Preview
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NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019
SUPREME COURT OF THE STATE OF NEW YORK
EIGHTH JUDICIAL DISTRICT
This Document Applies to:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
JOSEPHINE E. McCLURE, ANSWER OF DEFENDANT TO
PLAINTIFF'S VERIFIED COMPLAINT
Plaintiff,
-against- Index No. 802542/2019
AIR & LIQUID SYSTEMS CORPORATION, et al.,
Defendants.
Defendant CBS Corporation, a Delaware corporation, f/k/a Viacom Inc., successor by
merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric
Corporation ("Westinghouse"), by counsel, responds to the allegations contained in the
("Plaintiff"
Plaintiff's herein referred to singularly or plurally, living or deceased,
possessively and/or in any such capacity as may apply) Verified Complaint (hereinafter
"Complaint") as follows:
1. Westinghouse denies knowledge or information sufficient to form a belief as
to the truth of the allegations set forth in paragraph 1 of the Complaint.
RESPONSE TO ARTICLE 16 ALLEGATIONS
2. The allegations contained in paragraph 2 of the Complaint call for a legal
conclusion and Westinghouse refers allsuch conclusions to the Court. To the extent that
these allegations hold Westinghouse liable of wrongful conduct, Westinghouse denies the
same.
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RESPONSE TO DEFENDANT ALLEGATIONS
3. In response to paragraph 3 of the Complaint, Defendant admits that it isa
corporation having its principal place of business in New York and as Westinghouse was
authorized to conduct business in New York. Westinghouse further admits that at certain
times in itspast, it manufactured, sold or distributed some products which contained
bound or encapsulated asbestos. Westinghouse denies any allegations beyond the scope of
this limited admission.
4-21. The allegations contained in paragraphs 4 through 21 of the Complaint
pertain to defendants other than Westinghouse and Westinghouse has no duty to respond.
To the extent any such duty exists, the allegations are denied for lack of knowledge or
information sufficient to form a belief as to the truth contained therein.
RESPONSE TO ALLEGATIONS OF FACT
22. The allegations in paragraph 22 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
23. The allegations in paragraph 23 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
24. The allegations in paragraph 24 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
25. The allegations in paragraph 25 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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therefore denies these allegations.
26. The allegations in paragraph 26 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations. Westinghouse further denies that it caused or
contributed to the Plaintiff's alleged injuries.
27. The allegations in paragraph 27 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations. Westinghouse further denies that it caused or
contributed to the Plaintiff's alleged injuries.
RESPONSE TO FIRST CAUSE OF ACTION FOR NEGLIGENT FAILURE TO WARN AGAINST
THE DEFENDANTS NAMED HEREIN
28. Westinghouse repeats and restates each and every response contained in
paragraphs 1 through 27 of this answer as if fully set forth herein.
29. Westinghouse denies knowledge or information sufficient to form a belief as
to the truth of the allegations set forth in paragraph 29 of the Complaint.
30. The allegations in paragraph 30 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
31. The allegations in paragraph 31 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
32. The allegations in paragraph 32 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
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33. The allegations in paragraph 33 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
34. The allegations in paragraph 34 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
35. The allegations in paragraph 35 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
36. The allegations in paragraph 36 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
37. The allegations in paragraph 37 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
38. The allegations in paragraph 38 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
39. The allegations in paragraph 39 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore
40. The allegations in paragraph 40 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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therefore denies these allegations.. Westinghouse further denies that it caused or
contributed to the Plaintiffs alleged disease.
41. Westinghouse denies knowledge or information sufficient to form a belief as
to the truth of the allegations set forth in paragraph 41 of the Complaint.
42. The allegations contained in paragraph 42 of the Complaint call for a legal
conclusion and Westinghouse refers all legal conclusions to the Court. To the extent any
further responses is deemed necessary, Westinghouse denies that it caused or contributed
to the Plaintiffs alleged injuries, pain, suffering, expenses, losses and damages.
43. Westinghouse denies the allegations set forth in paragraph 43 of the
Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse
further denies that it caused or contributed to the Plaintiffs alleged damages.
