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INDEX NO. 190280/2015
(FILED: NEW YORK COUNTY CLERK 1070872015 09:23 AM
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 10/08/2015
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NEW YORK
ROBERT GODFREY and SHIRLEY Index No.: 190280/2015
GODFREY,
Plaintiffs, VERIFIED ANSWER OF DEFENDANT
BURNHAM LLC F/K/A BURNHAM
-against- CORPORATION (IMPROPERLY PLED
AS BURNHAM CORPORATION) TO
A. O. SMITH WATER PRODUCTS., et al., VERIFIED COMPLAINT
Defendants.
Defendant, Burnham LLC f/k/a Burnham Corporation (improperly pled as Burnham
Corporation) (hereinafter “Burnham” or “defendant”), hereby responds to the Verified
Complaint for Personal Injuries as follows:
1 Defendant lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph | of the Verified Complaint, and, accordingly,
leaves plaintiffs to their proofs.
2 Defendant denies the allegations of Paragraph 2 of the Verified Complaint to the
extent they are directed towards it.
3 There are no allegations contained in Paragraph 3 of the Verified Complaint and,
accordingly, no response is made.
4 Except to admit that it has conducted business in the State of New York,
defendant denies the allegations of Paragraph 4 of the Verified Complaint to the extent they are
directed towards it.
5 The allegations of Paragraphs S through 10 of the Verified Complaint are not
directed toward this defendant, and, accordingly, no response is made to them.
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6. Except to admit that defendant has conducted business in the State of New York,
defendant denies the allegations of Paragraph 11 of the Verified Complaint to the extent they are
directed towards it.
7 The allegations of Paragraphs 12 through 42 of the Verified Complaint are not
directed toward this defendant, and, accordingly, no response is made to them.
8. Except to admit that defendant has conducted business in the State of New York,
defendant denies the allegations of Paragraph 43 of the Verified Complaint to the extent they are
directed towards it.
9 Defendant denies the allegations of Paragraphs 44 through 50 of the Verified
Complaint to the extent they are directed towards it.
AS AND FOR A FIRST CAUSE OF ACTION
SOUNDING IN NEGLIGENCE
10. In response to Paragraph 51 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs 1 through 50 of the Verified Complaint as if set
forth at length herein.
11. Defendant denies the allegations of Paragraphs 52 through 59 of the Verified
Complaint to the extent they are directed towards it.
AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF
WARRANTY
12. In response to Paragraph 60 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs 1 through 59 of the Verified Complaint as if set
forth at length herein.
13. Defendant denies the allegations of Paragraphs 61 through 64 of the Verified
Complaint to the extent they are directed towards it.
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AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT
LIABILITY
14, In response to Paragraph 65 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs | through 64 of the Verified Complaint as if set
forth at length herein.
15. Defendant denies the allegations of Paragraphs 66 through 74 of the Verified
Complaint to the extent they are directed towards it.
AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS
16. In response to Paragraph 75 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs 1 through 74 of the Verified Complaint as if set
forth at length herein.
17. Defendant denies the allegations of Paragraphs 76 through 93 of the Verified
Complaint to the extent they are directed towards it.
AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
METROPOLITAN LIFE INSURANCE COMPANY
18. In response to Paragraph 94 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs 1 through 93 of the Verified Complaint as if set
forth at length herein.
19. The allegations of Paragraphs 95 through 101 of the Verified Complaint are not
directed toward this defendant, and, accordingly, no response is made to them.
AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
COLLECTIVE LIABILITY/CONCERT OF ACTION
20. In response to Paragraph 102 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs | through 101 of the Verified Complaint as if
set forth at length herein.
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21. Defendant denies the allegations of Paragraphs 103 through 117 of the Verified
Complaint to the extent they are directed towards it.
AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT
CONTRACTORS
22. In response to Paragraph 118 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs 1 through 117 of the Verified Complaint as if
set forth at length herein.
23, There are no allegations contained in Paragraph 119 of the Verified Complaint
and accordingly, no response is made.
24. Defendant denies the allegations of Paragraphs 120 through 131 of the Verified
Complaint to the extent they are directed towards it.
AS AND FOR AN EIGHTH CAUSE OF ACTION
FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
25. In response to Paragraph 132 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs | through 131 of the Verified Complaint as if
set forth at length herein.
26. Defendant denies the allegations of Paragraphs 133 through 147 of the Verified
Complaint to the extent they are directed towards it.
AS AND FOR A NINTH CAUSE OF ACTION JOINT
AND SEVERAL LIABILITY
27. In response to Paragraph 148 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs | through 147 of the Verified Complaint as if
set forth at length herein.
28. Defendant denies the allegations of Paragraphs 149 through 160 of the Verified
Complaint to the extent they are directed towards it.
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AS AND FOR A TENTH CAUSE OF ACTION
PUNITIVE DAMAGES
29. In response to Paragraph 161 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs | through 160 of the Verified Complaint as if
set forth at length herein.
30. Defendant denies the allegations of Paragraph 162 of the Verified Complaint to
the extent they are directed towards it.
AS AND FOR A ELEVENTH CAUSE OF ACTION
SPOUSAL LOSS OF CONSORTIUM
31. In response to Paragraph 163 of the Verified Complaint, defendant repeats and
reiterates each and every response to Paragraphs 1 through 162 of the Verified Complaint as if
set forth at length herein.
32. Defendant lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in Paragraph 164 of the Verified Complaint, and, accordingly,
leaves plaintiffs to their proofs.
33. Defendant denies the allegations of Paragraph 165 of the Verified Complaint to
the extent they are directed towards it.
AFFIRMATIVE DEFENSES
FIRST SEPARATE DEFENSE
The answering defendant is free of any and all negligence.
SECOND SEPARATE DEFENSE
Damages, if any, were the result of the sole negligence of the plaintiffs.
THIRD SEPARATE DEFENSE
Damages, if any, which may have been sustained by the plaintiffs, and for which this
defendant may become liable, were the result of the actions of third-parties over whom
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the answering defendant exercised no control and, therefore, plaintiffs are barred from any
recovery against the answering defendant,
FOURTH SEPARATE DEFENSE
Any damages or injuries, which may have been sustained by the plaintiffs, were the result
of the sole negligence of the remaining defendant and/or third-party defendant.
FIFTH SEPARATE DEFENSE
Plaintiffs were aware of the facts, circumstances and conditions existing at the time and
place set forth in the Complaint and voluntarily assumed all risk arising therefrom.
SIXTH SEPARATE DEFENSE
The answering defendant did not make, nor did they breach any warranty to the plaintiffs.
