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FILED: NEW YORK COUNTY CLERK 03/28/2016 04:52 PM INDEX NO. 190280/2015
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/28/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ROBERT GODFREY and SHIRLEY GODFREY, Index No.: 190280/2015
BASIC, INC.'S
Plaintiffs, VERIFIED ANSWER TO
-v.- PLAINTIFFS' VERIFIED
COMPLAINT, AFFIRMATIVE
A.O. SMITH WATER PRODUCTS, et al., including DEFENSES, CROSS-CLAIMS
BASIC, INC., AND ANSWER TO CROSS-
CLAIMS
Defendants.
Defendant Basic, Inc. ("Answering Defendant" or "Basic") by its attorneys
Malaby & Bradley, LLC, hereby answers Plaintiffs' Verified Complaint filed upon information
and belief on or about September 1, 2015 (hereinafter" Complaint"), as follows:
COMPLAINT
1. Answering Defendant denies knowledge or information sufficient to fonn
a belief as to the truth of the allegations contained in paragraphs 1 and 2 of the Complaint.
2. Answering Defendant denies the allegations contained in paragraph 3 of
the Complaint to the extent they pertain to Answering Defendant and denies knowledge or
infonnation sufficient to form a belief as to the truth of the allegations to the extent they pertain
to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court.
3. Answering Defendant denies the allegations contained in paragraph 4 of
the Complaint, except admits that Answering Defendant is a foreign corporation that has done
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business in the State of New York, with its principal place of business outside of the State of
New York.
4. Answering Defendant denies knowledge or information sufficient to fonn
a belief as to the truth of the allegations contained in paragraphs 5 through 7 (inclusive) and 9
through 45 (inclusive) of the Complaint.
5. Answering Defendant denies the allegations contained in paragraph 8 of
the Complaint, except admits that Answering Defendant is a foreign corporation that has done
business in the State of New York, with its principal place of business outside of the State of
New York.
6. Answering Defendant denies the allegations contained in paragraphs 46
through 50 (inclusive) of the Complaint to the extent they pertain to Answering Defendant,
denies knowledge or infonnation sufficient to form a belief as to the truth of the allegations to
the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions
of law to the Court.
AS TO THE FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE
7. With regard to paragraph 51 of the Complaint, Answering Defendant
repeats, reiterates and realleges each and every response as to paragraphs 1 through 50 of the
Complaint as if more fully set forth herein.
8. Answering Defendant denies the allegations contained in paragraphs 52
through 59 (inclusive) of the Complaint including all sub-parts therein to the extent they pertain
to Answering Defendant, denies knowledge or information sufficient to form a belief as to the
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truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this
action, and refers all questions of law to the Court.
AS TO THE SECOND CAUSE OF ACTION SOUNDING IN
BREACH OF WARRANTY
9. With regard to paragraph 60 of the Complaint, Answering Defendant
repeats, reiterates and realleges each and every response as to paragraphs 1 through 59 of the
Complaint as if more fully set forth herein.
10. Answering Defendant denies the allegations contained in paragraphs 61
through 64 (inclusive) of the Complaint to the extent they pertain to Answering Defendant,
denies knowledge or information sufficient to form a belief as to the truth of the allegations to
the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions
of law to the Court.
AS TO THE THIRD CAUSE OF ACTION SOUNDING IN
STRICT LIABILITY
11. With regard to paragraph 65 of the Complaint, Answering Defendant
repeats, reiterates and realleges each and every response as to paragraphs 1 through 64 of the
Complaint as if more fully set forth herein.
12. Answering Defendant denies the allegations contained in paragraphs 66
through 74 (inclusive) of the Complaint to the extent they pertain to Answering Defendant,
denies knowledge or information sufficient to form a belief as to the truth of the allegations to
the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions
of law to the Court.
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AS TO THE FOURTH CAUSE OF ACTION
LABOR LAW VIOLATIONS
13. With regard to paragraph 75 of the Complaint, Answering Defendant
repeats, reiterates and realleges each and every response as to paragraphs 1 through 74 of the
Complaint as if more fully set forth herein.
14. Answering Defendant denies the allegations contained in paragraphs 76
through 93 (inclusive) of the Complaint, including all sub-parts therein, to the extent they pertain
to Answering Defendant, denies knowledge or information sufficient to fonn a belief as to the
truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this
action, and refers all questions of law to the Court.
AS TO THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT
METRO POLITAN LIFE INSURANCE COMP ANY
15. With regard to paragraph 94 of the Complaint, Answering Defendant
repeats, reiterates and realleges each and every response as to paragraphs 1 through 93 of the
Complaint as if more fully set forth herein.
16. Answering Defendant denies the allegations contained in paragraphs 95
through 101 (inclusive) of the Complaint to the extent they pertain to Answering Defendant,
denies knowledge or information sufficient to form a belief as to the truth of the allegations to
the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions
of law to the Court.
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AS TO THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY
AND COLLECTIVE LIABILITY/ CONCERT OF ACTION
17. With regard to paragraph 102 of the Complaint, Answering Defendant
repeats, reiterates and realleges each and every response as to paragraphs 1 through 101 of the
Complaint as if more fully set forth herein.
18. Answering Defendant denies the allegations contained in paragraphs 103
through 117 (inclusive) of the Complaint, including all sub-parts therein, to the extent they
pertain to Answering Defendant, denies knowledge or information sufficient to form a belief as
to the truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this
action, and refers all questions of law to the Court.
AS TO THE SEVENTH CAUSE OF ACTION AGAINST
DEFENDANT CONTRACTORS
19. With regard to paragraph 118 of the Complaint, Answering Defendant
repeats, reiterates and realleges each and every response as to paragraphs 1 through 117 of the
Complaint as if more fully set forth herein.
20. Answering Defendant denies knowledge or infonnation sufficient to form
a belief as to the truth of the allegations contained in paragraphs 119 through 131 (inclusive) of
the Complaint, including all subparts therein, insofar as they apparently are not directed at
Answering Defendant, otherwise generally denies the allegations, and refers all questions of law
to the Court.
