construction, installation, maintenance,
repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and
exposed to asbestos.
26. Defendant SIMPSON INVESTMENT COMPANY, Individually and as
Successor to Simpson Timber Company was and is a duly organized foreign corporation doing
business and/or transacting business in the State of New York and/or should have expected its
acts to have consequences within the State of New York. At all times relevant, it has engaged in
the sale and distribution of materials and products containing the substance asbestos.
27. Defendant UNION CARBIDE CORPORATION was and is a duly organized
domestic corporation doing business and/or transacting business in the State of New York and/or
should have expected its acts to have consequences within the State of New York. At all times
relevant, it has engaged in the sale and distribution of materials and products containing the
substance asbestos.
28. Defendant UNITED CONVEYOR CORPORATION was and is a duly
organized domestic corporation doing business and/or transacting business in the State of New
York and/or should have expected its acts to have consequences within the State of New York.
At all times relevant, it has engaged in the sale and distribution of materials and products
containing the substance asbestos.
29. Defendant "JOHN DOE" #1 is a contractor, supplier, distributor and/or
manufacturer of asbestos products and machinery and equipment including the installation
and/or use of asbestos-containing products each of whom maintained a presence at the work sites
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and/or other facilities, structures and/or edifices where the Plaintiff was exposed to or used
several asbestos products, materials, and equipment and machinery.
30. The Defendants have done business in this State, have conducted or transacted
business in this State, have committed one or more tortious acts within this state, 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.
31. The actions and conduct of the Defendants as more fully described below were
carried out through their respective offices, by authorized agents, servants and employees, who
were acting in the course and scope of their employment and authority, and in furtherance of the
business and profit of the Defendants.
32. Each Defendant, with the exception of the METROPOLITAN LIFE
INSURANCE COMPANY has been engaged in the mining, production, processing, design,
manufacture, marketing, supply, delivery, distribution, installation, use, purchase, removal
and/or sale of raw asbestos fibers of various kinds and grades, asbestos-containing products,
and/or machinery and equipment requiring or calling for the use of asbestos and/or asbestos-
containing products (hereinafter collectively referred to as Asbestos products).
33. Plaintiff, worked with, came in contact with, or was exposed to, asbestos products
while working in various shipyards, steel mills, refineries, paper mills, chemical plants, industrial
sites and facilities, construction sites and other facilities or was exposed to the defendants’
products through the normal use of these products.
34. During the course of his employment, the Plaintiff was exposed on numerous
occasions to asbestos products which were mined, produced, processed, designed, manufactured,
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marketed, supplied, delivered, distributed, installed, used, purchased, removed or sold by the
Defendants.
35. During the course, and in furtherance of, his employment and life, the Plaintiff
was unavoidably exposed to, inhaled and ingested asbestos fibers and dust contained within and
emanating from the Defendants’ asbestos products.
36. As a direct and proximate result of his unavoidable exposure to, and resultant
inhalation and ingestion of, asbestos fibers and dust as contained within and emanating from the
Defendants’ asbestos products, Plaintiff has/did develop(ed) a progressive, debilitating asbestos-
related illness/disease and/or risk of death.
37. Plaintiff alleges that each and every exposure to Defendants’ asbestos products
caused or contributed to his injuries, such that the Defendants are jointly and severally liable to
the Plaintiff for the resultant asbestos-related illness/disease and/or risk of death alleged herein.
AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE
38. Plaintiff repeats and reiterates the prior allegations of this complaint as if alleged
more fully below:
39. Defendants knew, or with reasonable diligence should have known and/or
ascertained, that their asbestos products were inherently dangerous and hazardous to the health
and well-being of those using, exposed to or coming in contact with Defendants’ asbestos
products.
40. Defendants knew, or with reasonable diligence should have known and/or
ascertained, that the reasonable and anticipated use of, exposure to or contact with their asbestos
products would cause the release of asbestos fibers and dust into the ambient air, creating danger
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and unreasonable risk of injury and harm to those breathing the air contaminated with such
asbestos fibers and dust.