SEVENTH SEPARATE DEFENSE
The incident and injury alleged in the Complaint were caused by the unauthorized,
unintended and improper use of the product complained of and as a result, there can be no
recovery.
EIGHTH SEPARATE DEFENSE
The answering defendant purchased or obtained a product from a reputable manufacturer,
and any defect therein was latent and not ascertainable by or upon a reasonable inspection.
NINTH SEPARATE DEFENSE
Any product which may have been supplied by this defendant was in a sealed container
and was sold without modification, change or alteration of any kind.
TENTH SEPARATE DEFENSE
Plaintiffs failed to give the defendant notice of alleged breach of warranty and damage as
required by law.
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ELEVENTH SEPARATE DEFENSE
Any liability which might otherwise be imposed upon the answering defendant is subject
to reduction or barred by virtue of the doctrine of comparative negligence.
TWELFTH SEPARATE DEFENSE
The answering defendant thereby invokes the provisions of Article 16 of the New York
CPLR and request that the jury therein be charged accordingly.
THIRTEENTH SEPARATE DEFENSE
The actions of the plaintiffs are barred by the Statute of Limitations.
FOURTEENTH SEPARATE DEFENSE
The Complaint fails to state a claim upon which relief can be granted as against the
answering defendant.
FIFTEENTH SEPARATE DEFENSE
The answering defendant reserves the right to move at any time prior to the trial date of the
above matter to dismiss the Complaint on the following grounds: (a) the court lacks jurisdiction
over the subject matter; (b) the court lacks personal jurisdiction of this defendant; (c) the
Complaint fails to state a claim upon which relief can be granted.
SIXTEENTH SEPARATE DEFENSE
This defendant complied with the state of the art and are, therefore, immune from suit.
SEVENTEENTH SEPARATE DEFENSE
The doctrine of strict liability in tort does not apply to this answering defendant.
EIGHTEENTH SEPARATE DEFENSE
The plaintiffs’ employer and employers of others are primarily, solely and exclusively
liable for the within claims.
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NINETEENTH SEPARATE DEFENSE
The discovery rule does not apply and plaintiffs are barred from maintaining the within
suit.
TWENTIETH SEPARATE DEFENSE
Any asbestos or asbestos-containing products which this defendant may have supplied
were de minimis in light of the total sales by all sources and, therefore, plaintiffs fails to state a
claim against the answering defendant.
TWENTY-FIRST SEPARATE DEFENSE
Any damage or injury that may have been suffered by the plaintiffs was not proximately
caused by the conduct of the answering defendant.
TWENTY-SECOND SEPARATE DEFENSE
This defendant never manufactured, sold, or distributed any asbestos-containing material
which caused plaintiffs’ exposure to asbestos.
TWENTY-THIRD SEPARATE DEFENSE
This defendant is an improper party in this litigation.
TWENTY-FOURTH SEPARATE DEFENSE
All claims brought under New York Law, L.1986 c. 682 Section 4 (enacted July 31, 1986)
are time-barred in that said statute is in violation of the Constitution of the United States and the
Constitution of the State of New York.
TWENTY-FIFTH SEPARATE DEFENSE
The answering defendant has no knowledge or reason to know of any alleged risks
associated with asbestos and/or asbestos-containing products at any time during the periods
complained of.
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TWENTY-SIXTH SEPARATE DEFENSE
Exposure to asbestos fibers attributable to this defendant 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-SEVENTH SEPARATE DEFENSE
Plaintiffs’ cause of action for exemplary or punitive damages are barred because such
damages are not recoverable or warranted in this action.
TWENTY-EIGHTH SEPARATE DEFENSE
Plaintiffs’ demand for punitive damages is barred by the due process clauses of the
Fourteenth Amendment of the United States Constitution and the New York State Constitution.
TWENTY-NINTH SEPARATE DEFENSE
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 fines.
THIRTIETH SEPARATE DEFENSE
Plaintiffs’ demand 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, and Article I, Section 6 of the New York State Constitution.
THIRTY-FIRST SEPARATE DEFENSE
If plaintiffs sustained injuries in the manner alleged, all of which has been denied by this
defendant, the liability of this defendant if any, shall be limited in accordance with Article 16 of
the Civil Practice Law and Rules.
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THIRTY-SECOND SEPARATE DEFENSE
At all times relevant to this litigation, the agents, servants and/or employees of this
defendant utilized proper methods in the conduct of their operations, in conformity with the
available knowledge and research of the scientific and industrial communities.
THIRTY-THIRD SEPARATE DEFENSE
Plaintiffs contributed to the illness, either in whole or in part, by exposure to or the use of
tobacco products and/or other substances, products, medications or drugs.
THIRTY-FOURTH SEPARATE DEFENSE
To the extent any plaintiffs therein brings suit in a representative capacity, such plaintiffs
has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York
Estate Powers and Trusts Law § 5-41.
THIRTY-FIFTH SEPARATE DEFENSE
The purported service upon the answering defendant in this action was not proper, and as a
result, this Court lacks personal jurisdiction over the answering defendant.
THIRTY-SIXTH SEPARATE DEFENSE
Upon information and belief, any alleged injuries were caused by a pre-existing or
unrelated medical condition, disease or illness of the plaintiffs.
THIRTY-SEVENTH SEPARATE DEFENSE
Plaintiffs’ claims are barred by the doctrines of laches, waiver and/or estoppel.
THIRTY-EIGHTH SEPARATE DEFENSE
The plaintiffs’ claims are barred because any product allegedly associated with the
swering defendant was substantially altered after it left the manufacturer’s possession and
control.
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THIRTY-NINTH SEPARATE DEFENSE
The answering defendant has no legal duty of care to plaintiffs.
FORTIETH SEPARATE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, to the extent that plaintiffs failed to
mitigate damages.
FORTY-FIRST SEPARATE DEFENSE
In the event that plaintiffs recover a verdict or judgment against the answering defendant,
then said verdict or judgment must be reduced by those amounts which have been paid or
indemnified or will, with reasonable certainty, be paid or indemnified to any plaintiffs, in whole
or in part, for any past or future claimed economic loss, from any collateral source including
insurance, social security, workers compensation or employees benefit programs.
FORTY-SECOND SEPARATE DEFENSE
The answering defendant thereby invokes the provisions of the New York CPLR §§ 4545
and requests that any damage award, if any, in favor of any plaintiffs be reduced accordingly.
FORTY-THIRD SEPARATE DEFENSE
Plaintiffs have improperly joined claims of multiple parties in violation of Articles 6 and
10 of the New York CPLR and all improperly joined or misjoined parties and/or claims must be
severed and tried separately.
