Preview
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
. EIGHTH
JUDICIAL DISTRICT
JOSEPH1NE E. MCCLURE, ASBESTOS LITIGATION
Plaintiff,
VERIFIED ANSWER
-against-
Index No. 802542/2019
CBS CORPORATION f/k/a VIACOM INC. successor by
merger to CBS CORPORATION f/k/a WESTINGHOUSE
ELECTRIC COPORATION, et al,
Defendants.
Defendant Honeywell International Inc., f/k/a AlliedSignal, Inc., and as
Successor-in-Interest to The Bendix Corp. (hereinafter "Honeywell International Inc."), by its
attorneys, Harris Beach PLLC, for its Verified Answer to plaintiff's Complaint, states upon
information and belief as follows:
"2," "22," "23," "24," "25,"
1. Denies the allegations contained in paragraphs
"26," "27," "30," "31," "32," "33," "34," "35," "36," "37," "38," "39," "40," "41," "42," "43,"
"45," "46," "47," "48"
and "49"of plaintiff's Complaint.
2. Denies knowledge or information sufficient to form a belief as to the truth or
"1," "3," "4," "5," "6," "7," "8," "9," "10,"
falsity of the allegations contained in paragraphs
"11," "13," "14," "15," "16," "17," "18," "19," "20," "21," "51," "52," "53," "54," "55," "56,"
"57," "58," "59," "61," "62," "63," "64" "65"
and of plaintiff's Complaint.
"28," "44," "50" "60"
3. As to paragraphs and of the Complaint, such paragraphs
fail to allege facts for which and answer is required, but denies any and all liability as may be
alleged.
1 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
"12"
4. With respect to the allegations contained in paragraph of plaintiff's
Complaint admits that defendant Honeywell International and as successor to
Inc., individually
AlliedSignal and as successor to The Bendix Corporation, is a Delaware corporation with its
principal place of business outside the State of New York, but denies each and every other
allegation contained therein.
"29"
5. With respect to the allegations contained in paragraph of plaintiff's
Complaiñt, admits that inhalation of asbestos dust may cause disease and denies each and every
other allegation contained therein.
6. Denies each and every other allegation of plaintiff's Complaint not heretofore
specifically admitted, denied or otherwise responded to.
FIRST AFFIRMATIVE DEFENSE
7. Upon information and belief, this Court lacks personal jurisdiction over
Honeywell.
SECOND AFFIRMATIVE
DEFENSE,
8. The action was not commenced within the time limited therefor and is barred by
the statute of limitations.
THIRD AFFIRMATIVE DEFENSE
9. This action is barred by plaintiff's laches in commencing this action.
FOURTH AFFIRMATIVE DEFENSE
10. The injuries and damages alleged in the Complaint resulted from or were
proximately caused by the conduct of persons other than defendant Honeywell International,
Inc., or by superseding or intervening causes.
2
2 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
FIFTH AFFIRMATIVE DEFENSE
11. The injuries and damages alleged in the Complaint were caused in whole or in
part by culpable conduct on the part of plaintiff Josephine E. McClure, including contributory
negligence and assumption of the risk and, accordingly, any verdict or judgment in favor of
plaintiff must be reduced by that percentage of all of the culpable conduct which the trier of
fact apportions to plaintiff Josephine E. McClure.
SIXTH AFFIRMATIVE DEFENSE
12. The injuries and damages alleged in the Complaint were caused or contributed
to in whole or in part by culpable conduct attributable to persons other than this answering
defendant, the relative culpability of which persons equals or exceeds fifty perceñt of the total
culpability of allpersons contributing to such damage. Any liability on the part of Honeywell
International, Inc. (which liability is denied) is 50 percent or less of the liability of all persons
causing or contributing to the alleged injuries, if any, and the liability of Honeywell
International, Inc. for non-economic loss shall not exceed Honeywell International, Inc.'s
equitable share determined in accordance with the relative culpability of each person causing or
contributing to the total liability for non-economic loss pursuant to CPLR §§1601 and 1603.
SEVENTH AFFIRMATIVE DEFENSE
13. Insofar as the Complaint alleges causes of action accruing before September 1,
1975, each such cause of action is barred by reason of the culpable conduct attributable to
plaintiff Josephine E. McClure, including contributory negligence and assumption of the risk.