RESPONSE TO SECOND CAUSE OF ACTION FOR STRICT PRODUCTS LIABILITY
AGAINST THE DEFENDANTS NAMED HEREIN
44. Westinghouse repeats and restates each and every response contained in
paragraphs 1 through 43 of this answer as if fully set forth herein.
45. Westinghouse denies the allegations set forth in paragraph 45 of the
Complaint insofar as the allegations relate or pertain to Westinghouse.
46. Westinghouse denies the allegations set forth in paragraph 46 of the
Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse
further denies that it caused or contributed to the Plaintiffs alleged injuries and damages.
47. The allegations in paragraph 47 of the Complaint are so broad, vague, and
ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
therefore denies these allegations.
48. Westinghouse denies the allegations set forth in paragraph 48 of the
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Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse
further denies that it caused or contributed to the Plaintiffs alleged injuries and damages.
49. Westinghouse denies the allegations set forth in paragraph 49 of the
Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse
further denies that it isliable to the Plaintiff in any respect and repeats and realleges its
"42" "43"
responses to paragraphs and of the Complaint.
RESPONSE TO THIRD CAUSE OF ACTION FOR NEGLIGENT CONTRACTING
ACTIVITIES AGAINST DEFENDANTS FRONTIER INSULATION CONTRACTORS, INC.
f/k/a FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION
CONTRACTORS, INC. f/k/a FRONTIER INSULATION AND ASBESTOS INC., INDUSTRIAL
INSULATION SALES, INC., AND NIAGARA INSULATIONS, INC., f/k/a NIAGARA
ASBESTOS CO., INC.
50. Westinghouse repeats and restates each and every response contained in
paragraphs 1 through 49 of this answer as if fully set forth herein.
51-59. The allegations contained in paragraphs 51 through 59 of the Complaint
pertain to defendants other than Westinghouse and Westinghouse has no duty to respond.
To the extent any such duty exists, the allegations are denied for lack of knowledge or
information sufficient to form a belief as to the truth contained therein.
RESPONSE TO FOURTH CAUSE OF ACTION AGAINST DEFENDANTS, FRONTIER
INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION CONTRACTORS, INC.
f/k/a FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION
AND ASBESTOS INC.,
60. Westinghouse repeats and restates each and every response contained in
paragraphs 1 through 59 of this answer as if fully set forth herein.
61-65. The allegations contained in paragraphs 61 through 65 of the Complaint
pertain to defendants other than Westinghouse and Westinghouse has no duty to respond.
To the extent any such duty exists, the allegations are denied for lack of knowledge or
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information sufficient to form a belief as to the truth contained therein.
66. Westinghouse denies each and every allegation contained in the Complaint
not specifically admitted herein.
67. Westinghouse denies that the Plaintiff is entitled to the relief requested in
the addendum clauses contained in the First through Fourth Causes of Action contained in
the Complaint, and anywhere else so listed.
AFFIRMATIVE DEFENSES
1. In the event Plaintiff recovers a verdict or judgment against Westinghouse,
then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those
amounts which have been or will, with reasonable certainty, replace or indemnify Plaintiff,
in whole or in part, for any past or future claims, economic loss, from any collateral source
workers'
including but not limited to insurance, social security, compensation or employee
benefit programs.
2. Plaintiff's claims are barred by the applicable statute of limitations.
Westinghouse gave, made or otherwise extended no warranties, whether express or
implied, upon which Plaintiff had a right to rely.
3. Westinghouse breached no warranties, whether express or implied.
4. The doctrine of strict liability in tort is inapplicable to this litigation.
5. Plaintiff's claims against Westinghouse are barred by the doctrine of
assumption of the risk.
6. Plaintiff fails to state a claim upon which relief may be granted.
7. Plaintiff's delay in commencing suit has resulted in prejudice to
Westinghouse and the equitable doctrine of laches bars this suit.
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8. The Plaintiff failed to properly affect personal jurisdiction over
Westinghouse.
