Preview
FILED: NEW YORK COUNTY CLERK 10/27/2015 04:34 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2015
SI]PRtrME COURT OF TI{E STATI] OIì NEW YORK
COUNTY OF NEW YORK
X
ROBERT GODFREY and SHIRLEY GODFREY, VERIFIED ANSWER
Plaintiffs, Index No.: 19028012015
-against-
A.O. SMITH WATER PRODUCTS, et al.
INCLUDING STROBER ORGANIZATION, INC
Defendants.
X
Defendant, STROBER ORGANIZATION, INC., by its attorneys, MARKS, O'NBILL,
O'BRIEN, DOHERTY & KELLY, P.C., answering the Verified Complaint of the plaintifß
herein, respectfilly alleges upon information and belief:
THE PARTIES
l. STROBER ORGANIZATION, INC. denies any knowledge or information
661"
suflicient to form a belief as to the truth of each and every allegation contained in paragraphs
through 43Ð)ß5'' through '034" and "36" througho'42" of PlaintifÏs' Verified Complaint.
2. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraphs
(4", ß35" and'043" through o'50" of Plaintiffs' Verified Complaint.
AS AND FOR A FIRST CAUSE OF
ACTION SOUNDING IN NEGLIGEN Ctr
3, In response to paragraph o.51') of Plaintiffs' Verified Complaint, STROBER
OIÌGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
no1" through í50" of Plaintiffs' Verified Complaint heretofore made with the same force and effect
as if fully set forth at length herein.
4. STROBER ORGAI\IZATION, INC" denies each and every allegation contained in
paragraphs r'52" through 0059", including sub-paragraphs, of Plaintiffs'Verified Complaint.
{NY269984 r}
AS AND FOR A SBCOND CAUSB OF
ACTION SOUNDING IN BREACH OF'WARRANTY
5. In response to paragraph ((60)) of Plaintiffs' Verified Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
1659" of Plaintiffs' Verified Complaint heretofore made with the same force
"1" through and effect
as if fully set forth at length herein.
6. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraphs "6 1" throu gh " 6 4" of Plaintiffs' Verified Complaint.
AS AND FOR A THIRD CAUSE OF
ACTION SOUNDING IN STRICT LIABILITY
7. In response to paragraph (65)' of Plaintiffs' Verifìed Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
"1" through,o64" of Plaintiffs'Verified Complaint heretofore made with the same force and effect
as if fully set forth at length herein.
8. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraphs "6 6" throu gh " 7 4" of Plaintiffs' Verified Complaint.
AS AND FOR A FOURTH CAUSE OF
ACTION LABOR LAW VIOLATIONS
9. In response to paragraph ß75" of Plaintiffs' Verified Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
'r1" through474" of Plaintifß'Verified Complaint heretofore made with the same force and effect
as if fully set forth at length herein.
10. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraphs "76" through "93" , including sub-paragraphs, of Plaintiffs' Verified Complaint.
(NY269984, r)
AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DBFENDANT
METROPO ITAN I,IF'F], INSURANCE COMP ANY
11. In response to paragraph '(94') of Plaintiffs' Verified Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
r'1" through 6193" of Plaintiffs'Verifìed Complaint heretofore made with the same force and effect
as if fully set forlh at length herein.
12. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraphs "95" through "101" of Plaintiffs'Verified Complaint.
AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
COI,LECTIVE LIABILITY/CON CERT OF'ACTION
13, In response to paragraph ß102" of Plaintiffs' Verified Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
"1" through "101" of Plaintifß' Verified Complaint heretofore made with the same force and effect
as if fully set t-orth at length herein.
14. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraphs ú(103" through "117" , including sub-paragraphs, of Plaintiffs' Verified Complaint.
AS AND FOR A SEVENTH CAUSE OF ACTION
AINST DEFENDANT
15. In response to paragraph "118" of Plaintiffs' Verified Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
n'1" through of Plaintiffs' Verified Complaint heretofore made with the same force and effect
"117"
as if fully set forth at length herein.
16. STROBER ORGANIZATION, INC" denies any knowledge or information
sufficient to form a belief as to the truth of each and every allegation contained in paragraph "119"
of Plaintiffs' Verifi ed Complaint.
{NY269984, r}
17. STROBBI{ ORGANIZATION, INC. denies each and every allegation contained in
paragraphs Kl20'r through ((l3I') of Plaintiffs' Verified Complaint.
AS ANÐ FOR AN EIGHTH CAUSE OF ACTION
FOR PRBMISBS LIABILITY AG INST CERTAIN DEF'ENDANTS
18. In response to paragraph "132" of Plaintiffs' Verified Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
r'1" through "131" of Plaintiffs' Verified Complaint heretofore made with the same force and effect
as if fully set forth at length herein.
19. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraphs ß133'' through o'1470' of Plaintiffs' Verified Complaint.
AS AND FOR A NINTH CAUSB OF ACTION
INT AND SEVERAL LIAB
20. In response to paragraph "148" of Plaintiffs' Verified Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
"1" through "147" of Plaintiffs' Verified Complaint heretofore made with the same force and effect
as if fully set forth at length herein.
2I. STROBER ORGANIZATION, INC. denies each and every allegation contained in
ß148') (160') of Plaintifïs' Verified Complaint,
paragraphs through
AS AND FOR A TENTÍI CAUSE OF ACTION
PUNITIVB DAMAGES
22. In response to paragraph "161'o of Plaintiffs' Verifìed Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
o'1" through o'160" of Plaintiffs' Verified Complaint heretofore made with the same force and effect
as if fully set forth at length herein.
23. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraph 66162" of Plaintiffs' Verified Complaint.