41. Defendants knew, or with reasonable diligence should have known and/or
ascertained, that the Plaintiff would use or come into contact with Defendants’ asbestos products
and in so doing, would become exposed to and inhale and ingest the asbestos fibers and dust in
the ambient air as they were discharged and released from the Defendants’ products in the course
of ordinary and foreseeable contact, application and use of those products.
42. Defendants knew, or with reasonable diligence should have known and/or
ascertained that the Plaintiff used, came into contact with, and was exposed to Defendants’
asbestos products and the fibers and dust emanating from and released by those products without
any knowledge of the dangers and potential risk of harm to which he was being exposed.
43. Despite knowledge of the unsafe and dangerous nature and properties of their
respective asbestos products, the Defendants willfully, recklessly and negligently:
(a) failed to warn the public at large, and more particularly this Plaintiff, of
the dangers and hazards associated with or caused by the use of, exposure to or contact with
Defendants’ asbestos products resulting from the ordinary, anticipated and foreseeable use of
Defendants’ asbestos products;
(b) failed to study, investigate and/or properly test their asbestos products for
both potential and actual hazards associated with the use of, exposure to and contact with
Defendants’ asbestos products, when such products were used in a reasonably foreseeable and
anticipated manner;
(c) failed to communicate or convey their suspicions and knowledge with
respect to potential or actual dangers and health hazards associated with the use of, exposure to
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or contact with Defendants’ asbestos products resulting in inhalation and ingestion of asbestos
fibers and dust to the users and consumers of the Defendants’ asbestos products;
(d) failed to design or redesign Defendants’ asbestos products to prevent,
impede or minimize the release of airborne inhalable and ingestible asbestos fibers and dust;
(e) failed to properly design and manufacture Defendants’ asbestos products
to insure safe use and handling by users and consumers under conditions that were reasonably
anticipated and foreseeable;
(f) failed to advise the public at large, and more particularly this Plaintiff, of
the necessity for protective garments, safety equipment and appliances to protect the
user/consumer from harm caused by inhalation and ingestion of asbestos fibers and dust released
by, and associated with, the ordinary and foreseeable use of, and contact with, Defendants’
asbestos products;
(g) failed to institute, adopt or enforce appropriate safety protocols for
handling and use of asbestos products to individuals working with, utilizing, handling or
otherwise coming into contact with Defendants’ asbestos products;
(h) failed to adequately package their respective asbestos products in a
manner which would insure safe handling and use by those individuals, including this Plaintiff,
who the Defendants’ knew or should have reasonably anticipated would be exposed to asbestos
fibers and dust released by and associated with the ordinary and foreseeable use of Defendants’
asbestos products;
(i) failed to remove their asbestos products from the stream of commerce
despite knowledge of the unsafe and dangerous nature of those products;
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(j) continued to mine, produce, process, design, manufacture, market, supply,
deliver, distribute, install, use, purchase, remove and sell asbestos products for general
application and purposes without any alteration or change, despite the potential and known
health hazards and dangers posed to the foreseeable and anticipated user and consumer of those
products;
(k) failed to timely develop and utilize substitute materials for asbestos in
their asbestos products;
(l) failed to design or redesign asbestos-containing products to prevent,
impede or minimize the release of airborne inhalable and ingestible asbestos fibers and dust;
and,
(m) failed to recall and/or issue a post-sale warning for their asbestos products.
44. The continued mining, production, processing, design, manufacture, marketing,
distribution, supply, use, purchase, installation, removal, delivery, and sale by the Defendants’ of
their respective asbestos products under the circumstances and conditions enumerated above,
demonstrates the callous, reckless, willful, depraved and wanton indifference to and disregard of
the health, safety and welfare of the public at large, and more particularly, this Plaintiff.