EIGHTH AFFIRMATIVE DEFENSE
14. Insofar as the Complaint alleges causes of action occurring on or after
September 1, 1975 to recover damages for personal injuries, the amount of damages
3
3 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
recoverable thereon must be diminished by reason. of the culpable conduct attributable to
plaintiff Josephine E. McClure, including contributory negligence and assumption of the risk,
in the proportion in which the culpable conduct attributable to plaintiff Josephine E. McClure,
f tothe culpable conduct which caused the damages.
NINTH AFFIRMATIVE DEFENSE
15. The Complaint fails to state a claim upon which punitive damages can be
granted.
TENTH AFFIRMATIVE DEFENSE
16. The imposition of punitive damages on the facts alleged in the Complaint
would violate the excessive fmes and due process clauses of the Constitution of the United
States and of the State of New York.
ELEVENTH AFFIRMATIVE DEFENSE
17. 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, Article 1, Section 6 of the New York State Constitution.
TWELVTH AFFIRMATIVE DEFENSE
18. Plaintiff's claim for exemplary or punitive damages is barred because such
damages are not recoverable or warranted in this action.
THIRTEENTH AFFIRMATIVE DEFENSE
19. Each item of economic loss alleged in the Complaint was, or with reasonable
certainty will be, replaced or indemnified in whole or in part from collateral sources.
I
4
4 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
FOURTEENTH AFFIRMATIVE DEFENSE
20. The Complaint fails to state a cause of action upon which relief may be granted
as against this answering defendant.
FIFTEENTH AFFIRMATIVE DEFENSE
21. Whatever damages, if any, which plaintiff Josephine E. McClure, sustained as
alleged in the Complaint, if he was not caused in whole or in part or contributed to by reason of
her culpable conduct, was caused by reason of culpable conduct on the part of others to whom
the plaintiff has given a releasc, and, accordingly, this answering defendant is entitled to have
the claim of the plaintiff herein, if any, reduced in accordance with Section 15-108 of the
General Obligations Law.
SIXTEENTH AFFIRMATIVE DEFENSE
22. This answering defendant did not supervise or control any of .the work
performed by plaintiff Josephine E. McClure
SEVENTEENTH AFFIRMATIVE DEFENSE
23. It is denied that plaintiff Josephine E. McClure, was ever exposed to a product
sold or manufactured by this answering defendant which contained asbestos. However, should
plaintiff submit evidence to the contrary, then this answering defendant alleges that any
asbestos fibers in such product were entirely encapsulated. Therefore, such products did not
omit respirable asbestos fibers into the air, and, such exposure could not have contributed to the
injuries of plaintiff Josephine E. McClure
EIGHTEENTH AFFIRMATIVE DEFENSE
24. If it should be proven at the time of trialthat any of this answering defendant's
products were furnished to employers of plaintiff Josephiñê E. McClure, and that she came into
5
5 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
contact with these products, which is specifically denied, that any such products were misused,
modified and altered by plaintiff Josephine E. McClure, her co-workers and/or her employers.
NINTEENTH AFFIllMATIVE DEFENSE.
25. Ifit should be proven at the time of trialthat any of this answering defendant's
products were furnished to employers of plaintiff Josephine E. McClure, and that he came into
. contact with these products, which is specifically denied, that any such product was furnished
in strict conformity to the conditions specified or fumished by plaintiff Josephine E. McClure,
and her employers, who were sophisticated users of the product.
TWENTIETH AFFIRMATIVE DEFENSE
26. If it should be proven at the time of trialthat any of this answering defendant's
products were furnished to plaintiff Josephine E. McClure, or her employers and that he came
into contact with these products, which is specifically denied, that any such products were
accompañied by adequate warnings in conformity with the existing state of the art in regard to
the foreseeabic use of said products or materials.
TWENTY-FIRST AFFIRMÁTIVE DEFENSE
27, If plaintiff Josephiñê E. McClure, used products distributed by this
any
answering defendant, it is alleged that said products were produced pursuant to goverñmeñt
specifications and as such, this answering defendant is relieved of any responsibility for the
damages which plaintiff claims.
TWENTY-SECOND AFFIRMATIVE DEFENSE
28. Any oral warrañties upon which plaintiff Josephine E. McClure, relied are
barred by the statute of frauds.