9. Claims brought under the New York Statute of Limitations enacted July 31,
1986 are time-barred because the statute is unconstitutional.
10. The Complaint must be dismissed by reason of improper venue.
11. This Court lacks jurisdiction over the subject matter of this action.
12. All claims which on New York Section 4 are time-
rely Law, L.1986, C.682,
barred in their entirety.
13. This Court lacks jurisdiction over Westinghouse based on insufficient and
untimely service of process.
14. Westinghouse pleads that it isimmune from civil liability of any form or
workers'
nature in this matter under New York's compensation law ifPlaintiff was an
workers'
employee of defendant during the period of alleged exposure. The said
compensation law provides Worker's Compensation benefits for the disability of an
employee ifsuch resulted from injury or occupational disease incurred or sustained in the
course of employment as an exclusive remedy.
15. The action is barred by virtue of the four year Statute of Limitations
prescribed by Section 2-725 of the Uniform Commercial Code; by virtue of failure of
Plaintiff to give requisite notice to this answering defendant under Article 2 of the Uniform
Commercial Code, in so faras a cause of action is alleged for breach of warranty or
warranties, express or implied, as well as by virtue of the absence of privity or of any
contractual relationship between the Plaintiff and Westinghouse.
16. Plaintiff's claims are time barred in that Section 214-C of the New York CPLR
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is unconstitutional.
17. At all times during the conduct of its operations, allagents, servants and
employees of Westinghouse used proper methods of handling the products complained of
in conformity with the available knowledge, state of the art, and research of the scientific
and industrial communities.
18. To the extent that the Plaintiff was injured as a result of exposure to asbestos
and/or asbestos-containing materials at a situs of construction, demolition, renovation or
excavation where Westinghouse was a contractor or agent, which is denied, the presence
or use of asbestos or asbestos-containing materials was a result of strict conformity with
specifications or requirements supplied by such Plaintiff or Plaintiff's employers, the
United States Government or other third parties.
19. To the extent that Plaintiff was exposed to any product containing asbestos
as a result of conduct by Westinghouse, which is denied, said exposure was de minimis and
not a substantial contributing factor to any asbestos-related disease which Plaintiff may
have developed, thus requiring dismissal of the Complaint as against Westinghouse.
20. Upon information and belief, Plaintiff failed to mitigate or otherwise act to
lessen or reduce the injuries and disabilities alleged in the Complaint.
21. Plaintiff does not have standing to maintain the action.
22. IfWestinghouse should be found liable to the Plaintiff, such liability arose out
of the negligence of co-defendants entitling Westinghouse to indemnification and/or
contribution, in whole or in part, from such parties for the amount of any verdict or an
amount of any judgment which may be recovered against Westinghouse.
23. Westinghouse shows that ifPlaintiff has released, settled, entered into an
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accord and satisfaction, or otherwise compromised Plaintiff s claims herein, then,
accordingly, said claims are barred by payment, accord and satisfaction, arbitration and
award, release, and res judicata; alternatively, Westinghouse shows that ifPlaintiff has
accepted compensation in partial settlement of Plaintiff s claims, then Westinghouse is
entitled to a set-off in said amount.
24. Because of the generality of the allegations in the Complaint, Westinghouse
reserves the right to amend its answer and affirmative defenses ifinvestigation, discovery
and further information should warrant such amendment, and, further, to assert any
applicable matters of law during the pendency of this action.
25. Ifit is determined that the plaintiffs were exposed to any Westinghouse
product, which product or components of those products were acquired from or sold by or
used on behalf of the United States of America or any State or agency thereof, then
Westinghouse is entitled to any sovereign or government immunity or defense available to
the United States and/or relevant state and/or relevant agency thereof including, but not
limited to, the federal government contractor defense.
26. Plaintiff's purported exposure to asbestos occurred on a federal enclave. All
claims arising from alleged incidents on a federal enclave must be determined in
accordance with federal laws.
27. The design, construction, maintenance, and all safety aspects of the
equipment at issue implicates government contracts that give rise to federal laws, including
but not limited to the War Powers Acts.