{NY269984 l)
AS AND FOR AI{ ELEVEI\TH CAUSE OF ACTION
SPOUSAL LOSS OF CONSORTIUM
24. In response to paragraph oo163'o of Plaintiffs' Verified Complaint, STROBER
ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs
"1" through "162" of Plaintiffs' Verified Complaint heretofore made with the same force and effect
as i1'fully set forth at length herein.
25. STROBER ORGANIZATION, INC. denies each and every allegation contained in
paragraphs ('164" and "165"of Plaintiffs' Verified Complaint.
FIRST AFFIRMATIVE DEFBNSE
26. Plaintiffs' claims are barred by the applicable statute of limitations.
SECOND AFFIRMATIVE DEFENSE
27 . This Court lacks jurisdiction over the subject matter of this action.
THIRI) TIVE DEF'ENSE,
28. Plaintiffs failed to properly serve STROBER ORGANIZATION, INC. with its
Verified Complaint.
FOURTH ATIVtr DEF'ENSR,
29. STROBER ORGANIZATION, INC. gave, made or otherwise extended no
warranties, whether express or implied, upon which plaintifß had a right to rely
FIFTH AFFIRMATIVE DEFENSE
30. STROBER ORGANIZATION, INC. breached no warranties, whether express or
implied
INY269984 l )
SIXTH AFFIRMATIVE DEFENSE
31. Any injuries sustained by plaintiffs, as alleged in Plaintiffs' Verified Complaint, were
caused in whole or in part by the contributory and/or culpable conduct of said plaintiffs and not as a
result of any contributory negligence and/or culpable conduct of this answering defendant,
SEVENTH AFFIRMATIVE DEFENSE
32. The matters that are the subject of Plaintiffs' Verified Complaint are attributable to
third parties over whom STROBER ORGANIZATION, INC. had neither control nor right of
control.
EIGHTH AFFIRMATIVE D R,F'trNSE
33. While denying the allegations of the plaintiffs with respect to liability, injury and
damages, to the extent that plaintiffs may be able to prove the same, they were the result of
intervening acts or superseding negligence on the part of parties over whom STROBER
ORGANIZATION, INC. had neither control nor right of control.
NINTH AFFIRMATIVE DEFENSE
34. The doctrine of strict liability in torl is inapplicable to this litigation.
TENTH AFFIRMATIVE DEFENSB
35. STROBER ORGANIZATION, INC. denies that the asbestos-containing products
alleged in Plaintiffs' Verified Complaint are products within the meaning and scope of the
Restatement of Tor1s, Section 4021' and as such, the Complaints fails to state a cause of action in
strict liability.
{NY269984 l}
ELEVENTH ATIVE DEF'F],NSE
36. There being no privity of contract between STROBER ORGANIZATION' INL.
and the plaintiffs, there can be no cause of action against STROBER ORGANIZATION' INC. for
alleged breach of warranties.
TWELFTH AFFIRMATIVE DEFENSE
37. To the extent the allegations in Plaintiffs' Verified Complaint may be deemed to be
directed or related to STROBER ORGANIZATION, INC., the substance, product or equipment
allegedly produced, manufactured, processed, sold, supplied andlor distributed by STROBBR
ORGANIZATION, INC. was not used for the purpose for which it was intended, and/or was
misused by the plaintiffs.
THIRTEENTH MATIVR, DFJ,FENSE
38. Plaintiffs' claims against STROBER ORGANIZATION, INC. are barred by the
doctrine of assumption of the risk.
FOT]RTEENTH AFF DEF'F)NSE
39. While denying the allegations of plaintiffs with respect to liability, to the extent that
plaintiffs may be able to prove negligence or improper conduct, the acts of STROBER
ORGANIZATION, II\C. were not a proximate cause of any injuries to plaintiffs.
AFFIRMATIVB DEFEN
40. Since plaintiffs are unable to identify the manufacturers of the substance, product or
equipment which allegedly caused injury to plaintiffs, plaintiffs fail to state a claim upon which
relief may be granted since, if such relief were granted, it would deprive STROBBIT
{NY269984 1)
OIìGANIZATION, INC. of its constitutional rights to substantive and procedural due process of
law and equal protection under the law as guaranteed by the Fourteenth Amendment to the
Constitution of the United States.
SIXTEENTH AFFIRMATIVE DBFENSE
41. The causes of action asserted herein by plaintiffs, who admittedly is unable to identify
the manufacturer of the alleged injury-causing product, fail to state a claim upon which relief can be
granted, in that plaintiffs have asserted claims for relief which, if granted, would constitute a taking
of private property for public use, without just compensation. Such a taking would contravene
STROBBR ORGANIZATION, INC.'s constitutional rights as preserved for it by the Fourteenth
Amendment to the Constitution of the United States.
SBVENTEENTH AFFIRMATIVE DEFENSB
42. Any exposure that plaintiffs claim to this defendant's products or equipment, which
exposure is vigorously denied, was so minimal as to be insufficient to establish a reasonable degree
of probability that the products or equipment caused the claimed injuries and illness.
EIGHTEENTH MATIVE DF],F'IINSE,
43. The delay of the plaintiffs in commencing suit is inexcusable and has resulted rn
prejudice to STROBER ORGANIZATION, INC., and the equitable doctrine of laches bars
Plaintiffs' claims.
NINETEBNTH AFFIRMATIVB DEFENSE
44. Upon information and beliet plaintiffs failed to mitigate or otherwise act to lessen or
reduce the injuries and disabilities alleged in Plaintiffs' Verified Complaint.