6
6 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
TWENTY-THIRD AFFIRMATIVE DEFENSE
29. Plaintiff failed to give timely notice to this answering defendant of any breach of
warranty claim.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
30. This defendant never made warranties to paintiff Josephine E.
answering any
McClure, upon which he relied.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
31. Any alleged warranties were properly disclaimed by labels, notice and warnings.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
. 32. Plaintiff failed to timely assert any claim under UCC Section 2-725, and
accordingly, any such claim is now barred.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
33. Upon information and belief, plaintiff Josephine E. McClure, contributed to her
illness by use of drugs, medication and/or tobacco products.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
34. Plaintiff has failed to state a claim agamst defendant Honeywell International,
Inc. for breach of warranty in that the Complaint fails to allege that there was privity between
Honeywell International, Inc. and plaintiff Josephine E. McClure, and furthermore, such privity
between Honeywell International, Inc. and plaintiff did not exist.
TWENTY-NINTH AFFIRMATIVE DEFENSE
35. Plaintiff Josepliiize E. McClure's employer or employers, including said
employers'
agents, servants, and employees, by reason of the warnings and handling
information given to them and their own longstanding and continuous experience with the
7
7 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
products or materials, if any, referred to in the Complaint, are and were sophisticated users of
any and all such products or materials, and thereby acquired a separate and affirmative duty to
warn their employees, including plaintiff Josephine E. McClure, of any alleged potential
harmful effects from the use or misuse of said products or materials. By reason of the
employers'
foregoing, said failure to discharge said duty directly and proximately caused any
and all damages and injuries, if any, complained of by plaintiff.
THIRTIETH AFFIRMATIVE DEFENSE
36. Products or materials supplied by this answering defendant, if any, to plaintiff
Josephine E. McClure's employer or employers, or others were produced in conformity with
the existing state of the arts,and the alleged hazards or dangers of said products or materials, if
any, were created by the conduc of plaintiff Josephine E. McClure's employer or employers,
and others.
THIRTY-FIRST AFFIRMATIVE DEFENSE
37. At alltimes material hereto, the state of the medical and industrial art was such
that there was no generally accepted or recognized knowledge of any unavoidable, unsafe,
iñherently dangerous or hazardous character or nature of products containing asbestos when
used in the manner and purpose described by plaintiff Josephiñ6 E. McClure Therefore, there
was no duty for this answering defendant to know of such character or nature or to warn
plaintiff Josephine E. McClure, or others similarly situated.
THIRTY-SECOND AFFIRMATIVE DEFENSE
38. To the extent that plaintiff relied on the New York Law L. 1986, Chapter 682,
Section 4 as grounds for reviving or maintaining the action, said statute(s) is unconstitutional,
8
8 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
deprives this answering defendant of its constitutional rights, and is wholly v id and
unenforceable. Accordingly, plaintiff's claim is time barred.
THIRTY-THIRD AFFIRMATIVE DEFENSE
39. The action cannot proceed in the absence of all parties who should be named in
accordance with CPLR §1001.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
40. With respect to the products or materials of this answering defendant referred to
in the Complaint, if any, this answering defendant made no representations to the public at
large in order to induce purchase of said products or materials.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
41. Assuming, but without conceding, that products manufactured or supplied by
this defendant were used plaintiff Josephine E. such asbestos-
answering by McClure, any
containing products were designed and manufactured pursuant to and in accordance with
specifications mandated by the federal, state and/or local goverñmeñts and/or their agencies.
The knowledge of the federal, state and/or local goveñuneñts and/or agencies of any possible
health hazards from use of such products was equal to or superior to that of this answering
defendant. Accordingly, this answering defendant is not liable to plaintiff.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
42. As a result of the acts, conduct and omissiöns of plaintiff's agents, the
allegations set forth in the Complaint are barred by the doctrine of estoppel and waiver.
HIRTY-SEVENTH AFFIRMATIVE DEFENSE
43. The benefits of any products or materials of this answering defendant referred to
in the Complaint outweigh the risk of danger, if any, inherent in said products or materials.
9
9 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
44. Upon information and belief, some or all of the damages alleged in the
Complaint are barred and/or limited by the provisions of §4545 of the CPLR.
AS AND FOR A CROSS-CLAIM AGAINST ALL DEFENDANTS
THIS ANSWERING DEFENDANT ALLEGES:
45. That any injuries or damages sustained by the plaintiff herein resulting from the
alleged incidents described in plaintiff's Complaint were sustained in whole or in part through
the negligence, want of care, or fault of the other defendants.
46. That if it is determined that this defendant is liable in any degree to plaintiff,
then this defendant is entitled to indemnification and/or contribution to have the liability
apportioned among and between the co-defendants and in accordance with applicable law.