FORTY-FOURTH SEPARATE DEFENSE
The answering defendant thereby invokes the provisions of Article 50-B of the New York
CPLR.
FORTY-FIFTH SEPARATE DEFENSE
In the event of a finding of any liability in favor of plaintiffs, or settlement, or judgment
against any defendant, then the answering defendant should be held liable, if at all, only for the
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proportion of damages sustained by plaintiffs, if any, as is determined by the jury to be the result
of the allocable percentage of fault or negligence on the part of the answering defendant.
FORTY-SIXTH SEPARATE DEFENSE
To the extent that plaintiffs allege claims based upon oral warranties or representations,
plaintiffs’ claims are barred by the Statute of Frauds.
FORTY-SEVENTH SEPARATE DEFENSE
The answering defendant cannot be liable to plaintiffs as alleged in the Complaint by
operation of the doctrines of superseding and/or intervening cause.
FORTY-EIGHTH SEPARATE DEFENSE
The answering defendant intends to rely upon such other defenses as may be available or
apparent during discovery proceedings in this case and thereby reserve the right to amend the
Answer to plead said defenses.
FORTY-NINTH SEPARATE DEFENSE
No acts or omissions of this defendant proximately caused any damages.
FIFTIETH SEPARATE DEFENSE
Any asbestos-containing product of this answering defendant that may have been present
at plaintiffs’ job locations were placed in any such buildings upon specification, approval or at
the instruction of governmental or legislative agencies or bodies.
FIFTY-FIRST SEPARATE DEFENSE
All implied warranties, including the warranties of merchantability and fitness for a
particular purpose, were excluded at the time of the sale, if any, of the answering defendant's
product.
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FIFTY-SECOND SEPARATE DEFENSE
No implied warranties, including the warranties of merchantability and fitness for a
particular purpose, became part of the basis of the bargain in the sale, if any, of the answering
defendant’s product.
FIFTY-THIRD SEPARAT: FENSE
This defendant is not liable to plaintiffs for any damages alleged in the Complaint because
such damages are excluded and not recoverable under express warranty.
FIFTY-FOURTH SEPARATE DEFENSE
The plaintiffs did not directly or indirectly purchase any asbestos-containing products or
materials from the answering defendant and the plaintiffs did not either receive or rely upon any
representation or warranty allegedly made by the answering defendant.
FIFTY-FIFTH SEPARATE DEFENSE
Finished asbestos-containing products are not unreasonably dangerous as a matter of law.
FIFTY-SIXTH SEPARATE DEFENSE
None of the alleged injury or damage was foreseeable at the time of the acts or omissions
complained of in plaintiffs’ Complaint.
FIFTY-SEVENTH SEPARATE DEFENSE
The answering defendant were under no duty to warn purchasers, those who performed
work, or those under their control who were in a better position to warn; if warning was required,
their failure to do so was a superseding proximate cause of injury.
FIFTY-EIGHTH SEPARATE DEFENSE
Plaintiffs were warned of risk of exposure to use of asbestos-containing materials.
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FIFTY-NINTH SEPARATE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of collateral estoppel.
SIXTIETH SEPARATE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of res judicata.
SIXTY-FIRST SEPARATE DEFENSE
Plaintiffs’ claims are barred because the Complaint is defective as a matter of law.
SIXTY-SECOND SEPARATE DEFENSE
Pursuant to General Obligations Law Section 15-108, this defendant is entitled to set-off.
SIXTY-THIRD SEPARATE DEFENSE
If the causes of action, based upon statutory liability as pleaded in Complaint, are based
upon expressed or implied warranties and/or representations, then the alleged breaches thereof,
as against this answering defendant, are legally insufficient by reason of their failure to allege
privity of contract between the plaintiffs and this answering defendant.
SIXTY-FOURTH SEPARATE DEFENSE
That insofar as the causes of action therein considered separately occurred before
September 1, 1975, such causes of action are barred by reason of the contributory negligence of
the plaintiffs.
SLXTY-FIFTH SEPARATE DEFENSE
The plaintiffs are barred from any recovery against this answering defendant by the
doctrine of assumption of the risk.
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SIXTY-SIXTH SEPARATE DEFENSE
In the event that plaintiffs were employed by this answering defendant, such plaintiffs’
sole remedy is under the Workers’ Compensation Law and said plaintiffs cannot recover from
this defendant in this action.
SIXTY-SEVENTH SEPARATE DEFENSE
That the plaintiffs’ employer(s) were sophisticated purchasers and/or users of the products
referred to in plaintiffs’ Complaint and upon who devolved all responsibility for such use.
SIXTY-EIGHTH SEPARATE DEFENSE
This answering defendant reserves the right to amend its answer and to assert additional
crossclaims and/or otherwise counterclaims as to any party named therein, who may have, is or
will be declared bankrupt or otherwise files a petition under the Bankruptcy Code, pursuant to
Article 16 of the N.Y.Civ.Prac.L. & R. and to the decision of Justice Helen E. Freedman,
presiding judge for the New York city Asbestos Litigation (October 28, 2002).
SIXTY-NINTH SEPARATE DEFENSE
Plaintiffs’ claims are barred because of plaintiffs’ failure to join necessary and
indispensable parties.
SEVENTIETH SEPARATE DEFENSE
No enterprise liability lies against the answering defendant therein.
SEVENTY-FIRST SEPARATE DEFENSE
This defendant did not act with recklessness, malice or wantonness, and accordingly,
plaintiffs may not recover therein any exemplary or punitive damages against this defendant.
SEVENTY-SECOND SEPARATE DEFENSE
That insofar as the plaintiffs allege as against this answering defendant, any willful and
wanton misconduct, and that this defendant allegedly knowingly and intentionally sold a product
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or products that they knew to be unreasonably dangerous, all of which this defendant denies, any
such cause of action or causes of action accrued more than one year prior to the commencement
of this lawsuit and are time-barred.
SEVENTY-THIRD SEPARATE DEFENSE
That at all times material thereto, 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 this
answering defendant to know of any such character or nature or to warn plaintiffs or others
similarly situated.
SEVENTY-FOURTH SEPARATE DEFENSE
To the extent that this answering defendant conformed to the scientific knowledge and
research data available through the industry and scientific comnvunity, this defendant has
fulfilled its obligations, if any, therein and plaintiffs’ claims should be barred, in whole or in part.
SEVENTY-FIFTH SEPARATE DEFENSE
That plaintiffs have failed to state a cause of action upon which relief may be granted,
inasmuch as plaintiffs are unable to identify the manufacturer(s) of the substance allegedly
causing injury, and relief granted would deprive this defendant of its right to substantive and
procedural due process of law and equal protection under the law pursuant to the Fourteenth
Amendment of the Constitution of the United States.