{NY269984, r}
T\A/EI\TIBTH AFFIRMATIVE DEFENSE
45. To the extent that STROBER ORGANIZATION, INC. conformed to the scientific
knowiedge and research data available throughout the industry and scientific community,
STROBER ORGANIZATION, INC. has fulfilled its obligations, if any, herein, and Plaintiffs'
claims should be barred, in whole or in parl.
TWBNTY-FIRST AFFIRMATIVE DEFENSE
46. To the extent that plaintifïs allege rights hereunder assertedly derived from oral
warranties or undertakings on the part of STROBER ORGANIZATION, INC., Plaintiffs' Verified
Complaint is barred by the applicable Statute of Frauds.
TWENTY-SE COND AF' FIRMATIVE DEFBNSE
47. To the extent that the claims pleaded by plaintifTs fail to accord with the Uniform
Commercial Code, including, but not limited to, $ 2-725 thereof, Plaintiffs' Verified Complaint is
barred
TWENTY-THIRD AFFIRMATIVE DEFBNSE
48. Upon information and belief, insofar as plaintiffs rely upon allegations of negligence,
breaches of waranties, fraudulent representations, and violations of obligations of strict products
liability against STROBER ORGANIZATION, INC., prior to September 1975, said causes of action
fail to state fàcts suffìcient to constitute causes of action as against STROBER ORGANIZATION,
INC. by reason of the failure to allege the freedom of plaintiffs from contributory negligence or fault;
and if plaintiffs sustained the injuries, losses and other damages complained of in Plaintiffs' Verified
Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness,
assumptions of risks, fault or other culpable conduct of plaintiffs,
{NY269984 r}
TWBT{TY-FOURTH AFFIRMATIVE DEFENSE
49. Exposure to asbestos fibers attributable to STROBER ORGANIZATION, INC. is so
minimal so as to be insufficient 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.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
50. Finished asbestos-containing products are not unreasonably dangerous as a matter of
law.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
51. Plaintiffs were warned of risk of exposure to use of asbestos-containing materials,
TIVE DEF
52. Upon information and belief, STROBER ORGANIZATION, INC. conformed to the
scientific knowledge and data available in the industry and fulfilled its obligations, if any, and its
activities and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice
or wantonness, and plaintiffs may not recover herein any exemplary or punitive damages against
STROBER ORGANIZATION, INC.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
53, Upon information and belief, insofar as plaintiffs allege as against STROBER
ORGANIZATION, INC., any willful and wanton misconduct, and that it knowingly and intentionally
sold a product or products that it knew to be unreasonably dangerous, all of which STROBER
ORGANIZATION, INC. denies, any such cause of action or causes of action accrued more than one
year prior to the commencement of this lawsuit and are thus time-barred.
{NY269984.l }
TWENTY-NINTH AFFIRMATIVE DEF F],NSIì
54. The injuries and/or illnesses alleged by plaintifß, if any, are governed by the applicable
Workmens' Compensation statutes and shall have constituted an industrial disability, and the exclusive
remedy, if any, shall lie within the terms and ambit of said statutes.
THIRTIETH ATIVF], DIIFF]NSE
55. 'l'he employer(s) of plaintiffs were sophisticated purchasers upon whom devolved all
responsibility for the use of the products referred to in Plaintiffs' Verified Complaint.
THIRTY.FIRST AFFIRMATIVE DEFENSE
56, At all times material hereto, the state of the medical and industrial art was such that
there was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently
dangerous, or hazardous character or nature of products containing asbestos when used in the manner
and purpose described by the plaintiffs and, therefore, there was no duty for STROBER
ORGANIZATION, INC. to know of any such character or nature or to warn plaintiffs or others
similarly situated.
THIRTY.SECOND MATIVR, DITFENSE
57 . 'Io the extent that plaintiffs rely on Section 4 of the New York Laws 1986 , c. 682 as
grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive(s)
STROBBR ORGANIZATION, INC. of its constitutional rights and is/are wholly void and
unenforceable.
{NY2699tì4,1)
THIRTY-THIRD AFF'IRMATIVE DEFBT{SE
58. Any recovery by plaintiffs herein must be reduced by collateral source payments
pursuant to N.Y. Civ. Prac, L. & R. 4545
THIRTY-FOURTH AFFIRMATIVE D F],F'F],NSE
59. Pursuant to General Obligations Law $15-108, STROBER ORGANIZATION, INC.
is entitled to setoff,
THIRTY-FIFTH MATIVF], DEF'F],NSIì
60, STROBBR ORGANIZATION, INC. is entitled to the limitation of liability under
Article 16 of the CPLR.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
61. Plaintiffs' claims are bamed because of Plaintifß' failure to join necessary and
indispensable parties
THIRTY-SEVENTH AFFIRMATIVE DEFBNSE
62. To the extent that plaintiffs seek punitive damages against STROBER
ORGANIZATION, INC. and rely on Section 4 of the New York Laws 1986 , c. 682 as grounds for
reviving or maintaining the action, such damages are improper and are not authorizedby law since this
statute does not revive any claims fur punitive damages, leaving such claims time-barred in their
entirety.
{NY269984 l}
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
63. To the extent that plaintiffs seek punitive damages against STROBER
ORGANIZATION,INC., such damages are improper and unwaranted, not authorized by law, and are
unconstitutional. Subjecting STROBER ORGANIZATION, INC. to multiple trials and the multiple
imposition of punitive damages for a single course of conduct is a violation of both substantive and
procedural due process under the Constitution of the United States and the Constitution of the State of
New York.