45. As a result of the Defendants’ negligence and recklessness, the Plaintiff
unwittingly and unavoidably inhaled and ingested asbestos fibers and dust, resulting in the
development of his asbestos related disease and illness; Plaintiff has been caused to endure
severe physical pain and suffering and mental anguish; has been placed at increased risk for
developing oth
Preview
FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 Exhibit D FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 1 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NIAGARA BENEDICT VIGLIETTA and TERRI VIGLIETTA, Index No. : FULL CAPTION RIDER Plaintiffs, - against - ASBESTOS CORPORATION LIMITED, a Corporation of the Province of Quebec; CBS CORPORATION, a Delaware Corporation, f/k/a Viacom Inc, Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; FRONTIER INSULATION CONTRACTORS, INC. f/k/a Frontier Insulation and Asbestos, Inc.; GOULDS PUMPS, INC.; GRINNELL CORPORATION; HEDMAN RESOURCES LIMITED; HONEYWELL INTERNATIONAL, INC., Individually and f/k/a Alliedsignal, Inc., and as Successor-in-interest to the Bendix Corp.; I.T.T. INDUSTRIES, INC., Individually and as successor to Bell & Gossett; INSULATION DISTRIBUTORS, INC.; MADER CAPITAL, INC., Individually and as successor in interest to The Mader Corporation and Rochester Acoustical; MADER CONSTRUCTION CORPORATION, Individually and as successor to Rochester Acoustical; MADER CORPORATION, Individually and as successor to Rochester Acoustical; MADER PLASTERING CORP.; MADER SERVICE, Individually and as successor to Rochester Acoustical; MCLAUGHLIN INSULATION, CO, INC.; METROPOLITAN LIFE INSURANCE COMPANY; NIAGARA INSULATIONS, INC. f/k/a Niagara Asbestos Co., Inc.; PEERLESS MILL SUPPLY COMPANY, INC.; PFAUDLER, INC.; R.E. HEBERT AND COMPANY, INC.; SIMPSON INVESTMENT COMPANY, Individually and as Successor to Simpson Timber Company; UNION CARBIDE CORPORATION; -2- 2 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 UNITED CONVEYOR CORPORATION. Defendants. -3- 3 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 Defendants’ addresses: BENEDICT VIGLIETTA’S DEFENDANT ADDRESS LIST DEFENDANTS SERVICE ASBESTOS CORPORATION LIMITED, a Corporation of DIRECT the Province of Quebec Legal Department 850 Ouellet Boulevard West Thetford Mines, QC G6G 7A5 CBS CORPORATION, a Delaware Corporation, f/k/a c/o Corporation Service Company Viacom Inc, Successor by merger to CBS Corporation, a 80 State Street Pennsylvania Corporation, f/k/a Westinghouse Electric Albany, New York 12207 Corporation c/o Adrienne Harrington 51 West 52nd Street New York, New York 10019 FRONTIER INSULATION CONTRACTORS, INC. f/k/a c/o Secretary of State Frontier Insulation and Asbestos, Inc. Albany, New York 12207 2101 Kenmore Avenue Buffalo, New York 14207-1695 GOULDS PUMPS, INC. DIRECT ITT-Goulds Pumps Headquarters 240 Fall Street Seneca Falls, NY 13148 GRINNELL CORPORATION DIRECT – CERTIFIED MAIL RRR 3 Tyco Park Brady Edwards, Esq. Exeter, New Hampshire 03833 Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4200 Houston, Texas 77002-5006 HEDMAN RESOURCES LIMITED DIRECT c/o Stephen A. Edell First Canadian Place, Suite 5700 100 King Street Toronto, Ontario M5X 1C7 Canada HONEYWELL INTERNATIONAL, INC., Individually and c/o Corporation Service Company f/k/a Alliedsignal, Inc., and as Successor-in-interest to the 80 State Street Bendix Corp. Albany, New York 12207-2543 115 Tabor Road Morris Plains, New Jersey 07950 -4- 4 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 I.T.T. INDUSTRIES, INC., Individually and as successor to DIRECT Bell & Gossett ITT Corporation 1133 Westchester Avenue Suite N300 White Plains, New York 10604 INSULATION DISTRIBUTORS, INC. DIRECT – CERTIFIED MAIL RRR 356 Hertel Avenue Damon & Morey LLP Buffalo, New York 14207 1000 Cathedral Place 298 Main Street Buffalo, New York 14202-4096 MADER CAPITAL, INC., Individually and as successor in DIRECT – CERTIFIED MAIL RRR interest to The Mader Corporation and Rochester Acoustical c/o Ann W. Herman Feldman, Kieffer & Herman, LLP The Dun Building 110 Pearl Street -Suite 400 Buffalo, New York 14202 MADER CONSTRUCTION CORPORATION, Individually DIRECT – CERTIFIED MAIL RRR and as successor to Rochester Acoustical c/o Ann W. Herman James Biddle Sr. Feldman, Kieffer & Herman, LLP 970 Bullis Road The Dun Building P.O. Box 420 110 Pearl Street -Suite 400 Elma, New York, 14059-0420 Buffalo, New York 14202 MADER CORPORATION, Individually and as successor to DIRECT – CERTIFIED MAIL RRR Rochester Acoustical c/o Ann W. Herman James Biddle Sr. Feldman, Kieffer & Herman, LLP 970 Bullis Road The Dun Building P.O. Box 420 110 Pearl Street -Suite 400 Elma, New York, 14059-0420 Buffalo, New York 14202 MADER PLASTERING CORP. DIRECT – CERTIFIED