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AS TO THE EIGHTH CAUSE OF ACTION FOR
PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
21. With regard to paragraph 132 of the Complaint, Answering Defendant
repeats, reiterates and realleges each and every response as to paragraphs 1 through 131 of the
Complaint as if more fully set forth herein.
22. Answering Defendant denies knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraphs 133 through 147 (inclusive) of
the Complaint, insofar as they apparently are not directed at Answering Defendant, otherwise
generally denies the allegations, and refers all questions of law to the Court.
AS TO THE NINTH CAUSE OF ACTION
JOINT AND SEVERAL LIABILITY
23. With regard to paragraph 148 of the Complaint, Answering Defendant,
reiterates and realleges each and every response as to paragraphs 1through147 of the Complaint
as if more fully set forth herein.
24. Answering Defendant denies knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraphs 149 through 160 (inclusive),
insofar as these allegations are not directed at Answering Defendant, and otherwise generally
denies the truth of the allegations contained in paragraphs 149 through 160 (inclusive) of the
Complaint, and refers all questions of law to the Court.
AS AND FOR A TENTH CAUSE OF ACTION
PUNITIVE DAMAGES
25. With regard to paragraph 161 of the Complaint, Answering
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Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through
160 of the Complaint as if more fully set forth herein.
26. Answering Defendant denies knowledge or infonnation sufficient to
form a belief as to the truth of the allegations contained in paragraph 162, insofar as these
allegations are not directed at Answering Defendant,_ and otherwise generally denies the truth of
the allegations contained in paragraph 167 of the Complaint, and refers all questions oflaw to the
Court.
AS AND FOR AN ELEVENTH CAUSE OF ACTION
SPOUSAL LOSS OF CONSORTIUM
27. With regard to paragraph 163 of the Complaint, Answering
Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through
162 of the Complaint as if more fully set forth herein.
28. Answering Defendant denies knowledge or information sufficient to
form a belief as to the truth of the allegations contained in paragraphs 164 and 165 of the
Complaint, and refers all questions of law to the Court.
AS FOR A FIRST AFFIRMATIVE DEFENSE
29. The Complaint fails to state a cause of action upon which relief can
be granted against Answering Defendant.
AS FOR A SECOND AFFIRMATIVE DEFENSE
30. Plaintiffs' claims are time barred by reason of the applicable statute(s) of
limitations.
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AS FOR A THIRD AFFIRMATIVE DEFENSE
31 In the event that Plaintiffs rely on New York Law, L. 1986 C. 682
Sections 4 and 12 as grounds for maintaining this action, these sections are unconstitutional and
this action is time barred.
AS FOR A FOURTH AFFIRMATIVE DEFENSE
32 Plaintiffs' claims are barred by the operation of the doctrine oflaches.
AS FOR A FIFTH AFFIRMATIVE DEFENSE
33. Plaintiffs' claims are barred by the operation of the doctrine of estoppel.
AS FOR A SIXTH AFFIRMATIVE DEFENSE
34. Plaintiffs have waived all claims against Answering Defendant.
AS FOR A SEVENTH AFFIRMATIVE DEFENSE
35. This Court lacks jurisdiction over the subject matter of this action.
AS FOR AN EIGHTH AFFIRMATIVE DEFENSE
36. This Court lacks personal jurisdiction over Answering Defendant.
AS FOR A NINTH AFFIRMATIVE DEFENSE
37. The venue of this action is improper.
AS FOR A TENTH AFFIRMATIVE DEFENSE
38. Plaintiffs lack the capacity, standing or authority to bring this action, in
whole or in part.
AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE
39. Plaintiffs' claims are barred by the doctrines of res judicata and/or
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collateral estoppel.
AS FOR A TWELFTH AFFIRMATIVE DEFENSE
40. Plaintiffs' speculative, uncertain and/or contingent damages have not
accrued and are not recoverable.
AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE
41. There is no justiciable issue or controversy.
AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE
42. Joinder of individual Plaintiffs in this action is improper because they do
not assert any right to relief jointly, severally, or, in the alternative, do not arise out of the same
transaction, occurrence, or series of transactions or occurrences.
AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE
43. This cause of action must be dismissed in the event Plaintiffs have another
action pending against Answering Defendant for the same cause of action in another court.
AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE
44. In the event Plaintiffs' executed a settlement agreement releasing and
discharging Answering Defendant from all claims arising out of Plaintiffs' alleged injury, all
claims alleged by Plaintiffs should be dismissed.
AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
45. To the extent that Plaintiffs have given a release or covenant not to sue or
not to enforce a judgment to an alleged co-tortfeasor of Answering Defendant, Plaintiffs' claim
herein is reduced to the extent of any amount stipulated by the release or covenant, in the amount
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of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the
damages, whichever is greater.
AS FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
46. Plaintiffs were not injured by exposure to Answering Defendant's
products.
AS FOR A NINETEENTH AFFIRMATIVE DEFENSE
47. No acts or omissions of this defendant proximately caused any damages.
AS FOR A TWENTIETH AFFIRMATIVE DEFENSE
48. In the event that Plaintiffs were employed by any of the Defendants,
Plaintiffs' sole and exclusive remedy is under the Worker's Compensation Law of the State of
New York.
AS FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
49. Insofar as the Complaint, and each cause of action considered
separately, alleges a cause of action accruing on or after September 1, 197 5 to recover damages
for personal injuries, the amount of damages recoverable thereon must be diminished by reason
of the culpable conduct attributable to Plaintiffs, including contributory negligence and
assumption of risk, in the proportion which the culpable conduct attributable to Plaintiffs bear to
the culpable conduct which caused the damages.
AS FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
50. Insofar as the Complaint, and each cause of action considered
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separately, alleges a cause of action accruing on or after September 1, 1975 each such cause of
action is barred by reason of the culpable conduct attributable to Plaintiffs, including contributory
negligence and assumption of risk.