28. Westinghouse acted under the authority of an officer or agency of the United
States, within the meaning of 28 U.S.C. § 1442(a)(1). Westinghouse acted under the
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direction, control and demand of the U.S. Government, the Secretary of the Navy or his
delegee based on extensive and strict government design specifications.
29. The government mandated precise specifications regarding the products it
needed, and Westinghouse conformed to those specifications. Westinghouse cannot be
liable to a third party in tort ifthe government approved reasonably precise specifications
and Westinghouse conformed to those specifications.
30. Pursuant to the Defense Production Act, Westinghouse cannot be held liable
for damages or penalties for any act or failure to act resulting directly or indirectly from
compliance with a rule, regulation, or order issued pursuant to the Defense Production Act.
31. All defenses that have been or will be asserted by other defendants in this
action are adopted and incorporated by reference as iffully set forth herein. In addition,
Westinghouse will rely upon any and all other further defenses which become available or
appear during discovery in this action and hereby specifically reserves its right to amend
its answer for the purpose of asserting any such additional affirmative defenses.
32. The Court lacks personal jurisdiction over the answering defendant.
AS AND FOR A CROSS-CLAIM AGAINST OTHER DEFENDANTS NAMED IN THIS CASE,
DEFENDANT WESTINGHOUSE STATES:
33. Ifplaintiffs sustained damages in the manner alleged in the complaint, all of
which is denied by this answering defendant, such damages were caused by reason of
negligence, breach of contract obligation or warranty, nuisance or trespass or are
plaintiffs'
otherwise the proper responsibility of other defendants named in this case or
culpable conduct.
34. By reason of the foregoing, the answering defendant is entitled to
indemnification or contribution from, and to have judgment over against, its co-defendants, or
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some of them, for all or part of any verdict or judgment that plaintiffs may recover against the
answering defendant.
ANSWER TO ALL CROSS-CLAIMS
Westinghouse hereby answers the cross-claims of each of the other defendants and
any third-party defendant named in this action, however asserted or alleged, and says:
35. All cross-claims for contribution alleged against Westinghouse by any party
defendant or third-party defendant are denied.
36. All cross-claims for indemnification alleged against Westinghouse by any
party defendant or third-party defendant are denied.
37. All cross-claims for contractual indemnification alleged against
Westinghouse by any party defendant or third-party defendant are denied.
WHEREFORE, Defendant Westinghouse requests the following relief:
a. Judgment dismissing the Complaint;
b. Costs and disbursements;
Attorneys'
c. fees;
d. Indemnification and/or contribution, either in whole, or in part,
against co-defendants with judgment over and against such parties for
allor part of any verdict a judgment which may be recovered herein
by any party to this action against defendant Westinghouse; and
e. Any other relief to which it may be justly entitled.
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DEMAND FOR IURY
Westinghouse hereby demands a trial by jury in this action.
Dated: Newark, New Jersey ___
April 19, 2019 Dennis E. Vega, .
Tanenbaum Keale LLP
Attorneys for Defendant
CBS Corporation, a Delaware corporation,
f/k/a Viacom Inc., successor by merger to
CBS Corporation, a Pennsylvania corporation,
f/k/a Westinghouse Electric Corporation
Three Gateway Center, Suite 1301
100 Mulberry Street
Newark, NJ 07102
(973) 242-0002
TO: LIPSITZ & PONTERIO, LLC
Attorneys for Plaintiff
424 Main Street, Suite 1500
Buffalo, New York 14202
(716) 849-0701
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SUPREME COURT OF THE STATE OF NEW YORK
EIGHTH JUDICIAL DISTRICT
This Document Applies to:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
JOSEPHINE E. McCLURE, ATTORNEY'S
VERIFICATION
Plaintiff,
-against- Index No. 802542/2019
AIR & LIQUID SYSTEMS CORPORATION, et al.,
Defendants.
The undersigned affirms the truth of the following statement to be true under
penalties of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules.
That he is duly admitted to practice law in the State of New York and is a member of
the law firm of Tanenbaum Keale LLP, attorneys for defendant, CBS Corporation, a
Delaware corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a
Pennsylvania corporation, f/k/a Westinghouse Electric Corporation.