SEVENTY-SIXTH SEPARATE DEFENSE
That the plaintiffs, their co-workers and employees misused, mistreated and misapplied the
product(s) designated as asbestos materials as alleged in Complaint and therefore liability found
against this defendant, if any, should be diminished in the proportion which the misuse, abuse,
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mistreatment and/or misapplication attributed to the plaintiffs and/or their co-workers and/or
employees bears to the conduct which caused the alleged injuries or damages.
SEVENTY-SEVENTH SEPARATE DEFENSE
That the causes of action asserted therein by the plaintiffs, who are unable to identify the
manufacturer of the alleged injury-causing product(s), fail to state a cause of action 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 this answering defendant’s constitutional rights as preserved for it by the
Fourteenth Amendment to the Constitution of the United States,
SEVENTY-EIGHTH SEPARATE DEFENSE
That the plaintiffs’ injuries were caused, either in whole or part, by the general condition,
quality and content of the air and/or environment in the New York metropolitan area.
SEVENTY-NINFH SEPARATE DEFENSE
That if it should be proved at the time of trial that any of the answering defendant’s
product(s) were furnished to plaintiffs’ employer(s) and/or to the United States Government, and
that plaintiffs came into contact with said product(s), which this defendant specifically denies,
then any product(s) processed, manufactured, produced, constructed, designed, tested, fashioned,
packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream
of commerce by this defendant which was or may have been furnished to plaintiffs’ employer(s)
and/or to the United States Government, and with which plaintiffs alleges she came or may have
come into contact was processed, manufactured, produced, constructed, designed, tested,
fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in
the stream of commerce were in strict conformity to the conditions specified, or to specifications
furnished by the plaintiffs’ employer(s) and/or the United States Government.
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EIGHTIETH SEPARATE DEFENSE
That to the extent that the causes pleaded by the plaintiffs therein fail to accord with the
Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiffs’
Complaint are barred.
EIGHTY-FIRST SEPARATE DEFENSE
That to the extent that plaintiffs relies 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) the answering defendant of its constitutional rights and is/are wholly void and
unenforceable.
EIGHTY-SECOND SEPARATE DEFENSE
That to the extent the plaintiffs seek punitive damages against this answering defendant,
and rely on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving and
maintaining the action, such damages are improper and are not authorized by law since this
statute does not revive any claims for punitive damages, leaving such claims time-barred in their
entirety.
EIGHTY-THIRD SEPARATE DEFENSE
That these actions and the causes pleaded by the plaintiffs therein are barred by virtue of
Article 1, Section 10 of the United States Constitution.
EIGHTY-FOURTH SEPARATE DEFENSE
That pursuant to the Case Management Order Section XVII, punitive damages are not
available in this action.
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EIGHTY-FIFTH SEPARATE DEFENSE
That plaintiffs’ demand for punitive damages are barred by the “ex post facto” clause of
the United States Constitution.
EIGHTY-SIXTH SEPARATE DEFENSE
That with respect to plaintiffs’ claim of a duty owed to their, this answering defendant
denies breaching any duty which they may have owned to the plaintiffs.
EIGHTY-SEVENTH SEPARATE DEFENSE
This answering defendant reserves the right to move for a severance of the various
allegations in the plaintiffs’ Complaint.
EIGHTY-EIGHTH SEPARATE DEFENSE
That plaintiffs-spouses’ loss of consortium claim(s) is/are barred as a matter of law
because the alleged asbestos exposure by the plaintiffs predates the date of the plaintiffs’ and
plaintiffs-spouses’ marriage.
EIGHTY-NINTH SEPARATE DEFENSE
To the extent that plaintiffs’ claims were discharged in Bankruptcy, this defendant has no
liability.
NINETIETH SEPARATE DEFENSE
If, at the time of trial, it is shown that plaintiffs used products manufactured, supplied,
distributed, or sold by the answering defendant, said products or a portion thereof were supplied
to, by, or on behalf of the United States Government, or if those products were supplied or sold
by the United States Government, the answering defendant raises any immunity from suit or
from liability as conferred by the United States Government, and specifically pleads the
government contractor defense.
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NINETY-FIRST SEPARATE DEFENSE
The answering defendant incorporates and adopts by reference any and all other and/or
additional defenses, raised or to be raised by any other party, and expressly reserves the right to
amend and supplement its defenses therein to assert additional defenses and to make further
admission upon completion of further investigation and discovery.
WHEREFORE, Defendant, Burnham LLC f/k/a Burnham Corporation (improperly pled
as Burnham Corporation) requests judgment in its favor dismissing the Verified Complaint and
for such other and further relief as the Court may deem just and proper.
CROSSCLAIMS
The defendant, Burnham LLC f/k/a Burnham Corporation (improperly pled as Burnham
Corporation) by way of crossclaim against each named co-defendant, says:
FIRST COUNT
Without admitting any liability therein, the answering defendant asserts that should
liability be found against said defendant, it is entitled to and hereby claims contribution from all
co-defendants.
SECOND COUNT
While this defendant denies that it is negligent or liable in any regard, it is certain that its
negligence or liability, if any, was passive, vicarious and imputed, whereas the negligence or
liability of the co-defendants was active and primary.
THIRD COUNT
While denying any negligence or liability in this action, this defendant says that if there
was any negligence or liability, then the negligence or liability of this defendant was secondary
only and the negligence or liability of the co-defendants herein was primary.
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Accordingly, the co-defendants are obligated by operation of law, contract and otherwise,
to indemnify this defendant and hold this defendant harmless from any and all claims which are
the subject of the Verified Complaint.
WHEREFORE, this defendant demands judgment by way of indemnity against the co-
defendants for any judgment, which may be entered in favor of the plaintiff against this
defendant.
ANSWER TO CROSSCLAIMS
The answering defendant denies any and all crossclaims filed or to be filed against it in
the within action.
JURY DEMAND
The answering defendant hereby demands a trial by jury on all issues.
Dated: New York, New York
October =; 2015
eten Antoniou McGowan, Esq.
Attorneys for Defendant
Burnham LLC f/k/a Burnham Corporation
(improperly pled as Burnham Corporation)
McELROY, DEUTSCH, MULVANEY &
CARPENTER, LLP
Wall Street Plaza, 24" Floor
88 Pine Street
New York, New York 10005
(212) 483-9490
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ATTORNEY’S VERIFICATION
The undersigned affirms the following statement to be true under penalties of perjury
pursuant to Rule 2106 of the Civil Practice Law and Rules.