AS FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
51. To the extent that Plaintiffs were injured as alleged in the Complaint,
which Answering Defendant denies, said injury was proximately caused by the negligence,
breach of warranty and/or strict liability of persons and/or entities other than Answering
Defendant.
AS FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
52. To the extent that Plaintiffs were injured as alleged in the Complaint,
which Answering Defendant denies, such injury was the result of intervening and/or superseding
acts or omissions of parties over whom Answering Defendant had no control or right to control
and with whom it had no legal relationship.
AS FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
53. At all times relevant hereto, the knowledge of Plaintiffs' employer(s) was
superior to that of Answering Defendant with respect to possible health hazards associated with
Plaintiffs' employment, and, therefore, if there was any duty to warn or provide protection to
Plaintiffs, it was the duty of said employer, not of Answering Defendant, and breach of that duty
was an intervening and/or superseding cause of the injuries allegedly sustained by Plaintiffs.
AS FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
54. At all times during the conduct of their corporate operations, the agents,
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servants and/or employees of Answering Defendant used proper methods in their production
activities in conformity to the available knowledge and research of the scientific and industrial
communities.
AS FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
55. To the extent that Plaintiffs sustained injuries from the use of Basic
products, which Answering Defendant denies, such injuries resulted from the unforeseeable
misuse, abuse, alteration, modification, and/or unauthorized handling of the product by Plaintiffs,
or by third-parties, over whom Answering Defendant had no control or right to control.
AS FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
56. Any damages allegedly sustained by Plaintiffs was the proximate result of
any unforeseen and/or unforeseeable negligent, grossly negligent, wanton, reckless, omissions or
conduct of intervening third parties or superseding parties.
AS FORA TWENTY-NINTH AFFIRMATIVE DEFENSE
57. The damages allegedly sustained by the Plaintiffs were caused, in whole or
in part, by the negligence or other culpable conduct of one or more persons or instrumentalities
over which Answering Defendant had no control and with whom it had no legal relationship.
AS FOR A THIRTIETH AFFIRMATIVE DEFENSE
58. The damages allegedly sustained by Plaintiffs were caused, in whole or in
part, through the operation of nature.
AS FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
59. Plaintiffs voluntarily assumed the risks associated with the use of or
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exposure to the products at issue.
AS FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
60. Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries
alleged in the Complaint.
AS FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
61. Answering Defendant had no knowledge or reason to know of any
alleged risks associated with finished asbestos-containing products at any time during the
purported peril complained of in the Complaint.
AS FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
62. Plaintiffs contributed to the injuries alleged by the use of other substances,
products, medications and drugs.
AS FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
63. Plaintiffs' injuries were caused directly, solely and proximately by
sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiffs and not found in the general
public, of which Answering Defendant neither knew, had reason to know, nor could have
foreseen.
AS FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
64. As to all causes of action pleaded in the Complaint which are based
upon expressed or implied representations, such causes of action are legally insufficient as
against Answering Defendant as there was no privity of contract between Plaintiffs and
Answering Defendant.
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AS FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
65. Plaintiffs never purchased, directly or indirectly, any asbestos-containing
product or materials from Answering Defendant, nor did Plaintiffs ever receive or rely upon any
representation allegedly made by Answering Defendant.
AS FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
66. Plaintiffs lacks capacity and/or standing to maintain a claim for relief
against Answering Defendant with respect to injuries alleged to have been suffered by Plaintiffs.
AS FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
67. To the extent that Plaintiffs were exposed to any product manufactured by
Answering Defendant, which Answering Defendant denies, said exposure was de minimis and
not a substantial contributing factor to any asbestos-related disease which Plaintiffs may have
developed, thus requiring dismissal of the Complaint against Answering Defendant.
AS FOR A FORTIETH AFFIRMATIVE DEFENSE
68. Plaintiffs' claims are barred because of Plaintiffs' failure to join necessary
and indispensable parties.
AS FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
69. To the extent that Plaintiffs are entitled to damages, which Basic denies,
Answering Defendant is entitled to a set-off for all Workers' Compensation payments received
by Plaintiffs.
AS FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
70. To the extent that any injury relating to the Plaintiffs occurred in the
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context of an employer/employee relationship, claims for said injuries are barred by the Workers'
Compensation Act.
AS FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
71. In accordance with CPLR 1601, Answering Defendant's liability for
non-economic loss is limited to its equitable share of the total liability for non-economic loss.
AS FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
72. In accordance with CPLR 4545(c), Answering Defendant is entitled to
a set-off for any past or future costs or expenses incurred or to be incurred by Plaintiffs for
medical care, custodial care of rehabilitation services, loss of earnings or other economic loss,
which has been or will with reasonable certainty be replaced or indemnified in whole or in part
from a collateral source.
AS FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
73. Plaintiffs' action is barred by the government contractor's defense because
Answering Defendant was a contractor supplying materials, labor and or services to the United
States Government.
AS FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
74. ,At all relevant times, the state of the medical, scientific, and industrial
knowledge, the state of the art, practice, and prevailing industry standards regarding
asbestos-containing products was such that Answering Defendant neither knew, had reason to
know, nor could have known of any foreseeable or significant risk or harm to Plaintiffs in the
normal or expected use of Answering Defendant's products.
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AS FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
75. At all times relevant to this litigation, Answering Defendant complied
with all applicable law, regulations and standards.
AS FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
76. Any injuries sustained by Plaintiffs resulted from Plaintiffs' alleged use of
or exposure to asbestos or asbestos-containing products manufactured and sold in strict
compliance with mandatory specifications established by persons or entities other than Answering
Defendant, including, without limitation, agencies, agents and departments of the United States,
which persons or entities possessed, at the time of such manufacture or sale, knowledge equal to
or greater than that of Answering Defendant concerning the properties and characteristics of
asbestos and asbestos-containing products.
AS FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
77. Any asbestos-containing Answering Defendant products were supplied
according to the purchaser's or user's specifications and standards.