That he has read the foregoing document and knows the contents thereof, and that
the same is true to the knowledge of you except as to the matters therein alleged upon
information and belief and that as to those matters he believes them to be true.
That the reason why this affirmation is being made by affirmant and not the
defendant is that the defendant does not maintain an office in the county where affirmant
maintains his offices.
That the source of deponent's information and the grounds of his belief as to allthe
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matters therein alleged upon information and belief are reports from and communications
had with said defendants.
Dated: Newark, New Jersey
April 19, 2019 Dennis E. Vega,
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FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 SUPREME COURT OF THE STATE OF NEW YORK EIGHTH JUDICIAL DISTRICT This Document Applies to: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE JOSEPHINE E. McCLURE, ANSWER OF DEFENDANT TO PLAINTIFF'S VERIFIED COMPLAINT Plaintiff, -against- Index No. 802542/2019 AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants. Defendant CBS Corporation, a Delaware corporation, f/k/a Viacom Inc., successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric Corporation ("Westinghouse"), by counsel, responds to the allegations contained in the ("Plaintiff" Plaintiff's herein referred to singularly or plurally, living or deceased, possessively and/or in any such capacity as may apply) Verified Complaint (hereinafter "Complaint") as follows: 1. Westinghouse denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 1 of the Complaint. RESPONSE TO ARTICLE 16 ALLEGATIONS 2. The allegations contained in paragraph 2 of the Complaint call for a legal conclusion and Westinghouse refers allsuch conclusions to the Court. To the extent that these allegations hold Westinghouse liable of wrongful conduct, Westinghouse denies the same. 1 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 RESPONSE TO DEFENDANT ALLEGATIONS 3. In response to paragraph 3 of the Complaint, Defendant admits that it isa corporation having its principal place of business in New York and as Westinghouse was authorized to conduct business in New York. Westinghouse further admits that at certain times in itspast, it manufactured, sold or distributed some products which contained bound or encapsulated asbestos. Westinghouse denies any allegations beyond the scope of this limited admission. 4-21. The allegations contained in paragraphs 4 through 21 of the Complaint pertain to defendants other than Westinghouse and Westinghouse has no duty to respond. To the extent any such duty exists, the allegations are denied for lack of knowledge or information sufficient to form a belief as to the truth contained therein. RESPONSE TO ALLEGATIONS OF FACT 22. The allegations in paragraph 22 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 23. The allegations in paragraph 23 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 24. The allegations in paragraph 24 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 25. The allegations in paragraph 25 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse -2- 2 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 therefore denies these allegations. 26. The allegations in paragraph 26 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. Westinghouse further denies that it caused or contributed to the Plaintiff's alleged injuries. 27. The allegations in paragraph 27 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. Westinghouse further denies that it caused or contributed to the Plaintiff's alleged injuries. RESPONSE TO FIRST CAUSE OF ACTION FOR NEGLIGENT FAILURE TO WARN AGAINST THE DEFENDANTS NAMED HEREIN 28. Westinghouse repeats and restates each and every response contained in paragraphs 1 through 27 of this answer as if fully set forth herein. 29. Westinghouse denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 29 of the Complaint. 30. The allegations in paragraph 30 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 31. The allegations in paragraph 31 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 32. The allegations in paragraph 32 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. -3- 3 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 33. The allegations in paragraph 33 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 34. The allegations in paragraph 34 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 35. The allegations in paragraph 35 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 36. The allegations in paragraph 36 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 37. The allegations in paragraph 37 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 38. The allegations in paragraph 38 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 39. The allegations in paragraph 39 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore 40. The allegations in paragraph 40 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse -4- 4 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 therefore denies these allegations.. Westinghouse further denies that it caused or contributed to the Plaintiffs alleged disease. 