On September 01, 2015 a
Answer
was filed
involving a dispute between
Shirley Godfrey,
Shirley Jo Godfrey As Executrix Of The Estate Of Robert C. Godfrey,
and
Algoma Hardwoods, Inc.,
American Biltrite, Inc., Individually And As Successor To Amtico Floors,
A.O. Smith Water Products,
Basic, Inc.,
Bird Incorporated F K A Bird & Son, Inc.,
Borg Warner Corporation, By Its Successor In Interest, Borg Warner Morse Tec Inc.,
Burnham Corporation,
Carrier Corporation,
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,
Certain-Teed Corporation,
Cleaver Brooks Company F K A Aqua Chem, Inc.,
Conwed Corporation F K A Wood Conversion Company,
Crane Co.,
Crown Boiler Co.,
Dap, Inc., K N A La Mirada Products Co., Inc.,
Domco Products Texas, Inc., D B A Tarkett Inc., Individually And As Successor To Azrock Industries, Inc.,
Ecr International, Inc., Individually And As Successor To Dunkirk, Dunkirk Boilers, And Utica Boilers,
General Electric Company,
Georgia-Pacific Corporation, Individually And As Successor To Bestwall Gypsum Company,
Homasote Company, Inc.,
Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor In Interest To The Bendix Corp.,
International Paper Company, F K A Hammermill Paper Co. And Individually And As Successor To Us Plywood,
Kaiser Gypsum Company, Inc.,
Lehrer Mcgovern Lehrer Llc,
Mannington Mills, Inc.,
Metropolitan Life Insurance Company,
New Yorker Boiler Company, Inc.,
Peerless Industries, Inc.,
Pfizer, Inc.,
Rheem Manufacturing Corp.,
Strober Organization, Inc.,
Turner Construction Company,
Union Carbide Corporation,
Weil Mclain, A Division Of Marley Wylain Company,
Weyerhauser Corporation,
Whiting Turner,
York International Corporation, Individually And As Successor To Frick Company,
for Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 09/23/2015 01:26 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/23/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------X
ROBERT GODFREY and SHIRLEY GODFREY, Index No.: 190280/15
Plaintiffs, VERIFIED ANSWER WITH
AFFIRMATIVE DEFENSES
-against- AND CROSS-CLAIMS
A.O. SMITH WATER PRODUCTS CO., et al.,
Defendants.
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Defendant, MANNINGTON MILLS, INC. (hereinafter “MANNINGTON MILLS”), by
its attorneys, Segal McCambridge Singer & Mahoney, Ltd., for its Answer to Plaintiffs’ Verified
Complaint, alleges the following upon information and belief:
1. Denies all material allegations in Plaintiffs’ Complaint as they pertain to
Mannington Mills, Inc.
2. Denies knowledge or information sufficient to form a belief as to the truth of each
and every other allegation contained in Plaintiffs’ Complaint.
WHEREFORE, Defendant Mannington Mills, Inc. demands dismissal of the Complaint
and any and all Cross-Claims with prejudice.
AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE
The Complaint fails to state a cause of action against Defendant.
AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE
This Court lacks jurisdiction over the subject matter of this action.
AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE
This Court lacks personal jurisdiction over Defendant.
1
AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE
The lawsuit was not commenced by plaintiff within the time prescribed by law and the
plaintiff, therefore, is barred from recovery pursuant to applicable statutes of limitations.
AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE
The claims of plaintiff are barred by the doctrine of laches.
AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE
The damages allegedly sustained by plaintiff were caused, in whole or in part, by the
negligence or other culpable conduct of plaintiff and/or other defendants, which conduct
constituted a supervening cause of Plaintiffs’ alleged injuries.
AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE
Insofar as the Complaint and each cause of action considered separately allege a cause of
action occurring after September 1, 1975, each such cause of action is barred by reason of the
culpable conduct attributable to plaintiff, including contributory negligence and assumption of
the risk.
AS AND FOR AN EIGHTH SEPARATE AND COMPLETE DEFENSE
Any damages allegedly sustained by the plaintiff were the proximate result of an
unforeseen occurrence and/or unforeseeable negligence, gross negligence, wanton, reckless or
intentional conduct constituting an intervening or superseding act or omission or other conduct
by third parties.