AS FOR A FIFTIETH AFFIRMATIVE DEFENSE
78. Answering Defendant was under no legal duty to warn Plaintiffs of any
hazards from the use of any asbestos-containing products. The actual purchasers and/or those
under the purchasers' control, Plaintiffs' employer(s), and the owners and lessors of the properties
at which Plaintiff allege exposure to such products, were in a far better position to warn Plaintiffs
and, if any such warning was legally required, which is expressly denied; their failure to do so was
a superseding and proximate cause of Plaintiffs' alleged injury.
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AS FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
79. Plaintiffs were reasonably and adequately warned of any alleged risks
associated with the use of or exposure to asbestos-containing products.
AS FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
80. Timely and/or proper notice was not given to Answering Defendant
as to any alleged breach of warranty.
AS FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
81. To the extent Plaintiffs' claims are based on an alleged breach of warranty,
Plaintiffs did not rely on any warranty.
AS FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
82. This defendant is not liable to the Plaintiffs for the damages alleged in the
Complaint because such damages are excluded and not recoverable under express warranty.
AS FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
83. This defendant denies that the asbestos products alleged in the Plaintiffs'
Complaint are products within the meaning and scope of the Restatement of Torts §402A and as
such, the Complaint fail to state a cause of action in strict products liability.
AS FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
84. Any oral warranties upon which Plaintiffs allegedly relied are
inadmissable under the Statute of Frauds.
AS FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
85. Any claims by Plaintiffs for exemplary and/or punitive damages are barred
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because such damages are not recoverable or warranted.
AS FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
86. Answering Defendant's conduct was not reckless, malicious, and willful
or grossly negligent, and consequently, Plaintiffs are not entitled to exemplary and/or punitive
damages.
AS FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
87. Any claim for punitive damages is barred by the double jeopardy clause of
the Fifth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, as Article I, Section 6 of the New York State Constitution.
AS FOR A SIXTIETH AFFIRMATIVE DEFENSE
88. Any claim for punitive damages is barred by the ex post.facto clause of
Article I, Section 10 of the United States Constitution.
AS FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
89. Any claim for punitive damages is barred by the proscription of Article I,
Section 5 of the New York State Constitution prohibiting the imposition of excessiveness.
AS FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
90. To the extent the law of any other jurisdiction is applicable to this action,
any demand for punitive damages is barred by the applicable proscriptions of the constitution of
such jurisdiction.
AS FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
91. All defenses which have been or will be asserted by other Defendants in
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this action are adopted and incorporated by reference as if fully set forth herein. In addition,
Answering Defendant will rely upon any and all other further defenses which become available
or appear during discovery in this action and hereby specifically reserves its right to amend its
answer for the purpose of asserting any such additional affirmative defenses.
AS FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE
92. To the extent that Answering Defendant conformed to the scientific
knowledge and research data available throughout the industry and scientific community,
Answering Defendant has fulfilled its obligations, if any, herein, and Plaintiffs' claims should be
barred, in whole or in part.
AS FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE
93. At all times material hereto, that 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 allegedly containing asbestos
when used in the manner and purpose described by the Plaintiffs, and therefore, there was no
duty to Answering Defendant to know of any such character or nature as to warn Plaintiffs or
others similarly situated.
AS FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE
94. Defendant cannot be held liable under principles of strict tort liability
because products manufactured and/or products which left defendant's possession did so prior to
the enactment of New York law regarding strict liability.
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AS FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE
95. Plaintiffs' purported exposure to asbestos occurred on a federal enclave.
All claims arising from alleged incidents on federal enclaves must be determined in accordance
with federal laws.
AS FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE
96. The design, construction, maintenance, and all safety aspects of the
equipment at issue implicates government contracts that give rise to federal laws, including but
not limited to the War Powers Acts.
AS FOR A SIXTY-NINTHAFFIRMATIVE DEFENSE
97. Answering Defendant acted under the authority of an officer or
agency of the United States, within the meaning of 28 U.S.C. § 1442(a)(l). Answering
Defendant acted under the direction, control and demand of the U.S. Government, the Secretary
of the Navy or its/his delegee based on extensive and strict government design specifications.
AS FOR A SEVENTIETH AFFIRMATIVE DEFENSE
98. The government mandated precise specifications regarding the products it
needed, and Answering Defendant conformed to those specifications. Answering Defendant
cannot be liable to a third party in tort if the government approved reasonably precise
specifications and Answering Defendant conformed to those specification.
AS FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE
99. Pursuant to the Defense Production Act, Answering Defendant cannot
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be held liable for damages or penalties for any act or failure to act resulting directly or indirectly
from compliance with a rule, regulation, or order issued pursuant to the Defense Production Act.
AS AND FOR A CROSS-CLAIM AGAINST EACH OF THE OTHER DEFENDANTS
100. If damages were sustained at the time(s) and place(s) set forth in the
Complaint through any carelessness, recklessness and/or negligence other than that of Plaintiffs,
including, but not limited to, the manufacture and distribution of asbestos-containing products,
breach of warranty or misrepresentations, either express or implied, and/or through strict liability
in tort, such damages, in whole or in part, will have been caused and brought about by reason of
the carelessness, recklessness and/or negligence of each of the other Defendants named in this
action.
101. If Plaintiffs should recover a judgment against Answering Defendant,
by operation oflaw or otherwise, Answering Defendant will be entitled to judgment, contribution
and/or indemnification, in whole or in part, from each of the other Defendants named in this
action, their agents, servants and/or employees, by reason of their carelessness, recklessness,
and/or negligence for the amount of any such recovery, in accordance with principles of law
regarding apportionment of fault and damages, along with costs, disbursements and reasonable
expenses of the investigation and defense of this action, including reasonable attorney's fees.