41. Westinghouse denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 41 of the Complaint. 42. The allegations contained in paragraph 42 of the Complaint call for a legal conclusion and Westinghouse refers all legal conclusions to the Court. To the extent any further responses is deemed necessary, Westinghouse denies that it caused or contributed to the Plaintiffs alleged injuries, pain, suffering, expenses, losses and damages. 43. Westinghouse denies the allegations set forth in paragraph 43 of the Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse further denies that it caused or contributed to the Plaintiffs alleged damages. RESPONSE TO SECOND CAUSE OF ACTION FOR STRICT PRODUCTS LIABILITY AGAINST THE DEFENDANTS NAMED HEREIN 44. Westinghouse repeats and restates each and every response contained in paragraphs 1 through 43 of this answer as if fully set forth herein. 45. Westinghouse denies the allegations set forth in paragraph 45 of the Complaint insofar as the allegations relate or pertain to Westinghouse. 46. Westinghouse denies the allegations set forth in paragraph 46 of the Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse further denies that it caused or contributed to the Plaintiffs alleged injuries and damages. 47. The allegations in paragraph 47 of the Complaint are so broad, vague, and ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse therefore denies these allegations. 48. Westinghouse denies the allegations set forth in paragraph 48 of the - 5 - 5 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse further denies that it caused or contributed to the Plaintiffs alleged injuries and damages. 49. Westinghouse denies the allegations set forth in paragraph 49 of the Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse further denies that it isliable to the Plaintiff in any respect and repeats and realleges its "42" "43" responses to paragraphs and of the Complaint. RESPONSE TO THIRD CAUSE OF ACTION FOR NEGLIGENT CONTRACTING ACTIVITIES AGAINST DEFENDANTS FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION AND ASBESTOS INC., INDUSTRIAL INSULATION SALES, INC., AND NIAGARA INSULATIONS, INC., f/k/a NIAGARA ASBESTOS CO., INC. 50. Westinghouse repeats and restates each and every response contained in paragraphs 1 through 49 of this answer as if fully set forth herein. 51-59. The allegations contained in paragraphs 51 through 59 of the Complaint pertain to defendants other than Westinghouse and Westinghouse has no duty to respond. To the extent any such duty exists, the allegations are denied for lack of knowledge or information sufficient to form a belief as to the truth contained therein. RESPONSE TO FOURTH CAUSE OF ACTION AGAINST DEFENDANTS, FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION AND ASBESTOS INC., 60. Westinghouse repeats and restates each and every response contained in paragraphs 1 through 59 of this answer as if fully set forth herein. 61-65. The allegations contained in paragraphs 61 through 65 of the Complaint pertain to defendants other than Westinghouse and Westinghouse has no duty to respond. To the extent any such duty exists, the allegations are denied for lack of knowledge or -6- 6 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 information sufficient to form a belief as to the truth contained therein. 66. Westinghouse denies each and every allegation contained in the Complaint not specifically admitted herein. 67. Westinghouse denies that the Plaintiff is entitled to the relief requested in the addendum clauses contained in the First through Fourth Causes of Action contained in the Complaint, and anywhere else so listed. AFFIRMATIVE DEFENSES 1. In the event Plaintiff recovers a verdict or judgment against Westinghouse, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been or will, with reasonable certainty, replace or indemnify Plaintiff, in whole or in part, for any past or future claims, economic loss, from any collateral source workers' including but not limited to insurance, social security, compensation or employee benefit programs. 2. Plaintiff's claims are barred by the applicable statute of limitations. Westinghouse gave, made or otherwise extended no warranties, whether express or implied, upon which Plaintiff had a right to rely. 3. Westinghouse breached no warranties, whether express or implied. 4. The doctrine of strict liability in tort is inapplicable to this litigation. 5. Plaintiff's claims against Westinghouse are barred by the doctrine of assumption of the risk. 6. Plaintiff fails to state a claim upon which relief may be granted. 7. Plaintiff's delay in commencing suit has resulted in prejudice to Westinghouse and the equitable doctrine of laches bars this suit. -7- 7 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 8. The Plaintiff failed to properly affect personal jurisdiction over Westinghouse. 