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FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019
NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
:
IN RE NEW YORK CITY ASBESTOS : Index No.: 190296/2019
LITIGATION :
:
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MICHAEL A. RUNYON, : VERIFIED ANSWER TO
: PLAINTIFFS’ VERIFIED
Plaintiffs, : COMPLAINT
:
-v.- :
:
ABB, INC. Individually and as successor in interest :
to ITE CIRCUIT BREAKERS, INC., et al., :
:
Defendants :
:
:
Defendant BRIGGS & STRATTON CORP., by its attorneys, McElroy, Deutsch,
Mulvaney & Carpenter, LLP, hereby acknowledges receipt of a copy of a Summons and a copy of
Plaintiff’s Verified Complaint in this action and for its Answer to Plaintiff’s Verified Complaint
states as follows:
1. There are no allegations contained in Paragraph 1 of Plaintiff’s Verified Complaint
and, accordingly, no response is made to it.
2. Defendant, BRIGGS & STRATTON lacks knowledge or information sufficient to form a
belief as to the truth of the allegations contained in Paragraphs 2 and 3 of the Verified Complaint, and,
accordingly, leaves plaintiff to his proofs.
3. The allegations of Paragraphs 4 through 9 of the Verified Complaint are not directed
towards Defendant, BRIGGS & STRATTON CORP., and, accordingly, no response is made to
them.
3. Except to admit that it has conducted business in the State of New York, Defendant,
BRIGGS & STRATTON CORP., denies the allegations of Paragraph 10 of the Verified Complaint
to the extent they are directed towards it.
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4. The allegations of Paragraphs 11 through 30 of the Verified Complaint are not
directed towards Defendant, BRIGGS & STRATTON CORP., and, accordingly, no response is made
to them.
Defendant BRIGGS & STRATTON CORP., denies each and every allegation
contained in NYAL – Weitz & Luxenberg, P.C. Standard Asbestos Complaint for Personal Injury
No. 7 and to the extent they pertain to BRIGGS & STRATTON CORP., denies knowledge or
information sufficient to form a belief as to the truth of the allegations to the extent they pertain to
Plaintiff or any other defendant in this action, and refers all questions of law to the Court.
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 plaintiff.
THIRD SEPARATE DEFENSE
Damages, if any, which may have been sustained by the plaintiff, and for which this
Defendant may become liable, were the result of the actions of third-parties over whom the
answering Defendant exercised no control and, therefore, plaintiff is barred from any recovery
against the answering Defendant.
FOURTH SEPARATE DEFENSE
Any damages or injuries, which may have been sustained by the plaintiff, were the result
of the sole negligence of the remaining defendants and/or third-party defendants.
FIFTH SEPARATE DEFENSE
Plaintiff was aware of the facts, circumstances and conditions existing at the time and
place set forth in the Verified Complaint and voluntarily assumed all risk arising therefrom.
SIXTH SEPARATE DEFENSE
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The answering Defendant did not make, nor did it breach any warranty to the plaintiff.
SEVENTH SEPARATE DEFENSE
The incident and injury alleged in the Verified 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
Plaintiff failed to give the Defendant notice of alleged breach of warranty and damage as
required by law.
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 hereby invokes the provisions of Article 16 of the New York
CPLR and requests that the jury herein be charged accordingly.
THIRTEENTH SEPARATE DEFENSE
The actions of the plaintiff 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.
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FIFTEENTH SEPARATE DEFENSE
This court lacks jurisdiction over the subject matter of this action.
SIXTEENTH SEPARATE DEFENSE
This court lacks personal jurisdiction of this Defendant.
SEVENTEENTH SEPARATE DEFENSE
The doctrine of strict liability in tort does not apply to this answering Defendant.
EIGHTEENTH SEPARATE DEFENSE
The plaintiff’s employer and employers of others are primarily, solely and exclusively
liable for the within claims.
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, plaintiff fails to state a
claim against the answering Defendant.
TWENTY-FIRST SEPARATE DEFENSE
Any damage or injuries that may have been suffered by the plaintiff were 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 plaintiff’s exposure to asbestos.
TWENTY-THIRD SEPARATE DEFENSE
This Defendant is an improper party in this litigation.
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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.
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
Plaintiff’s cause of action for exemplary or punitive damages is barred because such
damages are not recoverable or warranted in this action.
TWENTY-EIGHTH SEPARATE DEFENSE
Plaintiff’s 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
Plaintiff’s 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.
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THIRTIETH SEPARATE DEFENSE
Plaintiff’s 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 plaintiff 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.
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 its operations, in conformity with the
available knowledge and research of the scientific and industrial communities.
