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FILED: ERIE COUNTY CLERK 04/08/2019 03:40 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/08/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
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This Document Relates To:
Index No. 802542/2019
JOSEPHINE E. McCLURE,
Plaintiff,
VERIFIED ANSWER
vs.
CBS CORPORATION, et al.,
Defendants.
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ANSWER TO PLAINTIFF'S ASBESTOS
COMPLAINT AND AFFIRMATIVE DEFENSES OF
DEFENDANTITTLLC
Defendant ITT LLC (hereinafter referred to as "ITT"), as itsAnswer to Plaintiff's Asbestos
Complaint, (hereinafter referred to as "Complaint") and Affirmative Defenses, states as follows:
1. ITT is without knowledge or information to form a belief as to the truth of the
allegations set forth in Paragraph 1.
2. To the extent that Paragraph 2 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 2. To the extent that Paragraph 2 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to fonm a belief as to
the truth of the allegations set forth against those entities. Further, the application of NY Civ. Prac.
workers'
L. Art. 16 §1602 and the compensation law are questions of law to be detennined by this
Court.
3-16. Paragraphs 3 through 16 make no allegation against ITT and therefore ITT makes
no answer thereto.
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17. To the extent that Paragraph 17 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 17. Answering further, the allegation that ITT has conducted
and/or transacted business in New York is a question of law to be adjudicated by this Court. To
the extent that Paragraph 17 contains allegations against entities other than ITT, ITT is without
knowledge or information to form a belief as to the truth of the allegations set forth against those
entities.
18-21. Paragraphs 18 through 21 make no allegation against ITT and therefore ITT makes
no answer thereto.
22-27. To the extent that the allegations in Paragraphs 22 through 27 are directed against
ITT, ITT denies the allegations. To the extent that Paragraphs 22 through 27 contain allegations
against entities other than ITT, ITT is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
AS AND FOR A FIRST CAUSE OF ACTION
28. ITT repeats each and every answer contained in Paragraphs 1 through 27 of this
Answer herein with the same force and effect is as if fully set forth herein.
29. The allegations in Paragraph 29 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 29 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 29. To the extent that Paragraph 29 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
30-40. To the extent that the allegations in Paragraphs 30 through 40 are directed against
ITT, ITT denies the allegations. To the extent Paragraphs 30 through 40 contain allegations against
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entities other than ITT, ITT is without knowledge or infonnation sufficient to form a belief as to
the truth of the allegations set forth against those entities.
41. ITT denies the allegations in Paragraph 41.
42-43. To the extent that Paragraphs 42 and 43 contain allegations against ITT, ITT denies
the allegations set forth in Paragraphs 42 and 43. To the extent that Paragraphs 42 and 43 contain
allegations against entities other than ITT, ITT is without knowledge or information sufficient to
fonn a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A SECOND CAUSE OF ACTION
44. ITT repeats each and every answer contained in Paragraphs 1 through 43 of this
Answer herein with the same force and effect is as if fully set forth herein.
45-46. To the extent that Paragraphs 45 and 46 contain allegations against ITT, ITT denies
the allegations set forth in Paragraphs 45 and 46. To the extent that Paragraphs 45 and 46 contain
allegations against entities other than ITT, ITT is without knowledge or information sufficient to
form a belief as to the truth of the allegations set forth against those entities.
47-48. The allegations in Paragraphs 47 and 48 are overly broad, vague, and lack
foundation. Therefore, to the extent that Paragraphs 47 and 48 contain allegations against ITT,
ITT denies the allegations set forth in Paragraphs 47 and 48. To the extent that Paragraphs 47 and
48 contain allegations against entities other than ITT, ITT is without knowledge or infonnation
sufficient to fonn a belief as to the truth of the allegations set forth against those entities.
49. To the extent that Paragraph 49 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 49. To the extent that Paragraph 49 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
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AS AND FOR A THIRD CAUSE OF ACTION
50. ITT repeats each and every answer contained in Paragraphs 1 through 49 of this
Answer herein with the same force and effect is as if fully set forth herein.
51-59. To the extent that Paragraphs 51 through 59 contain allegations against ITT, ITT
denies the allegations set forth in Paragraphs 51 through 59. To the extent that Paragraphs 51
through 59 contain allegations against entities other than ITT, ITT is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
AS AND FOR A FOURTH CAUSE OF ACTION
60. ITT repeats each and every answer contained in Paragraphs 1 through 59 of this
Answer herein with the same force and effect is as if fully set forth herein.
61-65. To the extent that Paragraphs 61 through 65 contain allegations against ITT, ITT
denies the allegations set forth in Paragraphs 61 through 65. To the extent that Paragraphs 61
through 65 contain allegations against entities other than ITT, ITT is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
WHEREFORE, Defendant ITT LLC denies that Plaintiff is entitled to compensatory and
punitive damages and further requests that Plaintiff's claims be dismissed with prejudice and any
other relief this Honorable Court deems just.