THIRTY-NINTH AFFIRMATIVE DEFENSE
64. Plaintiffs' demand for punitive damages is 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 fìnes.
FORTIETH AFFIRMATIVE DEFENSE
65. Plaintiffs' demand for punitive damages is barred by the "ex post facto" clause of the
United States Constitution.
FORTY-FIRST AFFIRMATIVB DEFENSE
66. Plaintiffs contributed to Plaintiffs illness by the use, either in whole, or in part, of other
substances, products, medications or drugs
{NY269984 l)
FORTY-SECOND AFFIRMATIVE D EF'ENSE
67. All defenses which have been or will be asserled by other defendants in this action are
adopted and incorporated by reference as if fully set forth at length herein as defenses to Plaintiffs'
Verifred Complaint.
FORTY-THIRD AFFIRMATIVE DEFENSE
68. STROBER ORGANIZATION, INC. reserves the right to amend this pleading to
asseft additional defenses upon discovery of the specific facts upon which plaintiffs base Plaintiffs'
claims f-or relief, and upon completion of further discovery.
FORTY-FOURTH MATIVE DEFBNSE
69. STROBER ORGANIZATION, INC. reserves the right to move for a severance of the
various allegations in Plaintiffs' Verified Complaint.
FORTY-FIFTH MATIVF], DEF'ENSE
70. To the extent that plaintiffs attempt to assert claims against STROBER
ORGANIZATION, INC. based on alleged sales by any alleged predecessor of STROBER
ORGANIZATION, INC., those claims are barred because STROBER ORGANIZATION' INC.
is not a successor to any alleged liabilities in connection with such sales.
FORTY-SIXTH MATIVE DEF'IINSE
71 . To the extent that plaintiffs attempt to assefi claims against non-corporate entities,
plaintiffs are barred from assefting those claims.
{NY269984. r}
FORTY-SEVENTH AFFIRMATIVE DEFENSB
72. Labor Law Section 200 and 241(6) and 12 NYCR Section 12 and 23 do not apply to
STROBER ORGANIZATION, INC.
CROSS-CLAIM FOR CONTRIBUTION
73. If STROBBR ORGANIZATION, INC. should be found liable to the plaintiffs, which
liability is denied, STROBER ORGANIZATION, INC. asserts that the co-defendants are joint
tortfèasors with respect to any loss, liability and expense on account of Plaintiffs' demand for judgment.
WHBRBFORE,, STROBER ORGANIZATION, INC. demands judgment for contribution
against its co-defendants with respect to any damages which may be recovered against STROBER
ORGANIZATION, INC. herein, together with the expense of defense and costs of suit.
CROSS-CLAIM FOR INDEMNIFICATION
74. Should STROBER ORGANIZATION, INC. be found liable to plaintiffs, which
liability is denied, its liability will be secondary, passive, technical, vicarious or imputed and that of its
co-defendants primary, active and direct
WHEREFORE, STROBER ORGANIZATION, INC. demands judgment against its co-
defendants for indemnification in full with respect to any damages which may be reserved against it
herein, together with costs of suit and attorneys' fees and such other relief as this Court may deem
proper and just.
fNY2l¡9984.I)
ANSWER TO ALL CROSS-CLAIMS
75. STROBER ORGANIZATION, INC. answers the Cross-claims of all co-
defendants, however asserted or alleged, and says
(a) All Cross-claims for Indemnification alleged against STROBER
ORGANIZATION, INC. by any party defendant are denied.
WHEREFORE, STROBBR ORGANIZATION, INC. demands judgment in its favor
dismissing Plaintiffs' Verified Complaint and awarding itattorneys' fees and costs of suit and such
other relief which this Court may deem proper and just.
Dated: Elmsford, New York
October 27 ,201,5
'NEILL, O'BRIEN
DOHERTY & KBLLY, P.C.
Attorneys for Defendant
STROBER ORGANIZATION, INC.
530 Saw Mill River Road
Elmsfbrd, New York 10523
(9r4) 34s-3701
File No.: 569. 1001 I 3
TO
BELLUCK & FOX, LLP
546 Filth Avenue,4th Floor
New York, New York 10036
(212) 681- 1 s75
{NY269984 r}
AFFIRMATION
JAMES M. SKELLY affirms under penalty of perjury:
1. That he is an attorney admitted to practice in the Courts of the State of New York;
2. That he is a member of the firm of Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.,
attorneys for defendant STROBER ORGANIZATION, INC. in this action;
3. That he has read the foregoing Verified Answer and knows the contents thereof;
4. That he believes it to be true;
5. That the grounds for affirmant's belief are investigations and information received by
affrrmant in the course of his duties as the attorney for said defendant; and
6. That the reason why this verification is not made by the defendant is that said defendant
is a foreign corporation.
Dated: Elmsford, New York
October 27 ,2015
.I S Y
1NY269984. r)
SIJPREME COURT OF THE STATE OF NEW YORK
COLJNTY OF NEW YORK
X
ROBERT GODFREY and SHIRLEY GODFREY, AFFIDAVIT OF SERVICE
Plaintiffs, Index No.: 19028012015
-against-
A,O. SMITH WATER PRODUCTS, et al.
INCLUDING STROBER ORGANIZATION, INC
Defendants.
X
CHARLES LENT, being duly sworn, deposes and says: deponent is not a party to this
action, is over 18 years of age and resides in Bronx, New York.
On the 2Jth day of October, 2015, pursuant to and in accordance with the service
requirements of Section202.5-b (g) (Z) of the Uniform Rules for the Trial Courts, I electronically
f,rleda VBRIFIBD ANS\ryER to all parlies at the e-mail addresses of record posted on the electronic
filing system in this electronically-filed action.