WHEREFORE, defendant, Honeywell Intemational Inc., demands judgment as follows:
a. Dismissing the Complaint of the plaintiff herein, together with costs and
disbursements of this action; or in the alternative;
b. That the ultimate rights and responsibilities as between all parties,
including the culpable conduct attributable to plaintiff Josephine E.
McClure, and plaintiff's assumption of the risk, be determined in this
action;
c. That if plaintiff recovers a judgment for any amount against defendant
Honeywell International, Inc., the amount of such damages recovered be
dimiñished in the proportion to which the culpable conduct attributable
to the plaintiff Josephine E. McClure, and the plaintiff's assumption of
the risk bears to the culpable conduct which caused the dãindges; and
10
10 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
d. Such other and further relief as this Court may deem just and proper,
ogether with the costs and disbursements of this action.
Dated: April 1, 2019
Pittsford, New York
HARRIS BEACH PLLC
Mi hael J. Masin , sq.
Attorneys for Defe dant
Honeywell International Inc.
99 Garnsey Road
Pittsford, New York 14534
(585) 419-8800
TO: John E. Richmond, Esq.
LIPSITZ & PONTERIO, LLC
Attorneys for Plaintiff
424 Main Street, Suite 1500
Buffalo, New York 14202
11
11 of 12
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019
VERIFICATION
STATE OF NEW YORK )
COUNTY OF MONROE ) ss:
MICHAEL J. MASINO, being duly sworn, deposes and says: that he is one of the
attorneys for defendant Honeywell International Inc. in the above-entitled action; that he has
read the foregoing Answer and knows the contents thereof; that the same is true to the
knowledge of deponent, except as to the matters therein stated to be alleged on information and
belief, and that as to those matters he believes them to be true. The basis for such information
and belief is the Complaint and documents provided by defendant.
That the reason this verification is made by the deponent and not by an officer of said
defeñdañt is that there is no officer of said defendant now within the County of Monroe, where
deponent resides and has his office; and the sources of deponent's information and the grounds
of his belief as to all matters herein stated are the records of said defendant and the results of an
investigation into this matter, conducted on behalf of said defendant.
M HAEL J.MA f
Sworn to before me this
/st day of April, 2019.
Notary Public
AMY M. DANN
Notary Public,State of New York
Qualifiedin Wayne ·
County
No. 01DA5077658
Commission Expires May 12,
3090974816-8712-1040v1
12
12 of 12
Preview
FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE . EIGHTH JUDICIAL DISTRICT JOSEPH1NE E. MCCLURE, ASBESTOS LITIGATION Plaintiff, VERIFIED ANSWER -against- Index No. 802542/2019 CBS CORPORATION f/k/a VIACOM INC. successor by merger to CBS CORPORATION f/k/a WESTINGHOUSE ELECTRIC COPORATION, et al, Defendants. Defendant Honeywell International Inc., f/k/a AlliedSignal, Inc., and as Successor-in-Interest to The Bendix Corp. (hereinafter "Honeywell International Inc."), by its attorneys, Harris Beach PLLC, for its Verified Answer to plaintiff's Complaint, states upon information and belief as follows: "2," "22," "23," "24," "25," 1. Denies the allegations contained in paragraphs "26," "27," "30," "31," "32," "33," "34," "35," "36," "37," "38," "39," "40," "41," "42," "43," "45," "46," "47," "48" and "49"of plaintiff's Complaint. 2. Denies knowledge or information sufficient to form a belief as to the truth or "1," "3," "4," "5," "6," "7," "8," "9," "10," falsity of the allegations contained in paragraphs "11," "13," "14," "15," "16," "17," "18," "19," "20," "21," "51," "52," "53," "54," "55," "56," "57," "58," "59," "61," "62," "63," "64" "65" and of plaintiff's Complaint. "28," "44," "50" "60" 3. As to paragraphs and of the Complaint, such paragraphs fail to allege facts for which and answer is required, but denies any and all liability as may be alleged. 1 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 "12" 4. With respect to the allegations contained in paragraph of plaintiff's Complaint admits that defendant Honeywell International and as successor to Inc., individually AlliedSignal and as successor to The Bendix Corporation, is a Delaware corporation with its principal place of business outside the State of New York, but denies each and every other allegation contained therein. "29" 5. With respect to the allegations contained in paragraph of plaintiff's Complaiñt, admits that inhalation of asbestos dust may cause disease and denies each and every other allegation contained therein. 