THIRTY-THIRD SEPARATE DEFENSE
Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use of
tobacco products and/or other substances, products, medications or drugs.
THIRTY-FOURTH SEPARATE DEFENSE
To the extent any plaintiffs herein brings suit in a representative capacity, such plaintiffs
have 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.
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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 plaintiff.
THIRTY-SEVENTH SEPARATE DEFENSE
Plaintiff’s claims are barred by the doctrines of laches, waiver and/or estoppel.
THIRTY-EIGHTH SEPARATE DEFENSE
The plaintiff’s claims are barred because any product allegedly associated with the
answering Defendant was substantially altered after it left the manufacturer’s possession and
control.
THIRTY-NINTH SEPARATE DEFENSE
The answering Defendant has no legal duty of care to plaintiff.
FORTIETH SEPARATE DEFENSE
Plaintiff’s claims are barred, in whole or in part, to the extent that plaintiff failed to
mitigate damages.
FORTY-FIRST SEPARATE DEFENSE
In the event that plaintiff recovers 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 plaintiff, 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 hereby invokes the provisions of the New York CPLR §§ 4545
and requests that any damage award, if any, in favor of any plaintiff be reduced accordingly.
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FORTY-THIRD SEPARATE DEFENSE
Plaintiff has 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 hereby 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
proportion of damages sustained by plaintiff, 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 plaintiff alleges claims based upon oral warranties or representations,
plaintiff’s claims are barred by the Statute of Frauds.
FORTY-SEVENTH SEPARATE DEFENSE
The answering Defendant cannot be liable to plaintiffs as alleged in the Verified
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 hereby reserves 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.
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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.
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 SEPARATE DEFENSE
This Defendant is not liable to plaintiffs for any damages alleged in the Verified
Complaint because such damages are excluded and not recoverable under express warranty.
FIFTY-FOURTH SEPARATE DEFENSE
The plaintiff 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 Verified
Complaint of acts or omissions in plaintiff’s Complaint.
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FIFTY-SEVENTH SEPARATE DEFENSE
The answering Defendant was 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
Plaintiff was warned of risk of exposure to use of asbestos-containing materials.
FIFTY-NINTH SEPARATE DEFENSE
Upon information and belief, some or allof the causes of action may not be maintained
because of collateral estoppel.
SIXTIETH SEPARATE DEFENSE
Upon information and belief, some or allof the causes of action may not be maintained
because of res judicata.
SIXTY-FIRST SEPARATE DEFENSE
Plaintiff’s claims are barred because the Verified 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 Verified 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 plaintiff and this answering Defendant.
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SIXTY-FOURTH SEPARATE DEFENSE
That insofar as the causes of action herein considered separately occurred before
September 1, 1975, such causes of action are barred by reason of the contributory negligence of
the plaintiff.
SIXTY-FIFTH SEPARATE DEFENSE
The plaintiff is barred from any recovery against this answering Defendant by the doctrine
of assumption of the risk.
SIXTY-SIXTH SEPARATE DEFENSE
In the event that plaintiff was 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 plaintiff’s employer(s) were sophisticated purchasers and/or users of the products
referred to in plaintiff’s Verified 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 herein, 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.
SIXTY-NINTH SEPARATE DEFENSE
Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and
indispensable parties.
SEVENTIETH SEPARATE DEFENSE
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No enterprise liability lies against the answering Defendant herein.
SEVENTY-FIRST SEPARATE DEFENSE
This Defendant did not act with recklessness, malice or wantonness, and accordingly,
plaintiff may not recover herein 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
or products that it 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 hereto, the state of the medical and industrial art was such that
there was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently
dangerous, or hazardous character or nature of products containing asbestos when used in the
manner and purpose described by the plaintiff and, therefore, there was no duty for this answering
Defendant to know of any such character or nature or to warn plaintiff 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 community, this Defendant has fulfilled
its obligations, if any, herein and plaintiffs’ claims should be barred, in whole or in part.
SEVENTY-FIFTH SEPARATE DEFENSE
That plaintiff has failed to state a cause of action upon which relief may be granted,
inasmuch as plaintiff is 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
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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 plaintiff, his co-workers and employees misused, mistreated and misapplied the
product(s) designated as asbestos materials as alleged in Verified Complaint and therefore
liability found against this Defendant, if any, should be diminished in the proportion which the
misuse, abuse, mistreatment and/or misapplication attributed to the plaintiff and/or his 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 herein 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 plaintiff 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 plaintiff’s 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-NINTH 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)
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and/or to the United States Government, and with which plaintiffs allege they 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.