AS AND FOR A NINTH SEPARATE AND COMPLETE DEFENSE
The damages allegedly sustained by plaintiff were caused, in whole or in part, by the
negligence or other culpable conduct of one or more persons or instrumentalities over which
Defendant had no control and with whom it had no legal relationship.
2
AS AND FOR AN TENTH SEPARATE AND COMPLETE DEFENSE
The damages allegedly sustained by plaintiff were caused, in whole or in part, through
unavoidable natural consequences.
AS AND FOR A ELEVENTH SEPARATE AND COMPLETE DEFENSE
If the plaintiff sustained damages as alleged, such damages occurred while they engaged
in activities into which they entered, knowing the hazard, risk and danger of the activities and
they assumed the risks incidental to and attendant to the activities.
AS AND FOR AN TWELFTH SEPARATE AND COMPLETE DEFENSE
All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31,
1986) are time-barred in that said statute is in violation of the Constitution of the United States
and the Constitution of the State of New York.
AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE DEFENSE
This action cannot be maintained, as there is another action pending for the same relief.
AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE DEFENSE
To the extent that any injury relating to plaintiff occurred in the context of an employer-
employee relationship, claims for said injuries are preempted by the Workers’ Compensation
Act.
AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE DEFENSE
No acts or omissions of Defendant proximately caused Plaintiffs’ damages.
AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE DEFENSE
Any asbestos-containing product of or used in conjunction with products sold by
Defendant that may have been present at Plaintiffs’ job locations were installed or configured on
the basis of the specifications, approval or at the instruction of governmental or legislative
agencies or other regulatory bodies.
3
AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE DEFENSE
The damages sustained by plaintiff arising from their alleged exposure to asbestos-
containing products while working on or near the equipment or other product allegedly
manufactured or sold by Defendant (the “Product”), were caused, in whole or in part, by the
improper use and operation of the Product, rather than any defect in the design, manufacture,
production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
of the Product by Defendant.
AS AND FOR A EIGHTEENTH SEPARATE AND COMPLETE DEFENSE
The damages sustained by the plaintiff which allegedly arose from the Product were
caused by its alteration, misuse and/or improper maintenance by one or more persons or
instrumentalities other than Defendant, rather than any defect in the design, manufacture,
production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
of the Product by Defendant.
AS AND FOR AN NINETEENTH SEPARATE AND COMPLETE DEFENSE
Defendant is not liable for the damages allegedly sustained by plaintiff because plaintiff
is not in privity of contract with Defendant at any time and the Product was not inherently
dangerous.
AS AND FOR A TWENTIETH SEPARATE AND COMPLETE DEFENSE
The Product was in all respects fit and suitable for its intended and reasonably
foreseeable uses and was not in a defective or dangerous condition when it left Defendant’s
possession and control.
AS AND FOR A TWENTY-FIRST SEPARATE AND COMPLETE DEFENSE
No implied warranties, including the warranties of merchantability and fitness for a
particular purpose, became a part of the basis of the bargain in the sale of the Product.
4
AS AND FOR A TWENTY-SECOND SEPARATE AND COMPLETE DEFENSE
Oral warranties upon which plaintiff allegedly relied are unavailable as violative of the
provisions of the applicable Statute of Frauds.
AS AND FOR A TWENTY-THIRD SEPARATE AND COMPLETE DEFENSE
To the extent that plaintiff sustained injuries from the use of a product sold by Defendant
that is alleged to have contained asbestos, which is denied, plaintiff, Plaintiffs’ decedents, other
defendants or other parties not under the control of Defendant misused, abused, misapplied and
otherwise mishandled the part of the product alleged to have been asbestos material. Therefore,
the amount of damages must be diminished by the proportion, which said misuse, abuse,
misapplication and mishandling bears to the conduct, which allegedly caused Plaintiffs’ damage
or injury.
AS AND FOR A TWENTY-FOURTH SEPARATE AND COMPLETE DEFENSE
In the event it should be proven at the time of trial that all the defendants are subject to
market share liability, then Defendant’s share of such liability would be of such a de minimis
amount as to make its contribution for damages negligible, and Defendant would be entitled to
contribution, either in whole or in part, from co-defendants.