6. Denies each and every other allegation of plaintiff's Complaint not heretofore specifically admitted, denied or otherwise responded to. FIRST AFFIRMATIVE DEFENSE 7. Upon information and belief, this Court lacks personal jurisdiction over Honeywell. SECOND AFFIRMATIVE DEFENSE, 8. The action was not commenced within the time limited therefor and is barred by the statute of limitations. THIRD AFFIRMATIVE DEFENSE 9. This action is barred by plaintiff's laches in commencing this action. FOURTH AFFIRMATIVE DEFENSE 10. The injuries and damages alleged in the Complaint resulted from or were proximately caused by the conduct of persons other than defendant Honeywell International, Inc., or by superseding or intervening causes. 2 2 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 FIFTH AFFIRMATIVE DEFENSE 11. The injuries and damages alleged in the Complaint were caused in whole or in part by culpable conduct on the part of plaintiff Josephine E. McClure, including contributory negligence and assumption of the risk and, accordingly, any verdict or judgment in favor of plaintiff must be reduced by that percentage of all of the culpable conduct which the trier of fact apportions to plaintiff Josephine E. McClure. SIXTH AFFIRMATIVE DEFENSE 12. The injuries and damages alleged in the Complaint were caused or contributed to in whole or in part by culpable conduct attributable to persons other than this answering defendant, the relative culpability of which persons equals or exceeds fifty perceñt of the total culpability of allpersons contributing to such damage. Any liability on the part of Honeywell International, Inc. (which liability is denied) is 50 percent or less of the liability of all persons causing or contributing to the alleged injuries, if any, and the liability of Honeywell International, Inc. for non-economic loss shall not exceed Honeywell International, Inc.'s equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss pursuant to CPLR §§1601 and 1603. SEVENTH AFFIRMATIVE DEFENSE 13. Insofar as the Complaint alleges causes of action accruing before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to plaintiff Josephine E. McClure, including contributory negligence and assumption of the risk. EIGHTH AFFIRMATIVE DEFENSE 14. Insofar as the Complaint alleges causes of action occurring on or after September 1, 1975 to recover damages for personal injuries, the amount of damages 3 3 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 recoverable thereon must be diminished by reason. of the culpable conduct attributable to plaintiff Josephine E. McClure, including contributory negligence and assumption of the risk, in the proportion in which the culpable conduct attributable to plaintiff Josephine E. McClure, f tothe culpable conduct which caused the damages. NINTH AFFIRMATIVE DEFENSE 15. The Complaint fails to state a claim upon which punitive damages can be granted. TENTH AFFIRMATIVE DEFENSE 16. The imposition of punitive damages on the facts alleged in the Complaint would violate the excessive fmes and due process clauses of the Constitution of the United States and of the State of New York. ELEVENTH AFFIRMATIVE DEFENSE 17. 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, Article 1, Section 6 of the New York State Constitution. TWELVTH AFFIRMATIVE DEFENSE 18. Plaintiff's claim for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. THIRTEENTH AFFIRMATIVE DEFENSE 19. Each item of economic loss alleged in the Complaint was, or with reasonable certainty will be, replaced or indemnified in whole or in part from collateral sources. I 4 4 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 FOURTEENTH AFFIRMATIVE DEFENSE 20. The Complaint fails to state a cause of action upon which relief may be granted as against this answering defendant. FIFTEENTH AFFIRMATIVE DEFENSE 21. Whatever damages, if any, which plaintiff Josephine E. McClure, sustained as alleged in the Complaint, if he was not caused in whole or in part or contributed to by reason of her culpable conduct, was caused by reason of culpable conduct on the part of others to whom the plaintiff has given a releasc, and, accordingly, this answering defendant is entitled to have the claim of the plaintiff herein, if any, reduced in accordance with Section 15-108 of the General Obligations Law. SIXTEENTH AFFIRMATIVE DEFENSE 22. This answering defendant did not supervise or control any of .the work performed by plaintiff Josephine E. McClure SEVENTEENTH AFFIRMATIVE DEFENSE 23. It is denied that plaintiff Josephine E. McClure, was ever exposed to a product sold or manufactured by this answering defendant which contained asbestos. However, should plaintiff submit evidence to the contrary, then this answering defendant alleges that any asbestos fibers in such product were entirely encapsulated. Therefore, such products did not omit respirable asbestos fibers into the air, and, such exposure could not have contributed to the injuries of plaintiff Josephine E. McClure EIGHTEENTH AFFIRMATIVE DEFENSE 24. If it should be proven at the time of trialthat any of this answering defendant's products were furnished to employers of plaintiff Josephiñê E. McClure, and that she came into 5 5 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 contact with these products, which is specifically denied, that any such products were misused, modified and altered by plaintiff Josephine E. McClure, her co-workers and/or her employers. NINTEENTH AFFIllMATIVE DEFENSE. 