MAIL RRR 609 Indian Church Road c/o Ann W. Herman West Seneca, New York 14224 Feldman, Kieffer & Herman, LLP The Dun Building 110 Pearl Street -Suite 400 Buffalo, New York 14202 MADER SERVICE, Individually and as successor to DIRECT – CERTIFIED MAIL RRR Rochester Acoustical c/o Ann W. Herman James Biddle Sr. Feldman, Kieffer & Herman, LLP 970 Bullis Road The Dun Building P.O. Box 420 110 Pearl Street -Suite 400 Elma, New York, 14059-0420 Buffalo, New York 14202 -5- 5 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 MCLAUGHLIN INSULATION, CO., INC. DIRECT 17 Lamson Road Kenmore, New York 14223 METROPOLITAN LIFE INSURANCE COMPANY c/o Corporate Trust Systems 200 Park Avenue 28 Liberty Street New York, New York 10166 New York, New York NIAGARA INSULATIONS, INC. f/k/a Niagara Asbestos DIRECT – CERTIFIED MAIL RRR Co., Inc. Lewis, Brisbois, Bisgaard & Smith, LLP 79 Perry Street 77 Water Street, Suite 2100 Buffalo, New York 14203 New York, New York 10005 PEERLESS MILL SUPPLY COMPANY, INC. DIRECT – CERTIFIED MAIL RRR Richard F. Mckendry Philip J. O’Rourke, Esq. 79 Perry Street Lewis Brisbois Bisgaard & Smith LLP Buffalo, New York 14203 77 Water Street, Suite 2100 New York, NY 10005 PFAUDLER, INC. DIRECT 1000 West Avenue P.O. Box 23600 Rochester, NY 14692-3600 R.E. HEBERT AND COMPANY, INC. c/o Nicole A. Heary, Esq. 275 McKee Road Feldman, Kieffer & Herman, LLP Rochester, New York 14611 The Dun Building 110 Pearl Street -Suite 400 Buffalo, New York 14202 -AND- c/o Secretary of State Albany, New York 12207 SIMPSON INVESTMENT COMPANY, Individually and as CT Corporation Successor to Simpson Timber Company 818 West Seventh Street 917 East 11th Street Los Angeles, California 90017 Tacoma, Washington 98421 UNION CARBIDE CORPORATION c/o Corporate Trust Systems 28 Liberty Street New York, New York UNITED CONVEYOR CORPORATION DIRECT 2100 Norman Drive West Waukegan, Illinois 60085 -6- 6 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NIAGARA BENEDICT VIGLIETTA and TERRI VIGLIETTA, Index No. : VERIFIED COMPLAINT Plaintiffs, - against - ASBESTOS CORPORATION LIMITED, a Corporation of the Province of Quebec; CBS CORPORATION, a Delaware Corporation, f/k/a Viacom Inc, Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; FRONTIER INSULATION CONTRACTORS, INC. f/k/a Frontier Insulation and Asbestos, Inc.; GOULDS PUMPS, INC.; GRINNELL CORPORATION; HEDMAN RESOURCES LIMITED; HONEYWELL INTERNATIONAL, INC., Individually and f/k/a Alliedsignal, Inc., and as Successor-in-interest to the Bendix Corp.; I.T.T. INDUSTRIES, INC., Individually and as successor to Bell & Gossett; INSULATION DISTRIBUTORS, INC.; MADER CAPITAL, INC., Individually and as successor in interest to The Mader Corporation and Rochester Acoustical; MADER CONSTRUCTION CORPORATION, Individually and as successor to Rochester Acoustical; MADER CORPORATION, Individually and as successor to Rochester Acoustical; MADER PLASTERING CORP.; MADER SERVICE, Individually and as successor to Rochester Acoustical; MCLAUGHLIN INSULATION, CO, INC.; METROPOLITAN LIFE INSURANCE COMPANY; NIAGARA INSULATIONS, INC. f/k/a Niagara Asbestos Co., Inc.; PEERLESS MILL SUPPLY COMPANY, INC.; PFAUDLER, INC.; R.E. HEBERT AND COMPANY, INC.; SIMPSON INVESTMENT COMPANY, Individually and as Successor to Simpson Timber Company; UNION CARBIDE CORPORATION; -7- 7 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 UNITED CONVEYOR CORPORATION. Defendants. Plaintiffs by their attorneys, BELLUCK & FOX LLP, upon information and belief, at all times hereinafter mentioned allege as follows: THE PARTIES 1. Plaintiffs are residents of the State of Washington unless otherwise specified in individual complaints. 2. Plaintiffs allege that plaintiff, BENEDICT VIGLIETTA has been diagnosed with Mesothelioma as a result of his exposure to asbestos. 3. At this time, Plaintiffs are alleging that there is no Post 1980 exposure. 4. The term “Defendants” shall apply to all corporate and business entities, and/or their predecessors and/or successors in interest as more fully described and enumerated in the captions of individual complaints subsequently filed in the "short form" in accordance with the applicable case management order of this Court. 5. The Defendants have done business in this State, have conducted or transacted business in this State, have committed one or more tortious acts within this state, 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. 