EIGHTIETH SEPARATE DEFENSE
That to the extent that the causes pleaded by the plaintiffs herein fail to accord with the
Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiff’s
Complaint is barred.
EIGHTY-FIRST SEPARATE DEFENSE
That to the extent that plaintiff 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 plaintiff seeks 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 plaintiff herein are barred by virtue of
Article 1, Section 10 of the United States Constitution.
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EIGHTY-FOURTH SEPARATE DEFENSE
That pursuant to the Case Management Order Section XVII, punitive damages are not
available in this action.
EIGHTY-FIFTH SEPARATE DEFENSE
That plaintiff’s demand for punitive damages is barred by the “ex post facto” clause of the
United States Constitution.
EIGHTY-SIXTH SEPARATE DEFENSE
That with respect to plaintiff’s claim of a duty owed to them, this answering Defendant
denies breaching any duty which it may have owned to the plaintiff.
EIGHTY-SEVENTH SEPARATE DEFENSE
This answering Defendant reserves the right to move for a severance of the various
allegations in the plaintiff’s Complaint.
EIGHTY-EIGHTH SEPARATE DEFENSE
That plaintiff-spouses’ loss of consortium claim(s) is/are barred as a matter of law because
the alleged asbestos exposure by the plaintiffs predate the date of the plaintiff’ and plaintiff-
spouses’ marriage.
EIGHTY-NINTH SEPARATE DEFENSE
To the extent that plaintiff(s)’ 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
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liability as conferred by the United States Government, and specifically pleads the government
contractor defense.
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 herein to assert additional defenses and to make further
admission upon completion of further investigation and discovery.
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WHEREFORE, Defendant BRIGGS & STRATTON CORP., 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
Defendant BRIGGS & STRATTON CORP., 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.
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.
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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: Morristown, New Jersey
January 3, 2020
/s/ Kate Chetta, Esq._____________
Kate Chetta, Esq.
Attorneys for Defendant
BRIGGS & STRATTON CORP.,
McELROY, DEUTSCH, MULVANEY &
CARPENTER, LLP
225 Liberty Street
36th Floor
New York, NY 10281
(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 she is an attorney at law and an associate of the firm of McELROY, DEUTSCH,
MULVANEY & CARPENTER, LLP, attorneys for BRIGGS & STRATTON CORP. That she
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 she 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 not 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 her belief as to all the
matters therein alleged upon information and beliefs are reports from and communication had
with said corporations.
Dated: Morristown, New Jersey
January 3, 2020
/s/ Kate Chetta, Esq._________
Kate Chetta, Esq.
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FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IN RE NEW YORK CITY ASBESTOS : Index No.: 190296/2019 LITIGATION : : --------------------------------------------------------------------- MICHAEL A. RUNYON, : VERIFIED ANSWER TO : PLAINTIFFS’ VERIFIED Plaintiffs, : COMPLAINT : -v.- : : ABB, INC. Individually and as successor in interest : to ITE CIRCUIT BREAKERS, INC., et al., : : Defendants : : : Defendant BRIGGS & STRATTON CORP., by its attorneys, McElroy, Deutsch, Mulvaney & Carpenter, LLP, hereby acknowledges receipt of a copy of a Summons and a copy of Plaintiff’s Verified Complaint in this action and for its Answer to Plaintiff’s Verified Complaint states as follows: 1. There are no allegations contained in Paragraph 1 of Plaintiff’s Verified Complaint and, accordingly, no response is made to it. 2. Defendant, BRIGGS & STRATTON lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 2 and 3 of the Verified Complaint, and, accordingly, leaves plaintiff to his proofs. 3. The allegations of Paragraphs 4 through 9 of the Verified Complaint are not directed towards Defendant, BRIGGS & STRATTON CORP., and, accordingly, no response is made to them. 3. Except to admit that it has conducted business in the State of New York, Defendant, BRIGGS & STRATTON CORP., denies the allegations of Paragraph 10 of the Verified Complaint to the extent they are directed towards it. 1 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 4. The allegations of Paragraphs 11 through 30 of the Verified Complaint are not directed towards Defendant, BRIGGS & STRATTON CORP., and, accordingly, no response is made to them. Defendant BRIGGS & STRATTON CORP., denies each and every allegation contained in NYAL – Weitz & Luxenberg, P.C. Standard Asbestos Complaint for Personal Injury No. 7 and to the extent they pertain to BRIGGS & STRATTON CORP., denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all questions of law to the Court. 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 plaintiff. THIRD SEPARATE DEFENSE Damages, if any, which may have been sustained by the plaintiff, and for which this Defendant may become liable, were the result of the actions of third-parties over whom the answering Defendant exercised no control and, therefore, plaintiff is barred from any recovery against the answering Defendant. FOURTH SEPARATE DEFENSE Any damages or injuries, which may have been sustained by the plaintiff, were the result of the sole negligence of the remaining defendants and/or third-party defendants. FIFTH SEPARATE DEFENSE Plaintiff was aware of the facts, circumstances and conditions existing at the time and place set forth in the Verified Complaint and voluntarily assumed all risk arising therefrom. SIXTH SEPARATE DEFENSE 3948568 2 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 The answering Defendant did not make, nor did it breach any warranty to the plaintiff. SEVENTH SEPARATE DEFENSE The incident and injury alleged in the Verified 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 Plaintiff failed to give the Defendant notice of alleged breach of warranty and damage as required by law. 