AS AND FOR A TWENTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Defendant denies that the asbestos products alleged in Plaintiffs’ Complaint are products
within the meaning and scope of the Restatement of Torts Section 402A and as such the Verified
Complaint fails to state a cause of action in strict liability.
AS AND FOR A TWENTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Defendant had no knowledge or reason to know of any alleged risks associated with
asbestos and/or asbestos-containing products at the time of sale or at any other time during
Plaintiffs’ alleged exposure.
5
AS AND FOR A TWENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff did not directly or indirectly purchase any asbestos-containing products from
Defendant and, therefore, was not the recipient of an express or implied warranty made by
Defendant.
AS AND FOR A TWENTY-EIGHT SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff was exposed to any product containing asbestos as a result of
conduct by Defendant, which is denied, said exposure was de minimis and not a substantial
contributing factor to any asbestos-related disease which plaintiff may have developed, such that
Plaintiffs’ claim is not actionable at law or equity.
AS AND FOR A TWENTY-NINTH SEPARATE AND COMPLETE DEFENSE
Exposure to asbestos fibers allegedly attributable to Defendant was so de minimis so as to
be insufficient as a matter of law to enable plaintiff to establish to a reasonable degree of
probability that the Products are capable of causing injury or damages and must be considered
speculative as a matter of law.
AS AND FOR A THIRTIETH SEPARATE AND COMPLETE DEFENSE
Finished or otherwise encapsulated asbestos-containing products are not unreasonably
dangerous as a matter of law.
AS AND FOR A THIRTY-FIRST SEPARATE AND COMPLETE DEFENSE
If Defendant was on notice of any hazard or defect for which plaintiff seeks relief, which
Defendant denies, plaintiff also had such notice of the existing hazard at or about the same time
as Defendant, and is thereby is barred from recovery.
AS AND FOR A THIRTY-SECOND SEPARATE AND COMPLETE DEFENSE
There is no justiciable issue or controversy.
6
AS AND FOR A THIRTY-THIRD SEPARATE AND COMPLETE DEFENSE
The claims for damages have not accrued, are purely speculative, uncertain and
contingent.
AS AND FOR A THIRTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Plaintiffs’ claim is barred under applicable state and federal law.
AS AND FOR A THIRTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Plaintiff voluntarily assumed the risk of injury.
AS AND FOR A THIRTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Plaintiffs’ injury was not foreseeable.
AS AND FOR A THIRTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Defendant was under no duty to warn purchasers, their employees, other independent
contractors, or those under their control. If such warning was required, purchaser or Plaintiffs’
employer owed a duty to warn and their failure to do so was a superseding proximate cause of
injury.
AS AND FOR A THIRTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
Plaintiff were warned of risk of exposure to use of asbestos-containing materials and
failed to take necessary or recommended precautions to prevent against the risk of injury.
AS AND FOR A THIRTY-NINTH SEPARATE AND COMPLETE DEFENSE
Plaintiffs’ claims are barred under applicable law pursuant to public policy, since social
utility and benefit of asbestos-containing products outweighed the risk at the time of Plaintiffs’
alleged exposure.
AS AND FOR A FORTIETH SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff seeks to maintain a claim for relief on behalf of any decedent, said
plaintiff lacks capacity and/or standing to maintain such claim for relief against Defendant.
7
AS AND FOR A FORTY-FIRST SEPARATE AND COMPLETE DEFENSE
Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
indispensable parties.
AS AND FOR A FORTY-SECOND SEPARATE AND COMPLETE DEFENSE
Plaintiff may not bring this action as they have failed to exhaust all of their administrative
remedies.
AS AND FOR A FORTY-THIRD SEPARATE AND COMPLETE DEFENSE
Plaintiff and/or Plaintiffs’ decedents failed to mitigate or otherwise act to lessen or reduce
the injuries alleged in the Verified Complaint.
AS AND FOR A FORTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Plaintiffs’ cause of action for exemplary or punitive damages is barred because such
damages are not recoverable under applicable law or otherwise unwarranted in this action.
AS AND FOR A FORTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Plaintiffs’ demands for punitive damages are barred by the due process clauses of the
Fourteenth Amendment to the United States Constitution and the New York State Constitution.