That he is an attorney at law and an associate at the firm of MCELROY, DEUTSCH,
MULVANEY & CARPENTER, LLP, attorneys for defendant, Burnham LLC f/k/a Burnham
Corporation (improperly pled as Burnham Corporation).
That he has read the foregoing document and knows the contents thereof, and that the
same is true to the knowledge of your affirmant except as to the matters therein alleged upon
information and belief and that as to those matters he believes them to be true.
That the reason why this affirmation is being made by your affirmant and not the
defendant is that the defendant is a domestic corporation and does not maintain an office with an
officer having knowledge of the facts in the county where your affirmant’s firm maintains its
offices.
That the source of your affirmant’s information and the grounds of his belief as to all the
matters therein alleged upon information and belief are reports from and communication had
with said corporations.
Dated: New York, New York
October a 2015
Helen Antoniou McGowan, Esq.
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INDEX NO. 190280/2015 (FILED: NEW YORK COUNTY CLERK 1070872015 09:23 AM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 10/08/2015 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK ROBERT GODFREY and SHIRLEY Index No.: 190280/2015 GODFREY, Plaintiffs, VERIFIED ANSWER OF DEFENDANT BURNHAM LLC F/K/A BURNHAM -against- CORPORATION (IMPROPERLY PLED AS BURNHAM CORPORATION) TO A. O. SMITH WATER PRODUCTS., et al., VERIFIED COMPLAINT Defendants. Defendant, Burnham LLC f/k/a Burnham Corporation (improperly pled as Burnham Corporation) (hereinafter “Burnham” or “defendant”), hereby responds to the Verified Complaint for Personal Injuries as follows: 1 Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph | of the Verified Complaint, and, accordingly, leaves plaintiffs to their proofs. 2 Defendant denies the allegations of Paragraph 2 of the Verified Complaint to the extent they are directed towards it. 3 There are no allegations contained in Paragraph 3 of the Verified Complaint and, accordingly, no response is made. 4 Except to admit that it has conducted business in the State of New York, defendant denies the allegations of Paragraph 4 of the Verified Complaint to the extent they are directed towards it. 5 The allegations of Paragraphs S through 10 of the Verified Complaint are not directed toward this defendant, and, accordingly, no response is made to them. 2819239 6. Except to admit that defendant has conducted business in the State of New York, defendant denies the allegations of Paragraph 11 of the Verified Complaint to the extent they are directed towards it. 7 The allegations of Paragraphs 12 through 42 of the Verified Complaint are not directed toward this defendant, and, accordingly, no response is made to them. 8. Except to admit that defendant has conducted business in the State of New York, defendant denies the allegations of Paragraph 43 of the Verified Complaint to the extent they are directed towards it. 9 Defendant denies the allegations of Paragraphs 44 through 50 of the Verified Complaint to the extent they are directed towards it. AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE 10. In response to Paragraph 51 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs 1 through 50 of the Verified Complaint as if set forth at length herein. 11. Defendant denies the allegations of Paragraphs 52 through 59 of the Verified Complaint to the extent they are directed towards it. AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY 12. In response to Paragraph 60 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs 1 through 59 of the Verified Complaint as if set forth at length herein. 13. Defendant denies the allegations of Paragraphs 61 through 64 of the Verified Complaint to the extent they are directed towards it. 2819239 AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 14, In response to Paragraph 65 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs | through 64 of the Verified Complaint as if set forth at length herein. 15. Defendant denies the allegations of Paragraphs 66 through 74 of the Verified Complaint to the extent they are directed towards it. AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS 16. In response to Paragraph 75 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs 1 through 74 of the Verified Complaint as if set forth at length herein. 17. Defendant denies the allegations of Paragraphs 76 through 93 of the Verified Complaint to the extent they are directed towards it. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY 18. In response to Paragraph 94 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs 1 through 93 of the Verified Complaint as if set forth at length herein. 19. The allegations of Paragraphs 95 through 101 of the Verified Complaint are not directed toward this defendant, and, accordingly, no response is made to them. AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION 20. In response to Paragraph 102 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs | through 101 of the Verified Complaint as if set forth at length herein. 2819239 21. Defendant denies the allegations of Paragraphs 103 through 117 of the Verified Complaint to the extent they are directed towards it. AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS 22. In response to Paragraph 118 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs 1 through 117 of the Verified Complaint as if set forth at length herein. 23, There are no allegations contained in Paragraph 119 of the Verified Complaint and accordingly, no response is made. 24. Defendant denies the allegations of Paragraphs 120 through 131 of the Verified Complaint to the extent they are directed towards it. AS AND FOR AN EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS 25. In response to Paragraph 132 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs | through 131 of the Verified Complaint as if set forth at length herein. 26. Defendant denies the allegations of Paragraphs 133 through 147 of the Verified Complaint to the extent they are directed towards it. AS AND FOR A NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY 27. In response to Paragraph 148 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs | through 147 of the Verified Complaint as if set forth at length herein. 28. Defendant denies the allegations of Paragraphs 149 through 160 of the Verified Complaint to the extent they are directed towards it. 2819239 AS AND FOR A TENTH CAUSE OF ACTION PUNITIVE DAMAGES 29. In response to Paragraph 161 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs | through 160 of the Verified Complaint as if set forth at length herein. 30. Defendant denies the allegations of Paragraph 162 of the Verified Complaint to the extent they are directed towards it. AS AND FOR A ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF CONSORTIUM 31. In response to Paragraph 163 of the Verified Complaint, defendant repeats and reiterates each and every response to Paragraphs 1 through 162 of the Verified Complaint as if set forth at length herein. 32. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 164 of the Verified Complaint, and, accordingly, leaves plaintiffs to their proofs. 