CHARLES LENT
Sworn to before me this
27th day of October ,2015
NOT Y PUBL
.h¡OT/X.BYDON${A
M. SÂSITANIELI,-O
PI.JNLIC, iiTÂTË OI' rqEW YORI(
H
QUAI_I Fii:¡ ) i,v triJTN.á,Ft cor lrv-rv-i
&{Y COM¡'!¡lS;tüt¡ tÐû? JVLy Zv,*_[.|
01sA4€$683S¡ f
{NY26ee84 l)
Preview
FILED: NEW YORK COUNTY CLERK 10/27/2015 04:34 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2015 SI]PRtrME COURT OF TI{E STATI] OIì NEW YORK COUNTY OF NEW YORK X ROBERT GODFREY and SHIRLEY GODFREY, VERIFIED ANSWER Plaintiffs, Index No.: 19028012015 -against- A.O. SMITH WATER PRODUCTS, et al. INCLUDING STROBER ORGANIZATION, INC Defendants. X Defendant, STROBER ORGANIZATION, INC., by its attorneys, MARKS, O'NBILL, O'BRIEN, DOHERTY & KELLY, P.C., answering the Verified Complaint of the plaintifß herein, respectfilly alleges upon information and belief: THE PARTIES l. STROBER ORGANIZATION, INC. denies any knowledge or information 661" suflicient to form a belief as to the truth of each and every allegation contained in paragraphs through 43Ð)ß5'' through '034" and "36" througho'42" of PlaintifÏs' Verified Complaint. 2. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraphs (4", ß35" and'043" through o'50" of Plaintiffs' Verified Complaint. AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGEN Ctr 3, In response to paragraph o.51') of Plaintiffs' Verified Complaint, STROBER OIÌGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs no1" through í50" of Plaintiffs' Verified Complaint heretofore made with the same force and effect as if fully set forth at length herein. 4. STROBER ORGAI\IZATION, INC" denies each and every allegation contained in paragraphs r'52" through 0059", including sub-paragraphs, of Plaintiffs'Verified Complaint. {NY269984 r} AS AND FOR A SBCOND CAUSB OF ACTION SOUNDING IN BREACH OF'WARRANTY 5. In response to paragraph ((60)) of Plaintiffs' Verified Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs 1659" of Plaintiffs' Verified Complaint heretofore made with the same force "1" through and effect as if fully set forth at length herein. 6. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraphs "6 1" throu gh " 6 4" of Plaintiffs' Verified Complaint. AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 7. In response to paragraph (65)' of Plaintiffs' Verifìed Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs "1" through,o64" of Plaintiffs'Verified Complaint heretofore made with the same force and effect as if fully set forth at length herein. 8. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraphs "6 6" throu gh " 7 4" of Plaintiffs' Verified Complaint. AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS 9. In response to paragraph ß75" of Plaintiffs' Verified Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs 'r1" through474" of Plaintifß'Verified Complaint heretofore made with the same force and effect as if fully set forth at length herein. 10. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraphs "76" through "93" , including sub-paragraphs, of Plaintiffs' Verified Complaint. (NY269984, r) AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DBFENDANT METROPO ITAN I,IF'F], INSURANCE COMP ANY 11. In response to paragraph '(94') of Plaintiffs' Verified Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs r'1" through 6193" of Plaintiffs'Verifìed Complaint heretofore made with the same force and effect as if fully set forlh at length herein. 12. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraphs "95" through "101" of Plaintiffs'Verified Complaint. AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COI,LECTIVE LIABILITY/CON CERT OF'ACTION 13, In response to paragraph ß102" of Plaintiffs' Verified Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs "1" through "101" of Plaintifß' Verified Complaint heretofore made with the same force and effect as if fully set t-orth at length herein. 14. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraphs ú(103" through "117" , including sub-paragraphs, of Plaintiffs' Verified Complaint. AS AND FOR A SEVENTH CAUSE OF ACTION AINST DEFENDANT 15. In response to paragraph "118" of Plaintiffs' Verified Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs n'1" through of Plaintiffs' Verified Complaint heretofore made with the same force and effect "117" as if fully set forth at length herein. 16. STROBER ORGANIZATION, INC" denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph "119" of Plaintiffs' Verifi ed Complaint. {NY269984, r} 17. STROBBI{ ORGANIZATION, INC. denies each and every allegation contained in paragraphs Kl20'r through ((l3I') of Plaintiffs' Verified Complaint. AS ANÐ FOR AN EIGHTH CAUSE OF ACTION FOR PRBMISBS LIABILITY AG INST CERTAIN DEF'ENDANTS 18. In response to paragraph "132" of Plaintiffs' Verified Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs r'1" through "131" of Plaintiffs' Verified Complaint heretofore made with the same force and effect as if fully set forth at length herein. 19. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraphs ß133'' through o'1470' of Plaintiffs' Verified Complaint. AS AND FOR A NINTH CAUSB OF ACTION INT AND SEVERAL LIAB 20. In response to paragraph "148" of Plaintiffs' Verified Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs "1" through "147" of Plaintiffs' Verified Complaint heretofore made with the same force and effect as if fully set forth at length herein. 