25. Ifit should be proven at the time of trialthat any of this answering defendant's products were furnished to employers of plaintiff Josephine E. McClure, and that he came into . contact with these products, which is specifically denied, that any such product was furnished in strict conformity to the conditions specified or fumished by plaintiff Josephine E. McClure, and her employers, who were sophisticated users of the product. TWENTIETH AFFIRMATIVE DEFENSE 26. If it should be proven at the time of trialthat any of this answering defendant's products were furnished to plaintiff Josephine E. McClure, or her employers and that he came into contact with these products, which is specifically denied, that any such products were accompañied by adequate warnings in conformity with the existing state of the art in regard to the foreseeabic use of said products or materials. TWENTY-FIRST AFFIRMÁTIVE DEFENSE 27, If plaintiff Josephiñê E. McClure, used products distributed by this any answering defendant, it is alleged that said products were produced pursuant to goverñmeñt specifications and as such, this answering defendant is relieved of any responsibility for the damages which plaintiff claims. TWENTY-SECOND AFFIRMATIVE DEFENSE 28. Any oral warrañties upon which plaintiff Josephine E. McClure, relied are barred by the statute of frauds. 6 6 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 TWENTY-THIRD AFFIRMATIVE DEFENSE 29. Plaintiff failed to give timely notice to this answering defendant of any breach of warranty claim. TWENTY-FOURTH AFFIRMATIVE DEFENSE 30. This defendant never made warranties to paintiff Josephine E. answering any McClure, upon which he relied. TWENTY-FIFTH AFFIRMATIVE DEFENSE 31. Any alleged warranties were properly disclaimed by labels, notice and warnings. TWENTY-SIXTH AFFIRMATIVE DEFENSE . 32. Plaintiff failed to timely assert any claim under UCC Section 2-725, and accordingly, any such claim is now barred. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 33. Upon information and belief, plaintiff Josephine E. McClure, contributed to her illness by use of drugs, medication and/or tobacco products. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 34. Plaintiff has failed to state a claim agamst defendant Honeywell International, Inc. for breach of warranty in that the Complaint fails to allege that there was privity between Honeywell International, Inc. and plaintiff Josephine E. McClure, and furthermore, such privity between Honeywell International, Inc. and plaintiff did not exist. TWENTY-NINTH AFFIRMATIVE DEFENSE 35. Plaintiff Josepliiize E. McClure's employer or employers, including said employers' agents, servants, and employees, by reason of the warnings and handling information given to them and their own longstanding and continuous experience with the 7 7 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 products or materials, if any, referred to in the Complaint, are and were sophisticated users of any and all such products or materials, and thereby acquired a separate and affirmative duty to warn their employees, including plaintiff Josephine E. McClure, of any alleged potential harmful effects from the use or misuse of said products or materials. By reason of the employers' foregoing, said failure to discharge said duty directly and proximately caused any and all damages and injuries, if any, complained of by plaintiff. THIRTIETH AFFIRMATIVE DEFENSE 36. Products or materials supplied by this answering defendant, if any, to plaintiff Josephine E. McClure's employer or employers, or others were produced in conformity with the existing state of the arts,and the alleged hazards or dangers of said products or materials, if any, were created by the conduc of plaintiff Josephine E. McClure's employer or employers, and others. THIRTY-FIRST AFFIRMATIVE DEFENSE 37. At alltimes material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable, unsafe, iñherently dangerous or hazardous character or nature of products containing asbestos when used in the manner and purpose described by plaintiff Josephiñ6 E. McClure Therefore, there was no duty for this answering defendant to know of such character or nature or to warn plaintiff Josephine E. McClure, or others similarly situated. THIRTY-SECOND AFFIRMATIVE DEFENSE 38. To the extent that plaintiff relied on the New York Law L. 1986, Chapter 682, Section 4 as grounds for reviving or maintaining the action, said statute(s) is unconstitutional, 8 8 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 deprives this answering defendant of its constitutional