9. Claims brought under the New York Statute of Limitations enacted July 31, 1986 are time-barred because the statute is unconstitutional. 10. The Complaint must be dismissed by reason of improper venue. 11. This Court lacks jurisdiction over the subject matter of this action. 12. All claims which on New York Section 4 are time- rely Law, L.1986, C.682, barred in their entirety. 13. This Court lacks jurisdiction over Westinghouse based on insufficient and untimely service of process. 14. Westinghouse pleads that it isimmune from civil liability of any form or workers' nature in this matter under New York's compensation law ifPlaintiff was an workers' employee of defendant during the period of alleged exposure. The said compensation law provides Worker's Compensation benefits for the disability of an employee ifsuch resulted from injury or occupational disease incurred or sustained in the course of employment as an exclusive remedy. 15. The action is barred by virtue of the four year Statute of Limitations prescribed by Section 2-725 of the Uniform Commercial Code; by virtue of failure of Plaintiff to give requisite notice to this answering defendant under Article 2 of the Uniform Commercial Code, in so faras a cause of action is alleged for breach of warranty or warranties, express or implied, as well as by virtue of the absence of privity or of any contractual relationship between the Plaintiff and Westinghouse. 16. Plaintiff's claims are time barred in that Section 214-C of the New York CPLR -8- 8 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 is unconstitutional. 17. At all times during the conduct of its operations, allagents, servants and employees of Westinghouse used proper methods of handling the products complained of in conformity with the available knowledge, state of the art, and research of the scientific and industrial communities. 18. To the extent that the Plaintiff was injured as a result of exposure to asbestos and/or asbestos-containing materials at a situs of construction, demolition, renovation or excavation where Westinghouse was a contractor or agent, which is denied, the presence or use of asbestos or asbestos-containing materials was a result of strict conformity with specifications or requirements supplied by such Plaintiff or Plaintiff's employers, the United States Government or other third parties. 19. To the extent that Plaintiff was exposed to any product containing asbestos as a result of conduct by Westinghouse, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiff may have developed, thus requiring dismissal of the Complaint as against Westinghouse. 20. Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the Complaint. 21. Plaintiff does not have standing to maintain the action. 22. IfWestinghouse should be found liable to the Plaintiff, such liability arose out of the negligence of co-defendants entitling Westinghouse to indemnification and/or contribution, in whole or in part, from such parties for the amount of any verdict or an amount of any judgment which may be recovered against Westinghouse. 23. Westinghouse shows that ifPlaintiff has released, settled, entered into an -9 . 9 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 accord and satisfaction, or otherwise compromised Plaintiff s claims herein, then, accordingly, said claims are barred by payment, accord and satisfaction, arbitration and award, release, and res judicata; alternatively, Westinghouse shows that ifPlaintiff has accepted compensation in partial settlement of Plaintiff s claims, then Westinghouse is entitled to a set-off in said amount. 24. Because of the generality of the allegations in the Complaint, Westinghouse reserves the right to amend its answer and affirmative defenses ifinvestigation, discovery and further information should warrant such amendment, and, further, to assert any applicable matters of law during the pendency of this action. 25. Ifit is determined that the plaintiffs were exposed to any Westinghouse product, which product or components of those products were acquired from or sold by or used on behalf of the United States of America or any State or agency thereof, then Westinghouse is entitled to any sovereign or government immunity or defense available to the United States and/or relevant state and/or relevant agency thereof including, but not limited to, the federal government contractor defense. 26. Plaintiff's purported exposure to asbestos occurred on a federal enclave. All claims arising from alleged incidents on a federal enclave must be determined in accordance with federal laws. 27. The design, construction, maintenance, and all safety aspects of the equipment at issue implicates government contracts that give rise to federal laws, including but not limited to the War Powers Acts. 28. Westinghouse acted under the authority of an officer or agency of the United States, within the meaning of 28 U.S.C. § 1442(a)(1). Westinghouse acted under the - 10 - 10 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 direction, control and demand of the U.S. Government, the Secretary of the Navy or his delegee based on extensive and strict government design specifications. 