AS AND FOR A FORTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Plaintiffs’ demands for punitive damages are barred by the proscription of the Eighth
Amendment to the United States Constitution, as applied to the states through the Fourteenth
Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the
imposition of excessive fines.
AS AND FOR A FORTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Plaintiffs’ demands for punitive damages are barred by the “double jeopardy” clause of
the Fifth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
8
AS AND FOR A FORTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
If plaintiff sustained injuries in the manner alleged, all of which has been denied by
Defendant, the liability of Defendant, if any, shall be limited in accordance with Article 16 of the
Civil Practice Law and Rules.
AS AND FOR A FORTY-NINTH SEPARATE AND COMPLETE DEFENSE
At all times relevant to this litigation, Defendant complied with all applicable law,
regulations and standards.
AS AND FOR A FIFTIETH SEPARATE AND COMPLETE DEFENSE
Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and waiver.
AS AND FOR A FIFTY-FIRST SEPARATE AND COMPLETE DEFENSE
That at all times relevant to this litigation, the agents, servants and/or employees of
Defendant utilized proper methods in the conduct of its operations, in conformity with the
available knowledge and research of the scientific and industrial communities, and thereby
complied with the state of the art existing at all relevant times.
AS AND FOR A FIFTY-SECOND SEPARATE AND COMPLETE DEFENSE
Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use of
tobacco products and/or other substances, products, medications or drugs.
AS AND FOR A FIFTY-THIRD SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of arbitration and award.
AS AND FOR A FIFTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of discharge in bankruptcy.
9
AS AND FOR A FIFTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of payment.
AS AND FOR A FIFTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of release.
AS AND FOR A FIFTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of res judicata.
AS AND FOR A FIFTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
All defenses which have been or will be asserted by other defendants and/or any third-
party defendants in this action are adopted and incorporated by reference as if fully set forth at
length herein as defenses to Plaintiffs’ Verified 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 the
purposes of asserting any such additional defenses.
AS AND FOR A FIFTY-NINTH SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff brings suit in a representative capacity, such plaintiff has failed to
allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers
and Trusts Law §5-1.1 to 5-4.6.
AS AND FOR A SIXTIETH SEPARATE AND COMPLETE DEFENSE
This Court lacks jurisdiction over Defendant by reason of improper service of process.
AS AND FOR A SIXTY-FIRST SEPARATE AND COMPETE DEFENSE
Any alleged liability of Defendant must be reduced by operation of GOL § 15-108.
10
AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS FOR
INDEMNIFICATION
1. Defendant alleges that if Plaintiffs are able to prove the existence and cause of
any injuries as alleged in Plaintiffs’ Complaint, such injuries were caused solely as a result of the
negligence, carelessness, recklessness, strict liability, breach of warranty, breach of contract or
other agreements and/or affirmative acts of one or more of the Co-Defendants in this matter and
was not due to any culpable conduct by Defendant.
2. If Plaintiffs recover judgment and/or verdict against Defendant, such recovery
will have come about solely due to the negligence, carelessness, recklessness, strict liability,
breach of contract or other agreements and/or affirmative acts of the Co-Defendants, as stated
above, and not due to any culpable conduct on the part of Defendant.
3. Co-Defendants are liable to Defendant, for indemnification under common law
and/or contract or other agreements for any and all of the judgment and/or verdict that the
Plaintiffs may recover from this Defendant.
AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS FOR
CONTRIBUTION
If Plaintiffs recover judgment and/or verdict from the Defendant, Defendant will be
entitled to contribution from Co-Defendants for all or part of the damages the Plaintiffs may
recover against Defendant.
ANSWERS TO ALL CROSS-CLAIMS
Defendant answers all cross-claims of co-defendants, saying:
All cross-claims for contribution alleged are denied.
All cross-claims for indemnification alleged are denied.
WHEREFORE, defendant Mannington Mills, Inc. requests judgment in its favor
dismissing the Verified Complaint, judgment in its favor and against all co-defendants for all or
11
part of any sum awarded in favor of the plaintiff and against Defendant and for such other and
further relief as the Court may deem just and proper.