33. Defendant denies the allegations of Paragraph 165 of the Verified Complaint to the extent they are directed towards it. AFFIRMATIVE DEFENSES FIRST SEPARATE DEFENSE The answering defendant is free of any and all negligence. SECOND SEPARATE DEFENSE Damages, if any, were the result of the sole negligence of the plaintiffs. THIRD SEPARATE DEFENSE Damages, if any, which may have been sustained by the plaintiffs, and for which this defendant may become liable, were the result of the actions of third-parties over whom 2819239 the answering defendant exercised no control and, therefore, plaintiffs are barred from any recovery against the answering defendant, FOURTH SEPARATE DEFENSE Any damages or injuries, which may have been sustained by the plaintiffs, were the result of the sole negligence of the remaining defendant and/or third-party defendant. FIFTH SEPARATE DEFENSE Plaintiffs were aware of the facts, circumstances and conditions existing at the time and place set forth in the Complaint and voluntarily assumed all risk arising therefrom. SIXTH SEPARATE DEFENSE The answering defendant did not make, nor did they breach any warranty to the plaintiffs. SEVENTH SEPARATE DEFENSE The incident and injury alleged in the Complaint were caused by the unauthorized, unintended and improper use of the product complained of and as a result, there can be no recovery. EIGHTH SEPARATE DEFENSE The answering defendant purchased or obtained a product from a reputable manufacturer, and any defect therein was latent and not ascertainable by or upon a reasonable inspection. NINTH SEPARATE DEFENSE Any product which may have been supplied by this defendant was in a sealed container and was sold without modification, change or alteration of any kind. TENTH SEPARATE DEFENSE Plaintiffs failed to give the defendant notice of alleged breach of warranty and damage as required by law. 2819239 ELEVENTH SEPARATE DEFENSE Any liability which might otherwise be imposed upon the answering defendant is subject to reduction or barred by virtue of the doctrine of comparative negligence. TWELFTH SEPARATE DEFENSE The answering defendant thereby invokes the provisions of Article 16 of the New York CPLR and request that the jury therein be charged accordingly. THIRTEENTH SEPARATE DEFENSE The actions of the plaintiffs are barred by the Statute of Limitations. FOURTEENTH SEPARATE DEFENSE The Complaint fails to state a claim upon which relief can be granted as against the answering defendant. FIFTEENTH SEPARATE DEFENSE The answering defendant reserves the right to move at any time prior to the trial date of the above matter to dismiss the Complaint on the following grounds: (a) the court lacks jurisdiction over the subject matter; (b) the court lacks personal jurisdiction of this defendant; (c) the Complaint fails to state a claim upon which relief can be granted. SIXTEENTH SEPARATE DEFENSE This defendant complied with the state of the art and are, therefore, immune from suit. SEVENTEENTH SEPARATE DEFENSE The doctrine of strict liability in tort does not apply to this answering defendant. EIGHTEENTH SEPARATE DEFENSE The plaintiffs’ employer and employers of others are primarily, solely and exclusively liable for the within claims. 2819239 NINETEENTH SEPARATE DEFENSE The discovery rule does not apply and plaintiffs are barred from maintaining the within suit. TWENTIETH SEPARATE DEFENSE Any asbestos or asbestos-containing products which this defendant may have supplied were de minimis in light of the total sales by all sources and, therefore, plaintiffs fails to state a claim against the answering defendant. TWENTY-FIRST SEPARATE DEFENSE Any damage or injury that may have been suffered by the plaintiffs was not proximately caused by the conduct of the answering defendant. TWENTY-SECOND SEPARATE DEFENSE This defendant never manufactured, sold, or distributed any asbestos-containing material which caused plaintiffs’ exposure to asbestos. TWENTY-THIRD SEPARATE DEFENSE This defendant is an improper party in this litigation. TWENTY-FOURTH SEPARATE DEFENSE All claims brought under New York Law, L.1986 c. 682 Section 4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. TWENTY-FIFTH SEPARATE DEFENSE The answering defendant has no knowledge or reason to know of any alleged risks associated with asbestos and/or asbestos-containing products at any time during the periods complained of. 2819239 TWENTY-SIXTH SEPARATE DEFENSE Exposure to asbestos fibers attributable to this defendant 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-SEVENTH SEPARATE DEFENSE Plaintiffs’ cause of action for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. TWENTY-EIGHTH SEPARATE DEFENSE Plaintiffs’ demand for punitive damages is barred by the due process clauses of the Fourteenth Amendment of the United States Constitution and the New York State Constitution. TWENTY-NINTH SEPARATE DEFENSE 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 fines. THIRTIETH SEPARATE DEFENSE Plaintiffs’ demand 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, and Article I, Section 6 of the New York State Constitution. THIRTY-FIRST SEPARATE DEFENSE If plaintiffs sustained injuries in the manner alleged, all of which has been denied by this defendant, the liability of this defendant if any, shall be limited in accordance with Article 16 of the Civil Practice Law and Rules. 2819239 THIRTY-SECOND SEPARATE DEFENSE At all times relevant to this litigation, the agents, servants and/or employees of this defendant utilized proper methods in the conduct of their operations, in conformity with the available knowledge and research of the scientific and industrial communities. THIRTY-THIRD SEPARATE DEFENSE Plaintiffs contributed to the illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. THIRTY-FOURTH SEPARATE DEFENSE To the extent any plaintiffs therein brings suit in a representative capacity, such plaintiffs has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and Trusts Law § 5-41. THIRTY-FIFTH SEPARATE DEFENSE The purported service upon the answering defendant in this action was not proper, and as a result, this Court lacks personal jurisdiction over the answering defendant. THIRTY-SIXTH SEPARATE DEFENSE Upon information and belief, any alleged injuries were caused by a pre-existing or unrelated medical condition, disease or illness of the plaintiffs. THIRTY-SEVENTH SEPARATE DEFENSE Plaintiffs’ claims are barred by the doctrines of laches, waiver and/or estoppel. THIRTY-EIGHTH SEPARATE DEFENSE The plaintiffs’ claims are barred because any product allegedly associated with the swering defendant was substantially altered after it left the manufacturer’s possession and control. 2819239 10 THIRTY-NINTH SEPARATE DEFENSE The answering defendant has no legal duty of care to plaintiffs. FORTIETH SEPARATE DEFENSE Plaintiffs’ claims are barred, in whole or in part, to the extent that plaintiffs failed to mitigate damages. FORTY-FIRST SEPARATE DEFENSE In the event that plaintiffs recover a verdict or judgment against the answering defendant, then said verdict or judgment must be reduced by those amounts which have been paid or indemnified or will, with reasonable certainty, be paid or indemnified to any plaintiffs, in whole or in part, for any past or future claimed economic loss, from any collateral source including insurance, social security, workers compensation or employees benefit programs. FORTY-SECOND SEPARATE DEFENSE The answering defendant thereby invokes the provisions of the New York CPLR §§ 4545 and requests that any damage award, if any, in favor of any plaintiffs be reduced accordingly. FORTY-THIRD SEPARATE DEFENSE Plaintiffs have improperly joined claims of multiple parties in violation of Articles 6 and 10 of the New York CPLR and all improperly joined or misjoined parties and/or claims must be severed and tried separately. FORTY-FOURTH SEPARATE DEFENSE The answering defendant thereby invokes the provisions of Article 50-B of the New York CPLR. FORTY-FIFTH