6. Defendant ASBESTOS CORPORATION LIMITED, a Corporation of the Province of Quebec was and is a duly organized foreign and/or domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. -8- 8 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 7. Defendant CBS CORPORATION, a Delaware Corporation, f/k/a Viacom Inc, Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation was and is a duly organized foreign corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 8. Defendant FRONTIER INSULATION CONTRACTORS, INC., f/k/a Frontier Insulation And Asbestos, Inc. was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 9. Defendant GOULDS PUMPS, INC. was and is a duly organized foreign and/or domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 10. Defendant GRINNELL CORPORATION was and is a duly organized foreign corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 11. Defendant HEDMAN RESOURCES LIMITED was and is a duly organized foreign and/or domestic corporation doing business and/or transacting business in the State of -9- 9 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 12. Defendant HONEYWELL INTERNATIONAL, INC., and as Successor-in- Interest to the Bendix Corp. was and is a duly organized foreign corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 13. Defendant I.T.T. INDUSTRIES, INC., Individually and as successor to Bell & Gossett was and is a duly organized foreign corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 14. Defendant INSULATION DISTRIBUTORS, INC. was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. At all times relevant, Defendant either performed or was responsible for performing, as either premises owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 15. Defendant MADER CAPITAL, INC., Individually and as successor in interest to The Mader Corporation and Rochester Acoustical was and is a duly organized - 10 - 10 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. At all times relevant, Defendant either performed or was responsible for performing, as either premises owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 16. Defendant MADER CONSTRUCTION CORPORATION, Individually and as successor to Rochester Acoustical was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. At all times relevant, Defendant either performed or was responsible for performing, as either premises owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 17. Defendant MADER CORPORATION, Individually and as successor to Rochester Acoustical was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. At all times relevant, Defendant either performed or was responsible for performing, as either premises owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. - 11 - 11 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 18. Defendant MADER PLASTERING CORP. was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. At all times relevant, Defendant either performed or was responsible for performing, as either premises owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 19. Defendant MADER SERVICE, Individually and as successor to Rochester Acoustical was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. At all times relevant, Defendant either performed or was responsible for performing, as either premises owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 20. Defendant MCLAUGHLIN INSULATION, CO., INC. was and is a duly organized foreign and/or domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 21. Defendant METROPOLITAN LIFE INSURANCE COMPANY was and is a duly organized foreign and/or domestic corporation doing business and/or transacting business in - 12 - 12 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 the State of New York and/or should have expected its acts to have consequences within the State of New York. 22. Defendant NIAGARA INSULATIONS, INC., f/k/a Niagara Asbestos Co, Inc. was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. At all times relevant, Defendant either performed or was responsible for performing, as either premises owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 23. Defendant PEERLESS MILL SUPPLY COMPANY, INC. was and is a duly organized foreign corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 24. Defendant PFAUDLER, INC. was and is a duly organized foreign corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 25. Defendant R.E. HEBERT AND COMPANY, INC. was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the - 13 - 13 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 substance asbestos. At all times relevant, Defendant either performed or was responsible for performing, as either premises owner or contractor, the construction, installation, maintenance, repair, control, and/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 26. Defendant SIMPSON INVESTMENT COMPANY, Individually and as Successor to Simpson Timber Company was and is a duly organized foreign corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 27. Defendant UNION CARBIDE CORPORATION was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 28. Defendant UNITED CONVEYOR CORPORATION was and is a duly organized domestic corporation doing business and/or transacting business in the State of New York and/or should have expected its acts to have consequences within the State of New York. At all times relevant, it has engaged in the sale and distribution of materials and products containing the substance asbestos. 