2I. STROBER ORGANIZATION, INC. denies each and every allegation contained in ß148') (160') of Plaintifïs' Verified Complaint, paragraphs through AS AND FOR A TENTÍI CAUSE OF ACTION PUNITIVB DAMAGES 22. In response to paragraph "161'o of Plaintiffs' Verifìed Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs o'1" through o'160" of Plaintiffs' Verified Complaint heretofore made with the same force and effect as if fully set forth at length herein. 23. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraph 66162" of Plaintiffs' Verified Complaint. {NY269984 l) AS AND FOR AI{ ELEVEI\TH CAUSE OF ACTION SPOUSAL LOSS OF CONSORTIUM 24. In response to paragraph oo163'o of Plaintiffs' Verified Complaint, STROBER ORGANIZATION, INC. repeats, reiterates and realleges each and every response to paragraphs "1" through "162" of Plaintiffs' Verified Complaint heretofore made with the same force and effect as i1'fully set forth at length herein. 25. STROBER ORGANIZATION, INC. denies each and every allegation contained in paragraphs ('164" and "165"of Plaintiffs' Verified Complaint. FIRST AFFIRMATIVE DEFBNSE 26. Plaintiffs' claims are barred by the applicable statute of limitations. SECOND AFFIRMATIVE DEFENSE 27 . This Court lacks jurisdiction over the subject matter of this action. THIRI) TIVE DEF'ENSE, 28. Plaintiffs failed to properly serve STROBER ORGANIZATION, INC. with its Verified Complaint. FOURTH ATIVtr DEF'ENSR, 29. STROBER ORGANIZATION, INC. gave, made or otherwise extended no warranties, whether express or implied, upon which plaintifß had a right to rely FIFTH AFFIRMATIVE DEFENSE 30. STROBER ORGANIZATION, INC. breached no warranties, whether express or implied INY269984 l ) SIXTH AFFIRMATIVE DEFENSE 31. Any injuries sustained by plaintiffs, as alleged in Plaintiffs' Verified Complaint, were caused in whole or in part by the contributory and/or culpable conduct of said plaintiffs and not as a result of any contributory negligence and/or culpable conduct of this answering defendant, SEVENTH AFFIRMATIVE DEFENSE 32. The matters that are the subject of Plaintiffs' Verified Complaint are attributable to third parties over whom STROBER ORGANIZATION, INC. had neither control nor right of control. EIGHTH AFFIRMATIVE D R,F'trNSE 33. While denying the allegations of the plaintiffs with respect to liability, injury and damages, to the extent that plaintiffs may be able to prove the same, they were the result of intervening acts or superseding negligence on the part of parties over whom STROBER ORGANIZATION, INC. had neither control nor right of control. NINTH AFFIRMATIVE DEFENSE 34. The doctrine of strict liability in torl is inapplicable to this litigation. TENTH AFFIRMATIVE DEFENSB 35. STROBER ORGANIZATION, INC. denies that the asbestos-containing products alleged in Plaintiffs' Verified Complaint are products within the meaning and scope of the Restatement of Tor1s, Section 4021' and as such, the Complaints fails to state a cause of action in strict liability. {NY269984 l} ELEVENTH ATIVE DEF'F],NSE 36. There being no privity of contract between STROBER ORGANIZATION' INL. and the plaintiffs, there can be no cause of action against STROBER ORGANIZATION' INC. for alleged breach of warranties. TWELFTH AFFIRMATIVE DEFENSE 37. To the extent the allegations in Plaintiffs' Verified Complaint may be deemed to be directed or related to STROBER ORGANIZATION, INC., the substance, product or equipment allegedly produced, manufactured, processed, sold, supplied andlor distributed by STROBBR ORGANIZATION, INC. was not used for the purpose for which it was intended, and/or was misused by the plaintiffs. THIRTEENTH MATIVR, DFJ,FENSE 38. Plaintiffs' claims against STROBER ORGANIZATION, INC. are barred by the doctrine of assumption of the risk. FOT]RTEENTH AFF DEF'F)NSE 39. While denying the allegations of plaintiffs with respect to liability, to the extent that plaintiffs may be able to prove negligence or improper conduct, the acts of STROBER ORGANIZATION, II\C. were not a proximate cause of any injuries to plaintiffs. AFFIRMATIVB DEFEN 40. Since plaintiffs are unable to identify the manufacturers of the substance, product or equipment which allegedly caused injury to plaintiffs, plaintiffs fail to state a claim upon which relief may be granted since, if such relief were granted, it would deprive STROBBIT {NY269984 1) OIìGANIZATION, INC. of its constitutional rights to substantive and procedural due process of law and equal protection under the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States. SIXTEENTH AFFIRMATIVE DBFENSE 41. The causes of action asserted herein by plaintiffs, who admittedly is unable to identify the manufacturer of the alleged injury-causing product, fail to state a claim upon which relief can be granted, in that plaintiffs have asserted claims for relief which, if granted, would constitute a taking of private property for public use, without just compensation. Such a taking would contravene STROBBR ORGANIZATION, INC.'s constitutional rights as preserved for it by the Fourteenth Amendment to the Constitution of the United States. SBVENTEENTH AFFIRMATIVE DEFENSB 42. Any exposure that plaintiffs claim to this defendant's products or equipment, which exposure is vigorously denied, was so minimal as to be insufficient to establish a reasonable degree of probability that the products or equipment caused the claimed injuries and illness. EIGHTEENTH MATIVE DF],F'IINSE, 43. The delay of the plaintiffs in commencing suit is inexcusable and has resulted rn prejudice to STROBER ORGANIZATION, INC., and the equitable doctrine of laches bars Plaintiffs' claims. NINETEBNTH AFFIRMATIVB DEFENSE 44. Upon information and beliet plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in Plaintiffs' Verified Complaint. {NY269984, r} T\A/EI\TIBTH AFFIRMATIVE DEFENSE 45. To the extent that STROBER ORGANIZATION, INC. conformed to the scientific knowiedge and research data available throughout the industry and scientific community, STROBER ORGANIZATION, INC. has fulfilled its obligations, if any, herein, and Plaintiffs' claims should be barred, in whole or in parl. TWBNTY-FIRST AFFIRMATIVE DEFENSE 46. To the extent that plaintifïs allege rights hereunder assertedly derived from oral warranties or undertakings on the part of STROBER ORGANIZATION, INC., Plaintiffs' Verified Complaint is barred by the applicable Statute of Frauds. TWENTY-SE COND AF' FIRMATIVE DEFBNSE 47. To the extent that the claims pleaded by plaintifTs fail to accord with the Uniform Commercial Code, including, but not limited to, $ 2-725 thereof, Plaintiffs' Verified Complaint is barred TWENTY-THIRD AFFIRMATIVE DEFBNSE 48. Upon information and belief, insofar as plaintiffs rely upon allegations of negligence, breaches of waranties, fraudulent representations, and violations of obligations of strict products liability against STROBER ORGANIZATION, INC., prior to September 1975, said causes of action fail to state fàcts suffìcient to constitute causes of action as against STROBER ORGANIZATION, INC. by reason of the failure to allege the freedom of plaintiffs from contributory negligence or fault; and if plaintiffs sustained the injuries, losses and other damages complained of in Plaintiffs' Verified Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault or other culpable conduct of plaintiffs, {NY269984 r} TWBT{TY-FOURTH AFFIRMATIVE DEFENSE 49. Exposure to asbestos fibers attributable to STROBER ORGANIZATION, INC. is so minimal so as to be insufficient 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. TWENTY-FIFTH AFFIRMATIVE DEFENSE 50. Finished asbestos-containing products are not unreasonably dangerous as a matter of law. TWENTY-SIXTH AFFIRMATIVE DEFENSE 51. Plaintiffs were warned of risk of exposure to use of asbestos-containing materials, TIVE DEF 52. Upon information and belief, STROBER ORGANIZATION, INC. conformed to the scientific knowledge and data available in the industry and fulfilled its obligations, if any, and its activities and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and plaintiffs may not recover herein any exemplary or punitive damages against STROBER ORGANIZATION, INC. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 53, Upon information and belief, insofar as plaintiffs allege as against STROBER ORGANIZATION, INC., any willful and wanton misconduct, and that it knowingly and intentionally sold a product or products that it knew to be unreasonably dangerous, all of which STROBER ORGANIZATION, INC. denies, any such cause of action or causes of action accrued more than one year prior to the commencement of this lawsuit and are thus time-barred. {NY269984.l } TWENTY-NINTH AFFIRMATIVE DEF F],NSIì 54. The injuries and/or illnesses alleged by plaintifß, if any, are governed by the applicable Workmens' Compensation statutes and shall have constituted an industrial disability, and the exclusive remedy, if any, shall lie within the terms and ambit of said statutes. THIRTIETH ATIVF], DIIFF]NSE 55. 'l'he employer(s) of plaintiffs were sophisticated purchasers upon whom devolved all responsibility for the use of the products referred to in Plaintiffs' Verified Complaint. THIRTY.FIRST AFFIRMATIVE DEFENSE 56, At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently dangerous, or hazardous character or nature of products containing asbestos when used in the manner and purpose described by the plaintiffs and, therefore, there was no duty for STROBER ORGANIZATION, INC. to know of any such character or nature or to warn plaintiffs or others similarly situated. THIRTY.SECOND MATIVR, DITFENSE 57 . 'Io the extent that plaintiffs rely on Section 4 of the New York Laws 1986 , c. 682 as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive(s) STROBBR ORGANIZATION, INC. of its constitutional rights and is/are wholly void and unenforceable. {NY2699tì4,1) THIRTY-THIRD AFF'IRMATIVE DEFBT{SE 58. Any recovery by plaintiffs herein must be reduced by collateral source payments pursuant to N.Y. Civ. Prac, L. & R. 4545 THIRTY-FOURTH AFFIRMATIVE D F],F'F],NSE 59. Pursuant to General Obligations Law $15-108, STROBER ORGANIZATION, INC. is entitled to setoff, THIRTY-FIFTH MATIVF], DEF'F],NSIì 60, STROBBR ORGANIZATION, INC. is entitled to the limitation of liability under Article 16 of the CPLR. THIRTY-SIXTH AFFIRMATIVE DEFENSE 61. Plaintiffs' claims are bamed because of Plaintifß' failure to join necessary and indispensable parties THIRTY-SEVENTH AFFIRMATIVE DEFBNSE 62. To the extent that plaintiffs seek punitive damages against STROBER ORGANIZATION, INC. and rely on Section 4 of the New York Laws 1986 , c. 682 as grounds for reviving or maintaining the action, such damages are improper and are not authorizedby law since this statute does not revive any claims fur punitive damages, leaving such claims time-barred in their entirety. {NY269984 l} THIRTY-EIGHTH AFFIRMATIVE DEFENSE 63. To the extent that plaintiffs seek punitive damages against STROBER ORGANIZATION,INC., such damages are improper and unwaranted, not authorized by law, and are unconstitutional. Subjecting STROBER ORGANIZATION, INC. to multiple trials and the multiple imposition of punitive damages for a single course of conduct is a violation of both substantive and