WHEREFORE, Defendant, Basic, Inc., demands judgment dismissing the
Complaint as to it, together with the costs and disbursements of this action, and, to the extent of
any recovery by Plaintiffs against Basic, Inc. herein, further demands judgment for contribution
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and/or indemnification against each of the other defendants named in the Complaint together
with Basic, Inc.' s costs and disbursements in this action.
ANSWER TO ALL CROSS-CLAIMS
Answering Defendant hereby answers the cross-claims of each of the other
defendants named in this action, however asserted or alleged, and says:
102. All cross-claims for contribution alleged against Answering Defendant by
any party Defendant are denied.
103. All cross-claims for indemnification alleged against Answering Defendant
by any party Defendant are denied.
104. All cross-claims for contractual indemnification alleged against Answering
Defendant by any party Defendant are denied.
WHEREFORE, Defendant Basic, Inc. demands judgment in its favor and against
all other Defendants and requests the Court to dismiss all cross-claims filed against Basic, Inc.
with prejudice and award Basic, Inc. its costs, attorney's fees and disbursements in this action.
Dated: New York, New York
March 25, 2016
By: '1-~-
Mktthew E. Endlich, Esq.
Attorneys for Defendant Basic, Inc.
150 Broadway, Suite 600
New York, New York 10038
(212) 791-0285
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To: Joseph W. Belluck, Esq.
Belluck & Fox, LLP
Attorney for Plaintiff
546 Fifth A venue, 4th Floor
New York, NY 10036
(212) 681-1575
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FILED: NEW YORK COUNTY CLERK 03/28/2016 04:52 PM INDEX NO. 190280/2015 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 03/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ROBERT GODFREY and SHIRLEY GODFREY, Index No.: 190280/2015 BASIC, INC.'S Plaintiffs, VERIFIED ANSWER TO -v.- PLAINTIFFS' VERIFIED COMPLAINT, AFFIRMATIVE A.O. SMITH WATER PRODUCTS, et al., including DEFENSES, CROSS-CLAIMS BASIC, INC., AND ANSWER TO CROSS- CLAIMS Defendants. Defendant Basic, Inc. ("Answering Defendant" or "Basic") by its attorneys Malaby & Bradley, LLC, hereby answers Plaintiffs' Verified Complaint filed upon information and belief on or about September 1, 2015 (hereinafter" Complaint"), as follows: COMPLAINT 1. Answering Defendant denies knowledge or information sufficient to fonn a belief as to the truth of the allegations contained in paragraphs 1 and 2 of the Complaint. 2. Answering Defendant denies the allegations contained in paragraph 3 of the Complaint to the extent they pertain to Answering Defendant and denies knowledge or infonnation sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court. 3. Answering Defendant denies the allegations contained in paragraph 4 of the Complaint, except admits that Answering Defendant is a foreign corporation that has done {00017065.} 1 of 26 business in the State of New York, with its principal place of business outside of the State of New York. 4. Answering Defendant denies knowledge or information sufficient to fonn a belief as to the truth of the allegations contained in paragraphs 5 through 7 (inclusive) and 9 through 45 (inclusive) of the Complaint. 5. Answering Defendant denies the allegations contained in paragraph 8 of the Complaint, except admits that Answering Defendant is a foreign corporation that has done business in the State of New York, with its principal place of business outside of the State of New York. 6. Answering Defendant denies the allegations contained in paragraphs 46 through 50 (inclusive) of the Complaint to the extent they pertain to Answering Defendant, denies knowledge or infonnation sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court. AS TO THE FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE 7. With regard to paragraph 51 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 50 of the Complaint as if more fully set forth herein. 8. Answering Defendant denies the allegations contained in paragraphs 52 through 59 (inclusive) of the Complaint including all sub-parts therein to the extent they pertain to Answering Defendant, denies knowledge or information sufficient to form a belief as to the {00017065.} 2 of 26 truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court. AS TO THE SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY 9. With regard to paragraph 60 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 59 of the Complaint as if more fully set forth herein. 10. Answering Defendant denies the allegations contained in paragraphs 61 through 64 (inclusive) of the Complaint to the extent they pertain to Answering Defendant, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court. AS TO THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 11. With regard to paragraph 65 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 64 of the Complaint as if more fully set forth herein. 12. Answering Defendant denies the allegations contained in paragraphs 66 through 74 (inclusive) of the Complaint to the extent they pertain to Answering Defendant, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court. {00017065.} -3- 3 of 26 AS TO THE FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS 13. With regard to paragraph 75 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 74 of the Complaint as if more fully set forth herein. 14. Answering Defendant denies the allegations contained in paragraphs 76 through 93 (inclusive) of the Complaint, including all sub-parts therein, to the extent they pertain to Answering Defendant, denies knowledge or information sufficient to fonn a belief as to the truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court. AS TO THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT METRO POLITAN LIFE INSURANCE COMP ANY 15. With regard to paragraph 94 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 93 of the Complaint as if more fully set forth herein. 16. Answering Defendant denies the allegations contained in paragraphs 95 through 101 (inclusive) of the Complaint to the extent they pertain to Answering Defendant, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court. {00017065.} -4- 4 of 26 AS TO THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/ CONCERT OF ACTION 17. With regard to paragraph 102 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 101 of the Complaint as if more fully set forth herein. 18. Answering Defendant denies the allegations contained in paragraphs 103 through 117 (inclusive) of the Complaint, including all sub-parts therein, to the extent they pertain to Answering Defendant, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiffs or any other defendant in this action, and refers all questions of law to the Court. AS TO THE SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS 19. With regard to paragraph 118 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 117 of the Complaint as if more fully set forth herein. 20. Answering Defendant denies knowledge or infonnation sufficient to form a belief as to the truth of the allegations contained in paragraphs 119 through 131 (inclusive) of the Complaint, including all subparts therein, insofar as they apparently are not directed at Answering Defendant, otherwise generally denies the allegations, and refers all questions of law to the Court. {00017065.} -5- 5 of 26 AS TO THE EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS 21. With regard to paragraph 132 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 131 of the Complaint as if more fully set forth herein. 