Dated: New York, New York
September 23, 2015
Segal McCambridge Singer & Mahoney, Ltd.
Attorneys for Defendant Mannington Mills, Inc.
By: s/Katrina H. Murphy
Katrina H. Murphy, Esq.
850 Third Avenue, 11th Floor
New York, New York 10022
(212) 651-7500
12
VERIFICATION
Katrina H. Murphy, an attorney duly admitted to practice in the Courts of the State of
New York, and designated as attorney for the defendant Mannington Mills, Inc. (hereinafter
“Defendant”), affirms the following statements to be true under the penalties of perjury pursuant
to Rule 2106 of the CPLR:
That she has read the foregoing Answer and knows the contents thereof; that the same is
true to her own knowledge, except as to the matters therein stated to be alleged upon information
and belief, and that as to those matters she believes them to be true.
Affiant further says that the source of her information and the grounds of her belief are
derived from the files, books and records maintained in the normal course of business of the Law
Offices of Segal McCambridge Singer & Mahoney, Ltd. and statements made to her by officers
or agents of Defendant.
This Verification is made by affiant and not by defendant because defendant resides
outside the County of New York where affiant maintains her office.
Dated: New York, New York
September 23, 2015
s/ Katrina H. Murphy
Katrina H. Murphy
13
Preview
FILED: NEW YORK COUNTY CLERK 09/23/2015 01:26 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 09/23/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X ROBERT GODFREY and SHIRLEY GODFREY, Index No.: 190280/15 Plaintiffs, VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES -against- AND CROSS-CLAIMS A.O. SMITH WATER PRODUCTS CO., et al., Defendants. -------------------------------------------------------------------X Defendant, MANNINGTON MILLS, INC. (hereinafter “MANNINGTON MILLS”), by its attorneys, Segal McCambridge Singer & Mahoney, Ltd., for its Answer to Plaintiffs’ Verified Complaint, alleges the following upon information and belief: 1. Denies all material allegations in Plaintiffs’ Complaint as they pertain to Mannington Mills, Inc. 2. Denies knowledge or information sufficient to form a belief as to the truth of each and every other allegation contained in Plaintiffs’ Complaint. WHEREFORE, Defendant Mannington Mills, Inc. demands dismissal of the Complaint and any and all Cross-Claims with prejudice. AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE The Complaint fails to state a cause of action against Defendant. AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE This Court lacks jurisdiction over the subject matter of this action. AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE This Court lacks personal jurisdiction over Defendant. 1 AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE The lawsuit was not commenced by plaintiff within the time prescribed by law and the plaintiff, therefore, is barred from recovery pursuant to applicable statutes of limitations. AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE The claims of plaintiff are barred by the doctrine of laches. AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE The damages allegedly sustained by plaintiff were caused, in whole or in part, by the negligence or other culpable conduct of plaintiff and/or other defendants, which conduct constituted a supervening cause of Plaintiffs’ alleged injuries. AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE Insofar as the Complaint and each cause of action considered separately allege a cause of action occurring after September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to plaintiff, including contributory negligence and assumption of the risk. AS AND FOR AN EIGHTH SEPARATE AND COMPLETE DEFENSE Any damages allegedly sustained by the plaintiff were the proximate result of an unforeseen occurrence and/or unforeseeable negligence, gross negligence, wanton, reckless or intentional conduct constituting an intervening or superseding act or omission or other conduct by third parties. AS AND FOR A NINTH SEPARATE AND COMPLETE DEFENSE The damages allegedly sustained by plaintiff were caused, in whole or in part, by the negligence or other culpable conduct of one or more persons or instrumentalities over which Defendant had no control and with whom it had no legal relationship. 