procedural due process under the Constitution of the United States and the Constitution of the State of New York. THIRTY-NINTH AFFIRMATIVE DEFENSE 64. Plaintiffs' demand for punitive damages is 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 fìnes. FORTIETH AFFIRMATIVE DEFENSE 65. Plaintiffs' demand for punitive damages is barred by the "ex post facto" clause of the United States Constitution. FORTY-FIRST AFFIRMATIVB DEFENSE 66. Plaintiffs contributed to Plaintiffs illness by the use, either in whole, or in part, of other substances, products, medications or drugs {NY269984 l) FORTY-SECOND AFFIRMATIVE D EF'ENSE 67. All defenses which have been or will be asserled by other defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to Plaintiffs' Verifred Complaint. FORTY-THIRD AFFIRMATIVE DEFENSE 68. STROBER ORGANIZATION, INC. reserves the right to amend this pleading to asseft additional defenses upon discovery of the specific facts upon which plaintiffs base Plaintiffs' claims f-or relief, and upon completion of further discovery. FORTY-FOURTH MATIVE DEFBNSE 69. STROBER ORGANIZATION, INC. reserves the right to move for a severance of the various allegations in Plaintiffs' Verified Complaint. FORTY-FIFTH MATIVF], DEF'ENSE 70. To the extent that plaintiffs attempt to assert claims against STROBER ORGANIZATION, INC. based on alleged sales by any alleged predecessor of STROBER ORGANIZATION, INC., those claims are barred because STROBER ORGANIZATION' INC. is not a successor to any alleged liabilities in connection with such sales. FORTY-SIXTH MATIVE DEF'IINSE 71 . To the extent that plaintiffs attempt to assefi claims against non-corporate entities, plaintiffs are barred from assefting those claims. {NY269984. r} FORTY-SEVENTH AFFIRMATIVE DEFENSB 72. Labor Law Section 200 and 241(6) and 12 NYCR Section 12 and 23 do not apply to STROBER ORGANIZATION, INC. CROSS-CLAIM FOR CONTRIBUTION 73. If STROBBR ORGANIZATION, INC. should be found liable to the plaintiffs, which liability is denied, STROBER ORGANIZATION, INC. asserts that the co-defendants are joint tortfèasors with respect to any loss, liability and expense on account of Plaintiffs' demand for judgment. WHBRBFORE,, STROBER ORGANIZATION, INC. demands judgment for contribution against its co-defendants with respect to any damages which may be recovered against STROBER ORGANIZATION, INC. herein, together with the expense of defense and costs of suit. CROSS-CLAIM FOR INDEMNIFICATION 74. Should STROBER ORGANIZATION, INC. be found liable to plaintiffs, which liability is denied, its liability will be secondary, passive, technical, vicarious or imputed and that of its co-defendants primary, active and direct WHEREFORE, STROBER ORGANIZATION, INC. demands judgment against its co- defendants for indemnification in full with respect to any damages which may be reserved against it herein, together with costs of suit and attorneys' fees and such other relief as this Court may deem proper and just. fNY2l¡9984.I) ANSWER TO ALL CROSS-CLAIMS 75. STROBER ORGANIZATION, INC. answers the Cross-claims of all co- defendants, however asserted or alleged, and says (a) All Cross-claims for Indemnification alleged against STROBER ORGANIZATION, INC. by any party defendant are denied. WHEREFORE, STROBBR ORGANIZATION, INC. demands judgment in its favor dismissing Plaintiffs' Verified Complaint and awarding itattorneys' fees and costs of suit and such other relief which this Court may deem proper and just. Dated: Elmsford, New York October 27 ,201,5 'NEILL, O'BRIEN DOHERTY & KBLLY, P.C. Attorneys for Defendant STROBER ORGANIZATION, INC. 530 Saw Mill River Road Elmsfbrd, New York 10523 (9r4) 34s-3701 File No.: 569. 1001 I 3 TO BELLUCK & FOX, LLP 546 Filth Avenue,4th Floor New York, New York 10036 (212) 681- 1 s75 {NY269984 r} AFFIRMATION JAMES M. SKELLY affirms under penalty of perjury: 1. That he is an attorney admitted to practice in the Courts of the State of New York; 2. That he is a member of the firm of Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., attorneys for defendant STROBER ORGANIZATION, INC. in this action; 3. That he has read the foregoing Verified Answer and knows the contents thereof; 4. That he believes it to be true; 5. That the grounds for affirmant's belief are investigations and information received by affrrmant in the course of his duties as the attorney for said defendant; and 6. That the reason why this verification is not made by the defendant is that said defendant is a foreign corporation. Dated: Elmsford, New York October 27 ,2015 .I S Y 1NY269984. r) SIJPREME COURT OF THE STATE OF NEW YORK COLJNTY OF NEW YORK X ROBERT GODFREY and SHIRLEY GODFREY, AFFIDAVIT OF SERVICE Plaintiffs, Index No.: 19028012015 -against- A,O. SMITH WATER PRODUCTS, et al. INCLUDING STROBER ORGANIZATION, INC Defendants. X CHARLES LENT, being duly sworn, deposes and says: deponent is not a party to this action, is over 18 years of age and resides in Bronx, New York. On the 2Jth day of October, 2015, pursuant to and in accordance with the service requirements of Section202.5-b (g) (Z) of the Uniform Rules for the Trial Courts, I electronically f,rleda VBRIFIBD ANS\ryER to all parlies at the e-mail addresses of record posted on the electronic filing system in this electronically-filed action. CHARLES LENT Sworn to before me this 27th day of October ,2015 NOT Y PUBL .h¡OT/X.BYDON${A M. SÂSITANIELI,-O PI.JNLIC, iiTÂTË OI' rqEW YORI( H QUAI_I Fii:¡ ) i,v triJTN.á,Ft cor lrv-rv-i &{Y COM¡'!¡lS;tüt¡ tÐû? JVLy Zv,*_[.| 01sA4€$683S¡ f {NY26ee84 l)