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AFFIRMATIVE DEFENSES
First Defense
Plaintiff s Complaint fails to state a claim upon which relief may be granted.
Second Defense
Plaintiff's Complaint is barred by the applicable statute of repose or statute of limitations.
Third Defense
Any claim or cause of action Plaintiff may have is barred, in whole or in part, by the
doctrines of laches, waiver, collateral estoppel, and/or res judicata.
Fourth Defense
Plaintiff has failed to plead the claims of fraud and conspiracy with proper specificity and,
as such, all claims premised on fraud and/or conspiracy must be dismissed.
Fifth Defense
Workers'
The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable
Compensation statutes and shall have constituted an industrial disability and Plaintiff's exclusive
remedy, if any, shall lie within the terms and ambit of said statute.
Sixth Defense
Plaintiff's claims and causes of action against Defendant are barred, in whole or in part,
because Defendant owed no legal duty to Plaintiff or, if itowed such a legal duty, itdid not breach
such duty.
Seventh Defense
The injuries allegedly sustained by Plaintiff, if any, were proximately caused by Plaintiff's
free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and
thus assuming the risks ordinary incident to such acts.
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Eighth Defense
The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of the
risks, hazards, and dangers incident to the occupation of Plaintiff, all of which were open, obvious
and well known to Plaintiff, and the action is barred by Plaintiff's assumption of the risks thereof.
Ninth Defense
This action is barred, in whole or in part, by the misuse, abuse, or substantial modification
of the product.
Tenth Defense
The negligent acts or omissions of Plaintiff were the sole proximate cause or proximate
contributing cause of the injuries and damages of which Plaintiff complains.
Eleventh Defense
Plaintiff, Josephine E. McClure, contributed to his illness, either in whole or in part, by the
use of other substances, products, medications and drugs. To the extent that Plaintiff, Josephine
E. McClure, used any tobacco products, any damages awarded should be reduced in whole or in
part by the amount of his damages caused by smoking.
Twelfth Defense
That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or contributed
to by the fault, neglect, and want of care on the part of Plaintiff or of others for whose acts or
omissions or breach of legal duty Defendant is not liable.
Thirteenth Defense
Plaintiff's alleged damages were negligently caused in whole or in part by persons, finus,
corporations, or entities other than those parties before this Court and such negligence either bars
or comparatively reduces any possible recovery by Plaintiff.
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Fourteenth Defense
Insofar as the Complaint alleges a cause of action accruing on or after September 1, 1975
to recover damages for personal injuries, the amount of damages recoverable thereon must be
diminished by reason of the culpable conduct attributable to Plaintiff, including contributory
negligence and assumption of risk, in the proportion which the culpable conduct attributable to
Plaintiff bear to the culpable conduct which caused the damages.
Fifteenth Defense
If Plaintiff suffered damages as a result of the allegations set forth in the Complaint, then
those damages were the result of intervening or superseding acts or omissions of persons other
than the Defendant.
Sixteenth Defense
IfPlaintiff suffered injuries as a proximate result of a condition of Defendant's products,
any of Defendant's products would have been supplied to an employer of Plaintiff. Such employer
was a knowledgeable and sophisticated user of said products, and thus Defendant had no further
legal duty to warn or instruct Plaintiff.
Seventeenth Defense
Ifany of the allegations of Plaintiff with respect to the defective condition of asbestos or
asbestos products are proven, then Plaintiff are barred from any recovery due to the fact that at all
relevant times there was no known substitute for asbestos or asbestos products.
Eighteenth Defense
The state of the medical and scientific knowledge at all relevant times was such that
Defendant neither knew nor could have known that its asbestos-containing products presented a
foreseeable risk of hann to any person in the nonnal and expected use of those products.
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Nineteenth Defense
To the extent that Defendant conformed to the scientific knowledge and research data
available throughout the industry and scientific community, Defendant shall have fulfilled its
obligations, ifany, herein, and Plaintiff's claims shall be barred, in whole or in part.
Twentieth Defense
If Plaintiff sustained injuries as a result of exposure to any product manufactured by
Defendant, the degree of such damage attributable to Defendant's product is negligible, and hence,
d_e minimis.
Twenty-First Defense
Defendant cannot be held jointly and severally liable for acts or omissions of other
defendants because the acts and omissions of those other defendants were separate and distinct
and the alleged harm caused by each defendant is divisible.
Twenty-Second Defense
Defendant is not liable for any damages alleged to have resulted from exposure to any of
its products which were manufactured pursuant to Government specifications.
Twenty-Third Defense
Insofar as Plaintiff relies upon allegations of negligence, breaches of warranties, fraudulent
representations, and violations of obligations of strict product liability as against Defendant prior
to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of
action by reason of the failure to allege the freedom of Plaintiff from contributory negligence or
fault; and that if Plaintiff sustained the injuries, losses, and other damages complained of in the
Complaint, they were caused and brought about, in whole or in part, by the negligence,
carelessness, assumption of risk, fault or other culpable conduct of Plaintiff.