SEPARATE DEFENSE In the event of a finding of any liability in favor of plaintiffs, or settlement, or judgment against any defendant, then the answering defendant should be held liable, if at all, only for the 2819239 ll proportion of damages sustained by plaintiffs, if any, as is determined by the jury to be the result of the allocable percentage of fault or negligence on the part of the answering defendant. FORTY-SIXTH SEPARATE DEFENSE To the extent that plaintiffs allege claims based upon oral warranties or representations, plaintiffs’ claims are barred by the Statute of Frauds. FORTY-SEVENTH SEPARATE DEFENSE The answering defendant cannot be liable to plaintiffs as alleged in the Complaint by operation of the doctrines of superseding and/or intervening cause. FORTY-EIGHTH SEPARATE DEFENSE The answering defendant intends to rely upon such other defenses as may be available or apparent during discovery proceedings in this case and thereby reserve the right to amend the Answer to plead said defenses. FORTY-NINTH SEPARATE DEFENSE No acts or omissions of this defendant proximately caused any damages. FIFTIETH SEPARATE DEFENSE Any asbestos-containing product of this answering defendant that may have been present at plaintiffs’ job locations were placed in any such buildings upon specification, approval or at the instruction of governmental or legislative agencies or bodies. FIFTY-FIRST SEPARATE DEFENSE All implied warranties, including the warranties of merchantability and fitness for a particular purpose, were excluded at the time of the sale, if any, of the answering defendant's product. 2819239 12 FIFTY-SECOND SEPARATE DEFENSE No implied warranties, including the warranties of merchantability and fitness for a particular purpose, became part of the basis of the bargain in the sale, if any, of the answering defendant’s product. FIFTY-THIRD SEPARAT: FENSE This defendant is not liable to plaintiffs for any damages alleged in the Complaint because such damages are excluded and not recoverable under express warranty. FIFTY-FOURTH SEPARATE DEFENSE The plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from the answering defendant and the plaintiffs did not either receive or rely upon any representation or warranty allegedly made by the answering defendant. FIFTY-FIFTH SEPARATE DEFENSE Finished asbestos-containing products are not unreasonably dangerous as a matter of law. FIFTY-SIXTH SEPARATE DEFENSE None of the alleged injury or damage was foreseeable at the time of the acts or omissions complained of in plaintiffs’ Complaint. FIFTY-SEVENTH SEPARATE DEFENSE The answering defendant were under no duty to warn purchasers, those who performed work, or those under their control who were in a better position to warn; if warning was required, their failure to do so was a superseding proximate cause of injury. FIFTY-EIGHTH SEPARATE DEFENSE Plaintiffs were warned of risk of exposure to use of asbestos-containing materials. 2819239 13 FIFTY-NINTH SEPARATE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of collateral estoppel. SIXTIETH SEPARATE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of res judicata. SIXTY-FIRST SEPARATE DEFENSE Plaintiffs’ claims are barred because the Complaint is defective as a matter of law. SIXTY-SECOND SEPARATE DEFENSE Pursuant to General Obligations Law Section 15-108, this defendant is entitled to set-off. SIXTY-THIRD SEPARATE DEFENSE If the causes of action, based upon statutory liability as pleaded in Complaint, are based upon expressed or implied warranties and/or representations, then the alleged breaches thereof, as against this answering defendant, are legally insufficient by reason of their failure to allege privity of contract between the plaintiffs and this answering defendant. SIXTY-FOURTH SEPARATE DEFENSE That insofar as the causes of action therein considered separately occurred before September 1, 1975, such causes of action are barred by reason of the contributory negligence of the plaintiffs. SLXTY-FIFTH SEPARATE DEFENSE The plaintiffs are barred from any recovery against this answering defendant by the doctrine of assumption of the risk. 2819239 14 SIXTY-SIXTH SEPARATE DEFENSE In the event that plaintiffs were employed by this answering defendant, such plaintiffs’ sole remedy is under the Workers’ Compensation Law and said plaintiffs cannot recover from this defendant in this action. SIXTY-SEVENTH SEPARATE DEFENSE That the plaintiffs’ employer(s) were sophisticated purchasers and/or users of the products referred to in plaintiffs’ Complaint and upon who devolved all responsibility for such use. SIXTY-EIGHTH SEPARATE DEFENSE This answering defendant reserves the right to amend its answer and to assert additional crossclaims and/or otherwise counterclaims as to any party named therein, who may have, is or will be declared bankrupt or otherwise files a petition under the Bankruptcy Code, pursuant to Article 16 of the N.Y.Civ.Prac.L. & R. and to the decision of Justice Helen E. Freedman, presiding judge for the New York city Asbestos Litigation (October 28, 2002). SIXTY-NINTH SEPARATE DEFENSE Plaintiffs’ claims are barred because of plaintiffs’ failure to join necessary and indispensable parties. SEVENTIETH SEPARATE DEFENSE No enterprise liability lies against the answering defendant therein. SEVENTY-FIRST SEPARATE DEFENSE This defendant did not act with recklessness, malice or wantonness, and accordingly, plaintiffs may not recover therein any exemplary or punitive damages against this defendant. SEVENTY-SECOND SEPARATE DEFENSE That insofar as the plaintiffs allege as against this answering defendant, any willful and wanton misconduct, and that this defendant allegedly knowingly and intentionally sold a product 2819239 15 or products that they knew to be unreasonably dangerous, all of which this defendant denies, any such cause of action or causes of action accrued more than one year prior to the commencement of this lawsuit and are time-barred. SEVENTY-THIRD SEPARATE DEFENSE That at all times material thereto, 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 this answering defendant to know of any such character or nature or to warn plaintiffs or others similarly situated. SEVENTY-FOURTH SEPARATE DEFENSE To the extent that this answering defendant conformed to the scientific knowledge and research data available through the industry and scientific comnvunity, this defendant has fulfilled its obligations, if any, therein and plaintiffs’ claims should be barred, in whole or in part. SEVENTY-FIFTH SEPARATE DEFENSE That plaintiffs have failed to state a cause of action upon which relief may be granted, inasmuch as plaintiffs are unable to identify the manufacturer(s) of the substance allegedly causing injury, and relief granted would deprive this defendant of its right to substantive and procedural due process of law and equal protection under the law pursuant to the Fourteenth Amendment of the Constitution of the United States. SEVENTY-SIXTH SEPARATE DEFENSE That the plaintiffs, their co-workers and employees misused, mistreated and misapplied the product(s) designated as asbestos materials as alleged in Complaint and therefore liability found against this defendant, if any, should be diminished in the proportion which the misuse, abuse, 2819239 16 mistreatment and/or misapplication attributed to the plaintiffs and/or their co-workers and/or employees bears to the conduct which caused the alleged injuries or damages. SEVENTY-SEVENTH SEPARATE DEFENSE That the causes of action asserted therein by the plaintiffs, who are unable to identify the manufacturer of the alleged injury-causing