2 AS AND FOR AN TENTH SEPARATE AND COMPLETE DEFENSE The damages allegedly sustained by plaintiff were caused, in whole or in part, through unavoidable natural consequences. AS AND FOR A ELEVENTH SEPARATE AND COMPLETE DEFENSE If the plaintiff sustained damages as alleged, such damages occurred while they engaged in activities into which they entered, knowing the hazard, risk and danger of the activities and they assumed the risks incidental to and attendant to the activities. AS AND FOR AN TWELFTH SEPARATE AND COMPLETE DEFENSE All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE DEFENSE This action cannot be maintained, as there is another action pending for the same relief. AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE DEFENSE To the extent that any injury relating to plaintiff occurred in the context of an employer- employee relationship, claims for said injuries are preempted by the Workers’ Compensation Act. AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE DEFENSE No acts or omissions of Defendant proximately caused Plaintiffs’ damages. AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE DEFENSE Any asbestos-containing product of or used in conjunction with products sold by Defendant that may have been present at Plaintiffs’ job locations were installed or configured on the basis of the specifications, approval or at the instruction of governmental or legislative agencies or other regulatory bodies. 3 AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE DEFENSE The damages sustained by plaintiff arising from their alleged exposure to asbestos- containing products while working on or near the equipment or other product allegedly manufactured or sold by Defendant (the “Product”), were caused, in whole or in part, by the improper use and operation of the Product, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Product by Defendant. AS AND FOR A EIGHTEENTH SEPARATE AND COMPLETE DEFENSE The damages sustained by the plaintiff which allegedly arose from the Product were caused by its alteration, misuse and/or improper maintenance by one or more persons or instrumentalities other than Defendant, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Product by Defendant. AS AND FOR AN NINETEENTH SEPARATE AND COMPLETE DEFENSE Defendant is not liable for the damages allegedly sustained by plaintiff because plaintiff is not in privity of contract with Defendant at any time and the Product was not inherently dangerous. AS AND FOR A TWENTIETH SEPARATE AND COMPLETE DEFENSE The Product was in all respects fit and suitable for its intended and reasonably foreseeable uses and was not in a defective or dangerous condition when it left Defendant’s possession and control. AS AND FOR A TWENTY-FIRST SEPARATE AND COMPLETE DEFENSE No implied warranties, including the warranties of merchantability and fitness for a particular purpose, became a part of the basis of the bargain in the sale of the Product. 4 AS AND FOR A TWENTY-SECOND SEPARATE AND COMPLETE DEFENSE Oral warranties upon which plaintiff allegedly relied are unavailable as violative of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-THIRD SEPARATE AND COMPLETE DEFENSE To the extent that plaintiff sustained injuries from the use of a product sold by Defendant that is alleged to have contained asbestos, which is denied, plaintiff, Plaintiffs’ decedents, other defendants or other parties not under the control of Defendant misused, abused, misapplied and otherwise mishandled the part of the product alleged to have been asbestos material. Therefore, the amount of damages must be diminished by the proportion, which said misuse, abuse, misapplication and mishandling bears to the conduct, which allegedly caused Plaintiffs’ damage or injury. AS AND FOR A TWENTY-FOURTH SEPARATE AND COMPLETE DEFENSE In the event it should be proven at the time of trial that all the defendants are subject to market share liability, then Defendant’s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and Defendant would be entitled to contribution, either in whole or in part, from co-defendants. AS AND FOR A TWENTY-FIFTH SEPARATE AND COMPLETE DEFENSE Defendant denies that the asbestos products alleged in Plaintiffs’ Complaint are products within the meaning and scope of the Restatement of Torts Section 402A and as such the Verified Complaint fails to state a cause of action in strict liability. AS AND FOR A TWENTY-SIXTH SEPARATE AND COMPLETE DEFENSE Defendant had no knowledge or reason to know of any alleged risks associated with asbestos and/or asbestos-containing products at the time of sale or at any other time during Plaintiffs’ alleged exposure. 