29. Defendant "JOHN DOE" #1 is a contractor, supplier, distributor and/or manufacturer of asbestos products and machinery and equipment including the installation and/or use of asbestos-containing products each of whom maintained a presence at the work sites - 14 - 14 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 and/or other facilities, structures and/or edifices where the Plaintiff was exposed to or used several asbestos products, materials, and equipment and machinery. 30. The Defendants have done business in this State, have conducted or transacted business in this State, have committed one or more tortious acts within this state, 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. 31. The actions and conduct of the Defendants as more fully described below were carried out through their respective offices, by authorized agents, servants and employees, who were acting in the course and scope of their employment and authority, and in furtherance of the business and profit of the Defendants. 32. Each Defendant, with the exception of the METROPOLITAN LIFE INSURANCE COMPANY has been engaged in the mining, production, processing, design, manufacture, marketing, supply, delivery, distribution, installation, use, purchase, removal and/or sale of raw asbestos fibers of various kinds and grades, asbestos-containing products, and/or machinery and equipment requiring or calling for the use of asbestos and/or asbestos- containing products (hereinafter collectively referred to as Asbestos products). 33. Plaintiff, worked with, came in contact with, or was exposed to, asbestos products while working in various shipyards, steel mills, refineries, paper mills, chemical plants, industrial sites and facilities, construction sites and other facilities or was exposed to the defendants’ products through the normal use of these products. 34. During the course of his employment, the Plaintiff was exposed on numerous occasions to asbestos products which were mined, produced, processed, designed, manufactured, - 15 - 15 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 marketed, supplied, delivered, distributed, installed, used, purchased, removed or sold by the Defendants. 35. During the course, and in furtherance of, his employment and life, the Plaintiff was unavoidably exposed to, inhaled and ingested asbestos fibers and dust contained within and emanating from the Defendants’ asbestos products. 36. As a direct and proximate result of his unavoidable exposure to, and resultant inhalation and ingestion of, asbestos fibers and dust as contained within and emanating from the Defendants’ asbestos products, Plaintiff has/did develop(ed) a progressive, debilitating asbestos- related illness/disease and/or risk of death. 37. Plaintiff alleges that each and every exposure to Defendants’ asbestos products caused or contributed to his injuries, such that the Defendants are jointly and severally liable to the Plaintiff for the resultant asbestos-related illness/disease and/or risk of death alleged herein. AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE 38. Plaintiff repeats and reiterates the prior allegations of this complaint as if alleged more fully below: 39. Defendants knew, or with reasonable diligence should have known and/or ascertained, that their asbestos products were inherently dangerous and hazardous to the health and well-being of those using, exposed to or coming in contact with Defendants’ asbestos products. 40. Defendants knew, or with reasonable diligence should have known and/or ascertained, that the reasonable and anticipated use of, exposure to or contact with their asbestos products would cause the release of asbestos fibers and dust into the ambient air, creating danger - 16 - 16 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 and unreasonable risk of injury and harm to those breathing the air contaminated with such asbestos fibers and dust. 41. Defendants knew, or with reasonable diligence should have known and/or ascertained, that the Plaintiff would use or come into contact with Defendants’ asbestos products and in so doing, would become exposed to and inhale and ingest the asbestos fibers and dust in the ambient air as they were discharged and released from the Defendants’ products in the course of ordinary and foreseeable contact, application and use of those products. 