product(s), fail to state a cause of action 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 this answering defendant’s constitutional rights as preserved for it by the Fourteenth Amendment to the Constitution of the United States, SEVENTY-EIGHTH SEPARATE DEFENSE That the plaintiffs’ injuries were caused, either in whole or part, by the general condition, quality and content of the air and/or environment in the New York metropolitan area. SEVENTY-NINFH SEPARATE DEFENSE That if it should be proved at the time of trial that any of the answering defendant’s product(s) were furnished to plaintiffs’ employer(s) and/or to the United States Government, and that plaintiffs came into contact with said product(s), which this defendant specifically denies, then any product(s) processed, manufactured, produced, constructed, designed, tested, fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream of commerce by this defendant which was or may have been furnished to plaintiffs’ employer(s) and/or to the United States Government, and with which plaintiffs alleges she came or may have come into contact was processed, manufactured, produced, constructed, designed, tested, fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream of commerce were in strict conformity to the conditions specified, or to specifications furnished by the plaintiffs’ employer(s) and/or the United States Government. 2819239 17 EIGHTIETH SEPARATE DEFENSE That to the extent that the causes pleaded by the plaintiffs therein fail to accord with the Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiffs’ Complaint are barred. EIGHTY-FIRST SEPARATE DEFENSE That to the extent that plaintiffs relies 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) the answering defendant of its constitutional rights and is/are wholly void and unenforceable. EIGHTY-SECOND SEPARATE DEFENSE That to the extent the plaintiffs seek punitive damages against this answering defendant, and rely on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving and maintaining the action, such damages are improper and are not authorized by law since this statute does not revive any claims for punitive damages, leaving such claims time-barred in their entirety. EIGHTY-THIRD SEPARATE DEFENSE That these actions and the causes pleaded by the plaintiffs therein are barred by virtue of Article 1, Section 10 of the United States Constitution. EIGHTY-FOURTH SEPARATE DEFENSE That pursuant to the Case Management Order Section XVII, punitive damages are not available in this action. 2819239 18 EIGHTY-FIFTH SEPARATE DEFENSE That plaintiffs’ demand for punitive damages are barred by the “ex post facto” clause of the United States Constitution. EIGHTY-SIXTH SEPARATE DEFENSE That with respect to plaintiffs’ claim of a duty owed to their, this answering defendant denies breaching any duty which they may have owned to the plaintiffs. EIGHTY-SEVENTH SEPARATE DEFENSE This answering defendant reserves the right to move for a severance of the various allegations in the plaintiffs’ Complaint. EIGHTY-EIGHTH SEPARATE DEFENSE That plaintiffs-spouses’ loss of consortium claim(s) is/are barred as a matter of law because the alleged asbestos exposure by the plaintiffs predates the date of the plaintiffs’ and plaintiffs-spouses’ marriage. EIGHTY-NINTH SEPARATE DEFENSE To the extent that plaintiffs’ claims were discharged in Bankruptcy, this defendant has no liability. NINETIETH SEPARATE DEFENSE If, at the time of trial, it is shown that plaintiffs used products manufactured, supplied, distributed, or sold by the answering defendant, said products or a portion thereof were supplied to, by, or on behalf of the United States Government, or if those products were supplied or sold by the United States Government, the answering defendant raises any immunity from suit or from liability as conferred by the United States Government, and specifically pleads the government contractor defense. 2819239 19 NINETY-FIRST SEPARATE DEFENSE The answering defendant incorporates and adopts by reference any and all other and/or additional defenses, raised or to be raised by any other party, and expressly reserves the right to amend and supplement its defenses therein to assert additional defenses and to make further admission upon completion of further investigation and discovery. WHEREFORE, Defendant, Burnham LLC f/k/a Burnham Corporation (improperly pled as Burnham Corporation) requests judgment in its favor dismissing the Verified Complaint and for such other and further relief as the Court may deem just and proper. CROSSCLAIMS The defendant, Burnham LLC f/k/a Burnham Corporation (improperly pled as Burnham Corporation) by way of crossclaim against each named co-defendant, says: FIRST COUNT Without admitting any liability therein, the answering defendant asserts that should liability be found against said defendant, it is entitled to and hereby claims contribution from all co-defendants. SECOND COUNT While this defendant denies that it is negligent or liable in any regard, it is certain that its negligence or liability, if any, was passive, vicarious and imputed, whereas the negligence or liability of the co-defendants was active and primary. THIRD COUNT While denying any negligence or liability in this action, this defendant says that if there was any negligence or liability, then the negligence or liability of this defendant was secondary only and the negligence or liability of the co-defendants herein was primary. 2819239 20 Accordingly, the co-defendants are obligated by operation of law, contract and otherwise, to indemnify this defendant and hold this defendant harmless from any and all claims which are the subject of the Verified Complaint. WHEREFORE, this defendant demands judgment by way of indemnity against the co- defendants for any judgment, which may be entered in favor of the plaintiff against this defendant. ANSWER TO CROSSCLAIMS The answering defendant denies any and all crossclaims filed or to be filed against it in the within action. JURY DEMAND The answering defendant hereby demands a trial by jury on all issues. Dated: New York, New York October =; 2015 eten Antoniou McGowan, Esq. Attorneys for Defendant Burnham LLC f/k/a Burnham Corporation (improperly pled as Burnham Corporation) McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP Wall Street Plaza, 24" Floor 88 Pine Street New York, New York 10005 (212) 483-9490 2819239 21 ATTORNEY’S VERIFICATION The undersigned affirms the following statement to be true under penalties of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules. That he is an attorney at law and an associate at the firm of MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, attorneys for defendant, Burnham LLC f/k/a Burnham Corporation (improperly pled as Burnham Corporation). That he has read the foregoing document and knows the contents thereof, and that the same is true to the knowledge of your affirmant except as to the matters therein alleged upon information and belief and that as to those matters he believes them to be true. That the reason why this affirmation is being made by your affirmant and not the defendant is that the defendant is a domestic corporation and does not maintain an office with an officer having knowledge of the facts in the county where your affirmant’s firm maintains its offices. That the source of your affirmant’s information and the grounds of his belief as to all the matters therein alleged upon information and belief are reports from and communication had with said corporations. Dated: New York, New York October a 2015 Helen Antoniou McGowan, Esq. 2819239 22