29. The government mandated precise specifications regarding the products it needed, and Westinghouse conformed to those specifications. Westinghouse cannot be liable to a third party in tort ifthe government approved reasonably precise specifications and Westinghouse conformed to those specifications. 30. Pursuant to the Defense Production Act, Westinghouse cannot be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to the Defense Production Act. 31. All defenses that have been or will be asserted by other defendants in this action are adopted and incorporated by reference as iffully set forth herein. In addition, Westinghouse will rely upon any and all other further defenses which become available or appear during discovery in this action and hereby specifically reserves its right to amend its answer for the purpose of asserting any such additional affirmative defenses. 32. The Court lacks personal jurisdiction over the answering defendant. AS AND FOR A CROSS-CLAIM AGAINST OTHER DEFENDANTS NAMED IN THIS CASE, DEFENDANT WESTINGHOUSE STATES: 33. Ifplaintiffs sustained damages in the manner alleged in the complaint, all of which is denied by this answering defendant, such damages were caused by reason of negligence, breach of contract obligation or warranty, nuisance or trespass or are plaintiffs' otherwise the proper responsibility of other defendants named in this case or culpable conduct. 34. By reason of the foregoing, the answering defendant is entitled to indemnification or contribution from, and to have judgment over against, its co-defendants, or - 11- 11 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 some of them, for all or part of any verdict or judgment that plaintiffs may recover against the answering defendant. ANSWER TO ALL CROSS-CLAIMS Westinghouse hereby answers the cross-claims of each of the other defendants and any third-party defendant named in this action, however asserted or alleged, and says: 35. All cross-claims for contribution alleged against Westinghouse by any party defendant or third-party defendant are denied. 36. All cross-claims for indemnification alleged against Westinghouse by any party defendant or third-party defendant are denied. 37. All cross-claims for contractual indemnification alleged against Westinghouse by any party defendant or third-party defendant are denied. WHEREFORE, Defendant Westinghouse requests the following relief: a. Judgment dismissing the Complaint; b. Costs and disbursements; Attorneys' c. fees; d. Indemnification and/or contribution, either in whole, or in part, against co-defendants with judgment over and against such parties for allor part of any verdict a judgment which may be recovered herein by any party to this action against defendant Westinghouse; and e. Any other relief to which it may be justly entitled. -12- 12 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 DEMAND FOR IURY Westinghouse hereby demands a trial by jury in this action. Dated: Newark, New Jersey ___ April 19, 2019 Dennis E. Vega, . Tanenbaum Keale LLP Attorneys for Defendant CBS Corporation, a Delaware corporation, f/k/a Viacom Inc., successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric Corporation Three Gateway Center, Suite 1301 100 Mulberry Street Newark, NJ 07102 (973) 242-0002 TO: LIPSITZ & PONTERIO, LLC Attorneys for Plaintiff 424 Main Street, Suite 1500 Buffalo, New York 14202 (716) 849-0701 - 13- 13 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 SUPREME COURT OF THE STATE OF NEW YORK EIGHTH JUDICIAL DISTRICT This Document Applies to: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE JOSEPHINE E. McCLURE, ATTORNEY'S VERIFICATION Plaintiff, -against- Index No. 802542/2019 AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants. The undersigned affirms the truth of the following statement to be true under penalties of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules. That he is duly admitted to practice law in the State of New York and is a member of the law firm of Tanenbaum Keale LLP, attorneys for defendant, CBS Corporation, a Delaware corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric Corporation. That he has read the foregoing document and knows the contents thereof, and that the same is true to the knowledge of you except as to the matters therein alleged upon information and belief and that as to those matters he believes them to be true. That the reason why this affirmation is being made by affirmant and not the defendant is that the defendant does not maintain an office in the county where affirmant maintains his offices. That the source of deponent's information and the grounds of his belief as to allthe -14- 14 of 15 FILED: ERIE COUNTY CLERK 04/19/2019 07:01 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2019 matters therein alleged upon information and belief are reports from and communications had with said defendants. Dated: Newark, New Jersey April 19, 2019 Dennis E. Vega, -15- 15 of 15