5 AS AND FOR A TWENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Plaintiff did not directly or indirectly purchase any asbestos-containing products from Defendant and, therefore, was not the recipient of an express or implied warranty made by Defendant. AS AND FOR A TWENTY-EIGHT SEPARATE AND COMPLETE DEFENSE To the extent plaintiff was exposed to any product containing asbestos as a result of conduct by Defendant, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which plaintiff may have developed, such that Plaintiffs’ claim is not actionable at law or equity. AS AND FOR A TWENTY-NINTH SEPARATE AND COMPLETE DEFENSE Exposure to asbestos fibers allegedly attributable to Defendant was so de minimis so as to be insufficient as a matter of law to enable plaintiff to establish to a reasonable degree of probability that the Products are capable of causing injury or damages and must be considered speculative as a matter of law. AS AND FOR A THIRTIETH SEPARATE AND COMPLETE DEFENSE Finished or otherwise encapsulated asbestos-containing products are not unreasonably dangerous as a matter of law. AS AND FOR A THIRTY-FIRST SEPARATE AND COMPLETE DEFENSE If Defendant was on notice of any hazard or defect for which plaintiff seeks relief, which Defendant denies, plaintiff also had such notice of the existing hazard at or about the same time as Defendant, and is thereby is barred from recovery. AS AND FOR A THIRTY-SECOND SEPARATE AND COMPLETE DEFENSE There is no justiciable issue or controversy. 6 AS AND FOR A THIRTY-THIRD SEPARATE AND COMPLETE DEFENSE The claims for damages have not accrued, are purely speculative, uncertain and contingent. AS AND FOR A THIRTY-FOURTH SEPARATE AND COMPLETE DEFENSE Plaintiffs’ claim is barred under applicable state and federal law. AS AND FOR A THIRTY-FIFTH SEPARATE AND COMPLETE DEFENSE Plaintiff voluntarily assumed the risk of injury. AS AND FOR A THIRTY-SIXTH SEPARATE AND COMPLETE DEFENSE Plaintiffs’ injury was not foreseeable. AS AND FOR A THIRTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Defendant was under no duty to warn purchasers, their employees, other independent contractors, or those under their control. If such warning was required, purchaser or Plaintiffs’ employer owed a duty to warn and their failure to do so was a superseding proximate cause of injury. AS AND FOR A THIRTY-EIGHTH SEPARATE AND COMPLETE DEFENSE Plaintiff were warned of risk of exposure to use of asbestos-containing materials and failed to take necessary or recommended precautions to prevent against the risk of injury. AS AND FOR A THIRTY-NINTH SEPARATE AND COMPLETE DEFENSE Plaintiffs’ claims are barred under applicable law pursuant to public policy, since social utility and benefit of asbestos-containing products outweighed the risk at the time of Plaintiffs’ alleged exposure. AS AND FOR A FORTIETH SEPARATE AND COMPLETE DEFENSE To the extent plaintiff seeks to maintain a claim for relief on behalf of any decedent, said plaintiff lacks capacity and/or standing to maintain such claim for relief against Defendant. 7 AS AND FOR A FORTY-FIRST SEPARATE AND COMPLETE DEFENSE Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and indispensable parties. AS AND FOR A FORTY-SECOND SEPARATE AND COMPLETE DEFENSE Plaintiff may not bring this action as they have failed to exhaust all of their administrative remedies. AS AND FOR A FORTY-THIRD SEPARATE AND COMPLETE DEFENSE Plaintiff and/or Plaintiffs’ decedents failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the Verified Complaint. AS AND FOR A FORTY-FOURTH SEPARATE AND COMPLETE DEFENSE Plaintiffs’ cause of action for exemplary or punitive damages is barred because such damages are not recoverable under applicable law or otherwise unwarranted in this action. AS AND FOR A FORTY-FIFTH SEPARATE AND COMPLETE DEFENSE Plaintiffs’ demands for punitive damages are barred by the due process clauses of the Fourteenth Amendment to the United States Constitution and the New York State Constitution. AS AND FOR A FORTY-SIXTH SEPARATE AND COMPLETE DEFENSE Plaintiffs’ demands for punitive damages are barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. AS AND FOR A FORTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Plaintiffs’ demands for punitive damages are barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution. 8 AS AND FOR A FORTY-EIGHTH SEPARATE AND COMPLETE DEFENSE If plaintiff sustained injuries in the manner alleged, all of which has been denied by Defendant, the liability of Defendant, if any, shall be limited in accordance with Article 16 of the Civil Practice Law and Rules. AS AND FOR A FORTY-NINTH SEPARATE AND COMPLETE DEFENSE At all times relevant to this litigation, Defendant complied with all applicable law, regulations and standards. AS AND FOR A FIFTIETH SEPARATE AND COMPLETE DEFENSE Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and waiver. AS AND FOR A FIFTY-FIRST SEPARATE AND COMPLETE DEFENSE That at all times relevant to this litigation, the agents, servants and/or employees of Defendant utilized proper methods in the conduct of its operations, in conformity with the available knowledge and research of the scientific and industrial communities, and thereby complied with the state of the art existing at all relevant times. AS AND FOR A FIFTY-SECOND SEPARATE AND COMPLETE DEFENSE Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. AS AND FOR A FIFTY-THIRD SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of arbitration and award. AS AND FOR A FIFTY-FOURTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of discharge in bankruptcy. 