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Twenty-Fourth Defense
To the extent that Plaintiff alleges rights assertedly derived from oral warranties or
undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds.
Twenty-Fifth Defense
To the extent Plaintiff alleges a cause of action for express and/or implied warranties and
the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to
allege privity of contract and/or privity of warranties between Plaintiff and Defendant.
Twenty-Sixth Defense
To the extent that any breach of warranty is alleged, Plaintiff has failed to give proper and
prompt notice of any such breach to Defendant.
Twenty-Seventh Defense
Plaintiff did not directly or indirectly purchase any asbestos-containing products or
materials from Defendant, and Plaintiff neither received nor relied upon any representation or
warranty allegedly made by Defendant.
Twenty-Eighth Defense
The action cannot proceed in the absence of all parties who should be named in accordance
with New York CPLR § 1001.
Twenty-Ninth Defense
The recoverable damages, ifany, should be diminished under the collateral source rule set
forth in New York CPLR § 4545.
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Thirtieth Defense
To the extent that Plaintiff may recover damages from Defendant, Defendant is entitled to
indemnification and/or contribution, in whole or in part, from each of the other defendants in this
action.
Thirty-First Defense
If Defendant is ultimately found to be liable to Plaintiff, then, pursuant to New York CPLR
Article 16, itshall only be liable for itsequitable share of Plaintiff's recovery since any liability
which will be found against itwill be insufficient to impose joint liability.
Thirty-Second Defense
Pursuant to New York CPLR Article the if of Defendant for non-
16, liability, any,
economic loss shall not exceed itsequitable share of liability.
Thirty-Third Defense
To the extent Plaintiff seeks to hold Defendant liable retroactively for conduct that was not
actionable at the time itoccurred, Plaintiff's claims violate Defendant's right to be free from ex
po_st facto laws and Defendant's procedural and substantive due process rights under the
Constitution of the United States.
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Thirty-Fourth Defense
Any claim for exemplary and/or punitive damages is barred because such damages are not
recoverable or warranted in this action.
Thirty-Fifth Defense
The imposition of punitive damages on the facts alleged in the Complaint is barred by the
United States Constitution and the Constitution of the State of New York.
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Thirty-Sixth Defense
Plaintiff's claim for punitive damages cannot be sustained because it would violate
Defendant's rights under the Constitutions of the United States and the State of New York,
including, but not limited to:
(a) Defendant's procedural and substantive due process rights and equal protection
rights under the Fifth and Fourteenth Amendments of the United States
Constitution and under cognate provisions of the New York Constitution;
(b) Defendant's rights under the double jeopardy clauses of the Fifth Amendment of
the United States Constitution and Article I, Section 6 of the New York State
Constitution;
fines"
(c) Defendant's rights to protection from "excessive as provided in the
Constitutions of the United States and the State of New York.
Thirty-Seventh Defense
The law of New York and the Due Process Clause of the Fourteenth Amendment and the
Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant
simply for lawfully selling a legal product.
Thirty-Eighth Defense
Punitive damages are inappropriate to serve deterrence and punishment objectives because
those will be fully served by past and future liability for the same conduct at issue in this case.
Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish
Defendant, except to the extent the alleged conduct has had an impact in this State.
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Thirty-Ninth Defense
All defenses which have been or will be asserted by other defendants and/or third-party
defendants in this action are adopted and incorporated herein by reference as if fully set forth at
length as defenses to Plaintiff's Complaint. In addition, Defendant will rely upon any and allother
further defenses which become available or appear during discovery proceedings in this action and
hereby specifically reserves the right to amend its Answer for purposes of asserting further
additional defenses.
Dated: April 8, 2019
Respectfully submitted,
ITT LLC
Beth L. Hughes
One of the attorneys for ITT LLC
Beth L. Hughes
Brady S. Edwards
Morgan Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178-0060
Phone: (212) 309-6000
Fax: (212) 309-6001
beth.hughes@morganlewis.com
To: Lipsitz & Ponterio, LLC
135 Delaware Avenue, Fifth Floor
Buffalo, NY 14202-2415
Attorneys for Plaintiff
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
BETH L. HUGHES, an attorney duly admitted to practice law before the Courts of the
State of New York, deposes and says that I am attorney for ITT LLC, with an office located at 101
Park Avenue, New York, New York, that I have read the foregoing Answer and Affirmative
Defenses to Plaintiff's Complaint on Behalf of Defendant ITT LLC and know the contents thereof,
that the same is true upon information and belief and I believe itto be true, that the grounds of my
belief are public records, records and documents currently in my possession pertaining to this
matter, and conversations with client's agents, and that the reason why this verification is made by
me and not by said defendant is that said defendant is a foreign corporation which has no offices
located in New York County where I maintain an office.
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
Dated: April 8, 2019
New York, New York
Beth L. Hughes
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