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 hereby invokes the provisions of Article 16 of the New York CPLR and requests that the jury herein be charged accordingly. THIRTEENTH SEPARATE DEFENSE The actions of the plaintiff 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. 3948568 3 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 FIFTEENTH SEPARATE DEFENSE This court lacks jurisdiction over the subject matter of this action. SIXTEENTH SEPARATE DEFENSE This court lacks personal jurisdiction of this Defendant. SEVENTEENTH SEPARATE DEFENSE The doctrine of strict liability in tort does not apply to this answering Defendant. EIGHTEENTH SEPARATE DEFENSE The plaintiff’s employer and employers of others are primarily, solely and exclusively liable for the within claims. 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, plaintiff fails to state a claim against the answering Defendant. TWENTY-FIRST SEPARATE DEFENSE Any damage or injuries that may have been suffered by the plaintiff were 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 plaintiff’s exposure to asbestos. TWENTY-THIRD SEPARATE DEFENSE This Defendant is an improper party in this litigation. 3948568 4 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 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. 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 Plaintiff’s cause of action for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. TWENTY-EIGHTH SEPARATE DEFENSE Plaintiff’s 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 Plaintiff’s 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. 3948568 5 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 THIRTIETH SEPARATE DEFENSE Plaintiff’s 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 plaintiff 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. 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 its operations, in conformity with the available knowledge and research of the scientific and industrial communities. THIRTY-THIRD SEPARATE DEFENSE Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. THIRTY-FOURTH SEPARATE DEFENSE To the extent any plaintiffs herein brings suit in a representative capacity, such plaintiffs have 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. 3948568 6 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 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 plaintiff. THIRTY-SEVENTH SEPARATE DEFENSE Plaintiff’s claims are barred by the doctrines of laches, waiver and/or estoppel. THIRTY-EIGHTH SEPARATE DEFENSE The plaintiff’s claims are barred because any product allegedly associated with the answering Defendant was substantially altered after it left the manufacturer’s possession and control. THIRTY-NINTH SEPARATE DEFENSE The answering Defendant has no legal duty of care to plaintiff. FORTIETH SEPARATE DEFENSE Plaintiff’s claims are barred, in whole or in part, to the extent that plaintiff failed to mitigate damages. FORTY-FIRST SEPARATE DEFENSE In the event that plaintiff recovers 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 plaintiff, 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 hereby invokes the provisions of the New York CPLR §§ 4545 and requests that any damage award, if any, in favor of any plaintiff be reduced accordingly. 3948568 7 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 FORTY-THIRD SEPARATE DEFENSE Plaintiff has 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 hereby 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 proportion of damages sustained by plaintiff, 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 plaintiff alleges claims based upon oral warranties or representations, plaintiff’s claims are barred by the Statute of Frauds. FORTY-SEVENTH SEPARATE DEFENSE The answering Defendant cannot be liable to plaintiffs as alleged in the Verified 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 hereby reserves 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. 3948568 8 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 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. 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 SEPARATE DEFENSE This Defendant is not liable to plaintiffs for any damages alleged in the Verified Complaint because such damages are excluded and not recoverable under express warranty. FIFTY-FOURTH SEPARATE DEFENSE The plaintiff 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 Verified Complaint of acts or omissions in plaintiff’s Complaint. 3948568 9 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 FIFTY-SEVENTH SEPARATE DEFENSE The answering Defendant was 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 Plaintiff was warned of risk of exposure to use of asbestos-containing materials. FIFTY-NINTH SEPARATE DEFENSE Upon information and belief, some or allof the causes of action may not be maintained because of collateral estoppel. SIXTIETH SEPARATE DEFENSE Upon information and belief, some or allof the causes of action may not be maintained because of res judicata. SIXTY-FIRST SEPARATE DEFENSE Plaintiff’s claims are barred because the Verified 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 Verified 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 plaintiff and this answering Defendant. 