22. Answering Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 133 through 147 (inclusive) of the Complaint, insofar as they apparently are not directed at Answering Defendant, otherwise generally denies the allegations, and refers all questions of law to the Court. AS TO THE NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY 23. With regard to paragraph 148 of the Complaint, Answering Defendant, reiterates and realleges each and every response as to paragraphs 1through147 of the Complaint as if more fully set forth herein. 24. Answering Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 149 through 160 (inclusive), insofar as these allegations are not directed at Answering Defendant, and otherwise generally denies the truth of the allegations contained in paragraphs 149 through 160 (inclusive) of the Complaint, and refers all questions of law to the Court. AS AND FOR A TENTH CAUSE OF ACTION PUNITIVE DAMAGES 25. With regard to paragraph 161 of the Complaint, Answering {00017065.} -6- 6 of 26 Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 160 of the Complaint as if more fully set forth herein. 26. Answering Defendant denies knowledge or infonnation sufficient to form a belief as to the truth of the allegations contained in paragraph 162, insofar as these allegations are not directed at Answering Defendant,_ and otherwise generally denies the truth of the allegations contained in paragraph 167 of the Complaint, and refers all questions oflaw to the Court. AS AND FOR AN ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF CONSORTIUM 27. With regard to paragraph 163 of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response as to paragraphs 1 through 162 of the Complaint as if more fully set forth herein. 28. Answering Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 164 and 165 of the Complaint, and refers all questions of law to the Court. AS FOR A FIRST AFFIRMATIVE DEFENSE 29. The Complaint fails to state a cause of action upon which relief can be granted against Answering Defendant. AS FOR A SECOND AFFIRMATIVE DEFENSE 30. Plaintiffs' claims are time barred by reason of the applicable statute(s) of limitations. {00017065.} -7- 7 of 26 AS FOR A THIRD AFFIRMATIVE DEFENSE 31 In the event that Plaintiffs rely on New York Law, L. 1986 C. 682 Sections 4 and 12 as grounds for maintaining this action, these sections are unconstitutional and this action is time barred. AS FOR A FOURTH AFFIRMATIVE DEFENSE 32 Plaintiffs' claims are barred by the operation of the doctrine oflaches. AS FOR A FIFTH AFFIRMATIVE DEFENSE 33. Plaintiffs' claims are barred by the operation of the doctrine of estoppel. AS FOR A SIXTH AFFIRMATIVE DEFENSE 34. Plaintiffs have waived all claims against Answering Defendant. AS FOR A SEVENTH AFFIRMATIVE DEFENSE 35. This Court lacks jurisdiction over the subject matter of this action. AS FOR AN EIGHTH AFFIRMATIVE DEFENSE 36. This Court lacks personal jurisdiction over Answering Defendant. AS FOR A NINTH AFFIRMATIVE DEFENSE 37. The venue of this action is improper. AS FOR A TENTH AFFIRMATIVE DEFENSE 38. Plaintiffs lack the capacity, standing or authority to bring this action, in whole or in part. AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE 39. Plaintiffs' claims are barred by the doctrines of res judicata and/or {00017065.} -8- 8 of 26 collateral estoppel. AS FOR A TWELFTH AFFIRMATIVE DEFENSE 40. Plaintiffs' speculative, uncertain and/or contingent damages have not accrued and are not recoverable. AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE 41. There is no justiciable issue or controversy. AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE 42. Joinder of individual Plaintiffs in this action is improper because they do not assert any right to relief jointly, severally, or, in the alternative, do not arise out of the same transaction, occurrence, or series of transactions or occurrences. AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE 43. This cause of action must be dismissed in the event Plaintiffs have another action pending against Answering Defendant for the same cause of action in another court. AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE 44. In the event Plaintiffs' executed a settlement agreement releasing and discharging Answering Defendant from all claims arising out of Plaintiffs' alleged injury, all claims alleged by Plaintiffs should be dismissed. AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 45. To the extent that Plaintiffs have given a release or covenant not to sue or not to enforce a judgment to an alleged co-tortfeasor of Answering Defendant, Plaintiffs' claim herein is reduced to the extent of any amount stipulated by the release or covenant, in the amount {00017065.} -9- 9 of 26 of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages, whichever is greater. AS FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 46. Plaintiffs were not injured by exposure to Answering Defendant's products. AS FOR A NINETEENTH AFFIRMATIVE DEFENSE 47. No acts or omissions of this defendant proximately caused any damages. AS FOR A TWENTIETH AFFIRMATIVE DEFENSE 48. In the event that Plaintiffs were employed by any of the Defendants, Plaintiffs' sole and exclusive remedy is under the Worker's Compensation Law of the State of New York. AS FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 49. Insofar as the Complaint, and each cause of action considered separately, alleges a cause of action accruing on or after September 1, 197 5 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which caused the damages. AS FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 50. Insofar as the Complaint, and each cause of action considered {00017065.} -10- 10 of 26 separately, alleges a cause of action accruing on or after September 1, 1975 each such cause of action is barred by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk. AS FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 51. To the extent that Plaintiffs were injured as alleged in the Complaint, which Answering Defendant denies, said injury was proximately caused by the negligence, breach of warranty and/or strict liability of persons and/or entities other than Answering Defendant. AS FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 52. To the extent that Plaintiffs were injured as alleged in the Complaint, which Answering Defendant denies, such injury was the result of intervening and/or superseding acts or omissions of parties over whom Answering Defendant had no control or right to control and with whom it had no legal relationship. AS FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 53. At all times relevant hereto, the knowledge of Plaintiffs' employer(s) was superior to that of Answering Defendant with respect to possible health hazards associated with Plaintiffs' employment, and, therefore, if there was any duty to warn or provide protection to Plaintiffs, it was the duty of said employer, not of Answering Defendant, and breach of that duty was an intervening and/or superseding cause of the injuries allegedly sustained by Plaintiffs. AS FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 54. At all times during the conduct of their corporate operations, the agents, {00017065.