42. Defendants knew, or with reasonable diligence should have known and/or ascertained that the Plaintiff used, came into contact with, and was exposed to Defendants’ asbestos products and the fibers and dust emanating from and released by those products without any knowledge of the dangers and potential risk of harm to which he was being exposed. 43. Despite knowledge of the unsafe and dangerous nature and properties of their respective asbestos products, the Defendants willfully, recklessly and negligently: (a) failed to warn the public at large, and more particularly this Plaintiff, of the dangers and hazards associated with or caused by the use of, exposure to or contact with Defendants’ asbestos products resulting from the ordinary, anticipated and foreseeable use of Defendants’ asbestos products; (b) failed to study, investigate and/or properly test their asbestos products for both potential and actual hazards associated with the use of, exposure to and contact with Defendants’ asbestos products, when such products were used in a reasonably foreseeable and anticipated manner; (c) failed to communicate or convey their suspicions and knowledge with respect to potential or actual dangers and health hazards associated with the use of, exposure to - 17 - 17 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 or contact with Defendants’ asbestos products resulting in inhalation and ingestion of asbestos fibers and dust to the users and consumers of the Defendants’ asbestos products; (d) failed to design or redesign Defendants’ asbestos products to prevent, impede or minimize the release of airborne inhalable and ingestible asbestos fibers and dust; (e) failed to properly design and manufacture Defendants’ asbestos products to insure safe use and handling by users and consumers under conditions that were reasonably anticipated and foreseeable; (f) failed to advise the public at large, and more particularly this Plaintiff, of the necessity for protective garments, safety equipment and appliances to protect the user/consumer from harm caused by inhalation and ingestion of asbestos fibers and dust released by, and associated with, the ordinary and foreseeable use of, and contact with, Defendants’ asbestos products; (g) failed to institute, adopt or enforce appropriate safety protocols for handling and use of asbestos products to individuals working with, utilizing, handling or otherwise coming into contact with Defendants’ asbestos products; (h) failed to adequately package their respective asbestos products in a manner which would insure safe handling and use by those individuals, including this Plaintiff, who the Defendants’ knew or should have reasonably anticipated would be exposed to asbestos fibers and dust released by and associated with the ordinary and foreseeable use of Defendants’ asbestos products; (i) failed to remove their asbestos products from the stream of commerce despite knowledge of the unsafe and dangerous nature of those products; - 18 - 18 of 43 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/22/2024 FILED: NIAGARA COUNTY CLERK 04/12/2021 11:59 AM INDEX NO. E174717/2021 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/12/2021 (j) continued to mine, produce, process, design, manufacture, market, supply, deliver, distribute, install, use, purchase, remove and sell asbestos products for general application and purposes without any alteration or change, despite the potential and known health hazards and dangers posed to the foreseeable and anticipated user and consumer of those products; (k) failed to timely develop and utilize substitute materials for asbestos in their asbestos products; (l) failed to design or redesign asbestos-containing products to prevent, impede or minimize the release of airborne inhalable and ingestible asbestos fibers and dust; and, (m) failed to recall and/or issue a post-sale warning for their asbestos products. 44. The continued mining, production, processing, design, manufacture, marketing, distribution, supply, use, purchase, installation, removal, delivery, and sale by the Defendants’ of their respective asbestos products under the circumstances and conditions enumerated above, demonstrates the callous, reckless, willful, depraved and wanton indifference to and disregard of the health, safety and welfare of the public at large, and more particularly, this Plaintiff. 45. As a result of the Defendants’ negligence and recklessness, the Plaintiff unwittingly and unavoidably inhaled and ingested asbestos fibers and dust, resulting in the development of his asbestos related disease and illness; Plaintiff has been caused to endure severe physical pain and suffering and mental anguish; has been placed at increased risk for developing oth