rights, and is wholly v id and unenforceable. Accordingly, plaintiff's claim is time barred. THIRTY-THIRD AFFIRMATIVE DEFENSE 39. The action cannot proceed in the absence of all parties who should be named in accordance with CPLR §1001. THIRTY-FOURTH AFFIRMATIVE DEFENSE 40. With respect to the products or materials of this answering defendant referred to in the Complaint, if any, this answering defendant made no representations to the public at large in order to induce purchase of said products or materials. THIRTY-FIFTH AFFIRMATIVE DEFENSE 41. Assuming, but without conceding, that products manufactured or supplied by this defendant were used plaintiff Josephine E. such asbestos- answering by McClure, any containing products were designed and manufactured pursuant to and in accordance with specifications mandated by the federal, state and/or local goverñmeñts and/or their agencies. The knowledge of the federal, state and/or local goveñuneñts and/or agencies of any possible health hazards from use of such products was equal to or superior to that of this answering defendant. Accordingly, this answering defendant is not liable to plaintiff. THIRTY-SIXTH AFFIRMATIVE DEFENSE 42. As a result of the acts, conduct and omissiöns of plaintiff's agents, the allegations set forth in the Complaint are barred by the doctrine of estoppel and waiver. HIRTY-SEVENTH AFFIRMATIVE DEFENSE 43. The benefits of any products or materials of this answering defendant referred to in the Complaint outweigh the risk of danger, if any, inherent in said products or materials. 9 9 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 44. Upon information and belief, some or all of the damages alleged in the Complaint are barred and/or limited by the provisions of §4545 of the CPLR. AS AND FOR A CROSS-CLAIM AGAINST ALL DEFENDANTS THIS ANSWERING DEFENDANT ALLEGES: 45. That any injuries or damages sustained by the plaintiff herein resulting from the alleged incidents described in plaintiff's Complaint were sustained in whole or in part through the negligence, want of care, or fault of the other defendants. 46. That if it is determined that this defendant is liable in any degree to plaintiff, then this defendant is entitled to indemnification and/or contribution to have the liability apportioned among and between the co-defendants and in accordance with applicable law. WHEREFORE, defendant, Honeywell Intemational Inc., demands judgment as follows: a. Dismissing the Complaint of the plaintiff herein, together with costs and disbursements of this action; or in the alternative; b. That the ultimate rights and responsibilities as between all parties, including the culpable conduct attributable to plaintiff Josephine E. McClure, and plaintiff's assumption of the risk, be determined in this action; c. That if plaintiff recovers a judgment for any amount against defendant Honeywell International, Inc., the amount of such damages recovered be dimiñished in the proportion to which the culpable conduct attributable to the plaintiff Josephine E. McClure, and the plaintiff's assumption of the risk bears to the culpable conduct which caused the dãindges; and 10 10 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 d. Such other and further relief as this Court may deem just and proper, ogether with the costs and disbursements of this action. Dated: April 1, 2019 Pittsford, New York HARRIS BEACH PLLC Mi hael J. Masin , sq. Attorneys for Defe dant Honeywell International Inc. 99 Garnsey Road Pittsford, New York 14534 (585) 419-8800 TO: John E. Richmond, Esq. LIPSITZ & PONTERIO, LLC Attorneys for Plaintiff 424 Main Street, Suite 1500 Buffalo, New York 14202 11 11 of 12 FILED: ERIE COUNTY CLERK 04/01/2019 12:13 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/01/2019 VERIFICATION STATE OF NEW YORK ) COUNTY OF MONROE ) ss: MICHAEL J. MASINO, being duly sworn, deposes and says: that he is one of the attorneys for defendant Honeywell International Inc. in the above-entitled action; that he has read the foregoing Answer and knows the contents thereof; that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes them to be true. The basis for such information and belief is the Complaint and documents provided by defendant. That the reason this verification is made by the deponent and not by an officer of said defeñdañt is that there is no officer of said defendant now within the County of Monroe, where deponent resides and has his office; and the sources of deponent's information and the grounds of his belief as to all matters herein stated are the records of said defendant and the results of an investigation into this matter, conducted on behalf of said defendant. M HAEL J.MA f Sworn to before me this /st day of April, 2019. Notary Public AMY M. DANN Notary Public,State of New York Qualifiedin Wayne · County No. 01DA5077658 Commission Expires May 12, 3090974816-8712-1040v1 12 12 of 12