9 AS AND FOR A FIFTY-FIFTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of payment. AS AND FOR A FIFTY-SIXTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of release. AS AND FOR A FIFTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of res judicata. AS AND FOR A FIFTY-EIGHTH SEPARATE AND COMPLETE DEFENSE All defenses which have been or will be asserted by other defendants and/or any third- party defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to Plaintiffs’ Verified 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 the purposes of asserting any such additional defenses. AS AND FOR A FIFTY-NINTH SEPARATE AND COMPLETE DEFENSE To the extent plaintiff brings suit in a representative capacity, such plaintiff has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and Trusts Law §5-1.1 to 5-4.6. AS AND FOR A SIXTIETH SEPARATE AND COMPLETE DEFENSE This Court lacks jurisdiction over Defendant by reason of improper service of process. AS AND FOR A SIXTY-FIRST SEPARATE AND COMPETE DEFENSE Any alleged liability of Defendant must be reduced by operation of GOL § 15-108. 10 AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS FOR INDEMNIFICATION 1. Defendant alleges that if Plaintiffs are able to prove the existence and cause of any injuries as alleged in Plaintiffs’ Complaint, such injuries were caused solely as a result of the negligence, carelessness, recklessness, strict liability, breach of warranty, breach of contract or other agreements and/or affirmative acts of one or more of the Co-Defendants in this matter and was not due to any culpable conduct by Defendant. 2. If Plaintiffs recover judgment and/or verdict against Defendant, such recovery will have come about solely due to the negligence, carelessness, recklessness, strict liability, breach of contract or other agreements and/or affirmative acts of the Co-Defendants, as stated above, and not due to any culpable conduct on the part of Defendant. 3. Co-Defendants are liable to Defendant, for indemnification under common law and/or contract or other agreements for any and all of the judgment and/or verdict that the Plaintiffs may recover from this Defendant. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS FOR CONTRIBUTION If Plaintiffs recover judgment and/or verdict from the Defendant, Defendant will be entitled to contribution from Co-Defendants for all or part of the damages the Plaintiffs may recover against Defendant. ANSWERS TO ALL CROSS-CLAIMS Defendant answers all cross-claims of co-defendants, saying: All cross-claims for contribution alleged are denied. All cross-claims for indemnification alleged are denied. WHEREFORE, defendant Mannington Mills, Inc. requests judgment in its favor dismissing the Verified Complaint, judgment in its favor and against all co-defendants for all or 11 part of any sum awarded in favor of the plaintiff and against Defendant and for such other and further relief as the Court may deem just and proper. Dated: New York, New York September 23, 2015 Segal McCambridge Singer & Mahoney, Ltd. Attorneys for Defendant Mannington Mills, Inc. By: s/Katrina H. Murphy Katrina H. Murphy, Esq. 850 Third Avenue, 11th Floor New York, New York 10022 (212) 651-7500 12 VERIFICATION Katrina H. Murphy, an attorney duly admitted to practice in the Courts of the State of New York, and designated as attorney for the defendant Mannington Mills, Inc. (hereinafter “Defendant”), affirms the following statements to be true under the penalties of perjury pursuant to Rule 2106 of the CPLR: That she has read the foregoing Answer and knows the contents thereof; that the same is true to her own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters she believes them to be true. Affiant further says that the source of her information and the grounds of her belief are derived from the files, books and records maintained in the normal course of business of the Law Offices of Segal McCambridge Singer & Mahoney, Ltd. and statements made to her by officers or agents of Defendant. This Verification is made by affiant and not by defendant because defendant resides outside the County of New York where affiant maintains her office. Dated: New York, New York September 23, 2015 s/ Katrina H. Murphy Katrina H. Murphy 13