} -11- 11 of 26 servants and/or employees of Answering Defendant used proper methods in their production activities in conformity to the available knowledge and research of the scientific and industrial communities. AS FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 55. To the extent that Plaintiffs sustained injuries from the use of Basic products, which Answering Defendant denies, such injuries resulted from the unforeseeable misuse, abuse, alteration, modification, and/or unauthorized handling of the product by Plaintiffs, or by third-parties, over whom Answering Defendant had no control or right to control. AS FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 56. Any damages allegedly sustained by Plaintiffs was the proximate result of any unforeseen and/or unforeseeable negligent, grossly negligent, wanton, reckless, omissions or conduct of intervening third parties or superseding parties. AS FORA TWENTY-NINTH AFFIRMATIVE DEFENSE 57. The damages allegedly sustained by the Plaintiffs were caused, in whole or in part, by the negligence or other culpable conduct of one or more persons or instrumentalities over which Answering Defendant had no control and with whom it had no legal relationship. AS FOR A THIRTIETH AFFIRMATIVE DEFENSE 58. The damages allegedly sustained by Plaintiffs were caused, in whole or in part, through the operation of nature. AS FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 59. Plaintiffs voluntarily assumed the risks associated with the use of or {00017065.} -12- 12 of 26 exposure to the products at issue. AS FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 60. Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the Complaint. AS FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 61. Answering Defendant had no knowledge or reason to know of any alleged risks associated with finished asbestos-containing products at any time during the purported peril complained of in the Complaint. AS FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 62. Plaintiffs contributed to the injuries alleged by the use of other substances, products, medications and drugs. AS FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 63. Plaintiffs' injuries were caused directly, solely and proximately by sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiffs and not found in the general public, of which Answering Defendant neither knew, had reason to know, nor could have foreseen. AS FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 64. As to all causes of action pleaded in the Complaint which are based upon expressed or implied representations, such causes of action are legally insufficient as against Answering Defendant as there was no privity of contract between Plaintiffs and Answering Defendant. {00017065.} -13- 13 of 26 AS FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 65. Plaintiffs never purchased, directly or indirectly, any asbestos-containing product or materials from Answering Defendant, nor did Plaintiffs ever receive or rely upon any representation allegedly made by Answering Defendant. AS FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 66. Plaintiffs lacks capacity and/or standing to maintain a claim for relief against Answering Defendant with respect to injuries alleged to have been suffered by Plaintiffs. AS FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 67. To the extent that Plaintiffs were exposed to any product manufactured by Answering Defendant, which Answering Defendant denies, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiffs may have developed, thus requiring dismissal of the Complaint against Answering Defendant. AS FOR A FORTIETH AFFIRMATIVE DEFENSE 68. Plaintiffs' claims are barred because of Plaintiffs' failure to join necessary and indispensable parties. AS FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 69. To the extent that Plaintiffs are entitled to damages, which Basic denies, Answering Defendant is entitled to a set-off for all Workers' Compensation payments received by Plaintiffs. AS FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 70. To the extent that any injury relating to the Plaintiffs occurred in the {00017065.} -14- 14 of 26 context of an employer/employee relationship, claims for said injuries are barred by the Workers' Compensation Act. AS FOR A FORTY-THIRD AFFIRMATIVE DEFENSE 71. In accordance with CPLR 1601, Answering Defendant's liability for non-economic loss is limited to its equitable share of the total liability for non-economic loss. AS FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE 72. In accordance with CPLR 4545(c), Answering Defendant is entitled to a set-off for any past or future costs or expenses incurred or to be incurred by Plaintiffs for medical care, custodial care of rehabilitation services, loss of earnings or other economic loss, which has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source. AS FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE 73. Plaintiffs' action is barred by the government contractor's defense because Answering Defendant was a contractor supplying materials, labor and or services to the United States Government. AS FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE 74. ,At all relevant times, the state of the medical, scientific, and industrial knowledge, the state of the art, practice, and prevailing industry standards regarding asbestos-containing products was such that Answering Defendant neither knew, had reason to know, nor could have known of any foreseeable or significant risk or harm to Plaintiffs in the normal or expected use of Answering Defendant's products. {00017065.} -15- 15 of 26 AS FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE 75. At all times relevant to this litigation, Answering Defendant complied with all applicable law, regulations and standards. AS FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE 76. Any injuries sustained by Plaintiffs resulted from Plaintiffs' alleged use of or exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance with mandatory specifications established by persons or entities other than Answering Defendant, including, without limitation, agencies, agents and departments of the United States, which persons or entities possessed, at the time of such manufacture or sale, knowledge equal to or greater than that of Answering Defendant concerning the properties and characteristics of asbestos and asbestos-containing products. AS FOR A FORTY-NINTH AFFIRMATIVE DEFENSE 77. Any asbestos-containing Answering Defendant products were supplied according to the purchaser's or user's specifications and standards. AS FOR A FIFTIETH AFFIRMATIVE DEFENSE 78. Answering Defendant was under no legal duty to warn Plaintiffs of any hazards from the use of any asbestos-containing products. The actual purchasers and/or those under the purchasers' control, Plaintiffs' employer(s), and the owners and lessors of the properties at which Plaintiff allege exposure to such products, were in a far better position to warn Plaintiffs and, if any such warning was legally required, which is expressly denied; their failure to do so was a superseding and proximate cause of Plaintiffs' alleged injury. {00017065.} -16- 16 of 26 AS FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE 79. Plaintiffs were reasonably and adequately warned of any alleged risks associated with the use of or exposure to asbestos-containing products. AS FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE 80. Timely and/or proper notice was not given to Answering Defendant as to any alleged breach of warranty. AS FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE 81. To the extent Plaintiffs' claims are based on an alleged breach of warranty, Plaintiffs did not rely on any warranty. AS FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE 82. This defendant is not liable to the Plaintiffs for the damages alleged in the Complaint because such damages are excluded and not recoverable under express warranty. AS FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE 83. This defendant denies that the asbestos products alleged in the Plaintiffs' Complaint are products within the meaning and scope of the Restatement of Torts §402A and as such, the Complaint fail to state a cause of action in strict products liability. AS FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE 84. Any oral warranties upon which Plaintiffs allegedly relied are inadmissable under the Statute of Frauds. AS FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE 85. Any claims by Plaintiffs for exemplary and/or punitive damages are barred {00017065.