3948568 10 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 SIXTY-FOURTH SEPARATE DEFENSE That insofar as the causes of action herein considered separately occurred before September 1, 1975, such causes of action are barred by reason of the contributory negligence of the plaintiff. SIXTY-FIFTH SEPARATE DEFENSE The plaintiff is barred from any recovery against this answering Defendant by the doctrine of assumption of the risk. SIXTY-SIXTH SEPARATE DEFENSE In the event that plaintiff was 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 plaintiff’s employer(s) were sophisticated purchasers and/or users of the products referred to in plaintiff’s Verified 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 herein, 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. SIXTY-NINTH SEPARATE DEFENSE Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and indispensable parties. SEVENTIETH SEPARATE DEFENSE 3948568 11 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 No enterprise liability lies against the answering Defendant herein. SEVENTY-FIRST SEPARATE DEFENSE This Defendant did not act with recklessness, malice or wantonness, and accordingly, plaintiff may not recover herein 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 or products that it 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 hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently dangerous, or hazardous character or nature of products containing asbestos when used in the manner and purpose described by the plaintiff and, therefore, there was no duty for this answering Defendant to know of any such character or nature or to warn plaintiff 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 community, this Defendant has fulfilled its obligations, if any, herein and plaintiffs’ claims should be barred, in whole or in part. SEVENTY-FIFTH SEPARATE DEFENSE That plaintiff has failed to state a cause of action upon which relief may be granted, inasmuch as plaintiff is 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 3948568 12 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 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 plaintiff, his co-workers and employees misused, mistreated and misapplied the product(s) designated as asbestos materials as alleged in Verified Complaint and therefore liability found against this Defendant, if any, should be diminished in the proportion which the misuse, abuse, mistreatment and/or misapplication attributed to the plaintiff and/or his 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 herein 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 plaintiff 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 plaintiff’s 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-NINTH 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) 3948568 13 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 and/or to the United States Government, and with which plaintiffs allege they 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. EIGHTIETH SEPARATE DEFENSE That to the extent that the causes pleaded by the plaintiffs herein fail to accord with the Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiff’s Complaint is barred. EIGHTY-FIRST SEPARATE DEFENSE That to the extent that plaintiff 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 plaintiff seeks 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 plaintiff herein are barred by virtue of Article 1, Section 10 of the United States Constitution. 3948568 14 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 EIGHTY-FOURTH SEPARATE DEFENSE That pursuant to the Case Management Order Section XVII, punitive damages are not available in this action. EIGHTY-FIFTH SEPARATE DEFENSE That plaintiff’s demand for punitive damages is barred by the “ex post facto” clause of the United States Constitution. EIGHTY-SIXTH SEPARATE DEFENSE That with respect to plaintiff’s claim of a duty owed to them, this answering Defendant denies breaching any duty which it may have owned to the plaintiff. EIGHTY-SEVENTH SEPARATE DEFENSE This answering Defendant reserves the right to move for a severance of the various allegations in the plaintiff’s Complaint. EIGHTY-EIGHTH SEPARATE DEFENSE That plaintiff-spouses’ loss of consortium claim(s) is/are barred as a matter of law because the alleged asbestos exposure by the plaintiffs predate the date of the plaintiff’ and plaintiff- spouses’ marriage. EIGHTY-NINTH SEPARATE DEFENSE To the extent that plaintiff(s)’ 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 3948568 15 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 liability as conferred by the United States Government, and specifically pleads the government contractor defense. 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 herein to assert additional defenses and to make further admission upon completion of further investigation and discovery. 3948568 16 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 WHEREFORE, Defendant BRIGGS & STRATTON CORP., 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 Defendant BRIGGS & STRATTON CORP., 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. 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. 3948568 17 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 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: Morristown, New Jersey January 3, 2020 /s/ Kate Chetta, Esq._____________ Kate Chetta, Esq. Attorneys for Defendant BRIGGS & STRATTON CORP., McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 225 Liberty Street 36th Floor New York, NY 10281 (212) 483-9490 3948568 18 of 19 FILED: NEW YORK COUNTY CLERK 01/03/2020 02:56 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/03/2020 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 she is an attorney at law and an associate of the firm of McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, attorneys for BRIGGS & STRATTON CORP. That she 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 she 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 not 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 her belief as to all the matters therein alleged upon information and beliefs are reports from and communication had with said corporations. Dated: Morristown, New Jersey January 3, 2020 /s/ Kate Chetta, Esq._________ Kate Chetta, Esq. 3948568 19 of 19