} -17- 17 of 26 because such damages are not recoverable or warranted. AS FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE 86. Answering Defendant's conduct was not reckless, malicious, and willful or grossly negligent, and consequently, Plaintiffs are not entitled to exemplary and/or punitive damages. AS FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE 87. Any claim for punitive damages is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, as Article I, Section 6 of the New York State Constitution. AS FOR A SIXTIETH AFFIRMATIVE DEFENSE 88. Any claim for punitive damages is barred by the ex post.facto clause of Article I, Section 10 of the United States Constitution. AS FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE 89. Any claim for punitive damages is barred by the proscription of Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessiveness. AS FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE 90. To the extent the law of any other jurisdiction is applicable to this action, any demand for punitive damages is barred by the applicable proscriptions of the constitution of such jurisdiction. AS FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE 91. All defenses which have been or will be asserted by other Defendants in {00017065.} -18- 18 of 26 this action are adopted and incorporated by reference as if fully set forth herein. In addition, Answering Defendant will rely upon any and all other further defenses which become available or appear during discovery in this action and hereby specifically reserves its right to amend its answer for the purpose of asserting any such additional affirmative defenses. AS FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE 92. To the extent that Answering Defendant conformed to the scientific knowledge and research data available throughout the industry and scientific community, Answering Defendant has fulfilled its obligations, if any, herein, and Plaintiffs' claims should be barred, in whole or in part. AS FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE 93. At all times material hereto, that 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 allegedly containing asbestos when used in the manner and purpose described by the Plaintiffs, and therefore, there was no duty to Answering Defendant to know of any such character or nature as to warn Plaintiffs or others similarly situated. AS FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE 94. Defendant cannot be held liable under principles of strict tort liability because products manufactured and/or products which left defendant's possession did so prior to the enactment of New York law regarding strict liability. {00017065.} -19- 19 of 26 AS FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE 95. Plaintiffs' purported exposure to asbestos occurred on a federal enclave. All claims arising from alleged incidents on federal enclaves must be determined in accordance with federal laws. AS FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE 96. The design, construction, maintenance, and all safety aspects of the equipment at issue implicates government contracts that give rise to federal laws, including but not limited to the War Powers Acts. AS FOR A SIXTY-NINTHAFFIRMATIVE DEFENSE 97. Answering Defendant acted under the authority of an officer or agency of the United States, within the meaning of 28 U.S.C. § 1442(a)(l). Answering Defendant acted under the direction, control and demand of the U.S. Government, the Secretary of the Navy or its/his delegee based on extensive and strict government design specifications. AS FOR A SEVENTIETH AFFIRMATIVE DEFENSE 98. The government mandated precise specifications regarding the products it needed, and Answering Defendant conformed to those specifications. Answering Defendant cannot be liable to a third party in tort if the government approved reasonably precise specifications and Answering Defendant conformed to those specification. AS FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE 99. Pursuant to the Defense Production Act, Answering Defendant cannot {00017065.} -20- 20 of 26 be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to the Defense Production Act. AS AND FOR A CROSS-CLAIM AGAINST EACH OF THE OTHER DEFENDANTS 100. If damages were sustained at the time(s) and place(s) set forth in the Complaint through any carelessness, recklessness and/or negligence other than that of Plaintiffs, including, but not limited to, the manufacture and distribution of asbestos-containing products, breach of warranty or misrepresentations, either express or implied, and/or through strict liability in tort, such damages, in whole or in part, will have been caused and brought about by reason of the carelessness, recklessness and/or negligence of each of the other Defendants named in this action. 101. If Plaintiffs should recover a judgment against Answering Defendant, by operation oflaw or otherwise, Answering Defendant will be entitled to judgment, contribution and/or indemnification, in whole or in part, from each of the other Defendants named in this action, their agents, servants and/or employees, by reason of their carelessness, recklessness, and/or negligence for the amount of any such recovery, in accordance with principles of law regarding apportionment of fault and damages, along with costs, disbursements and reasonable expenses of the investigation and defense of this action, including reasonable attorney's fees. WHEREFORE, Defendant, Basic, Inc., demands judgment dismissing the Complaint as to it, together with the costs and disbursements of this action, and, to the extent of any recovery by Plaintiffs against Basic, Inc. herein, further demands judgment for contribution {00017065.} -21- 21 of 26 and/or indemnification against each of the other defendants named in the Complaint together with Basic, Inc.' s costs and disbursements in this action. ANSWER TO ALL CROSS-CLAIMS Answering Defendant hereby answers the cross-claims of each of the other defendants named in this action, however asserted or alleged, and says: 102. All cross-claims for contribution alleged against Answering Defendant by any party Defendant are denied. 103. All cross-claims for indemnification alleged against Answering Defendant by any party Defendant are denied. 104. All cross-claims for contractual indemnification alleged against Answering Defendant by any party Defendant are denied. WHEREFORE, Defendant Basic, Inc. demands judgment in its favor and against all other Defendants and requests the Court to dismiss all cross-claims filed against Basic, Inc. with prejudice and award Basic, Inc. its costs, attorney's fees and disbursements in this action. Dated: New York, New York March 25, 2016 By: '1-~- Mktthew E. Endlich, Esq. Attorneys for Defendant Basic, Inc. 150 Broadway, Suite 600 New York, New York 10038 (212) 791-0285 {00017065.} -22- 22 of 26 To: Joseph W. Belluck, Esq. Belluck & Fox, LLP Attorney for Plaintiff 546 Fifth A venue, 4th Floor New York, NY 10036 (212) 681-1575