Preview
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PANTELIS KAMMAS and KLEO KAMMAS Index No. 190153/2019
Plaintiffs, VERIFIED ANSWER TO
PLAINTIFF’S VERIFIED
COMPLAINT AND CROSS-
against CLAIMS OF DEFENDANT
LENNOX, INC.
A.O. SMITH WATER PRODUCTS, et al.,
Defendants.
Defendant Lennox Industries, Inc., sued herein as Lennox Industries, Inc., Individually and
as Successor to Lennox Furnace Company and Ducane, (“Lennox”), by its attorneys, Darger
Errante Yavitz & Blau LLP, answers the Verified Complaint (the “Complaint”) of Plaintiffs
Pantelis Kammas and Kleo Kammas (“Plaintiff” or collectively “Plaintiffs”) as follows:
THE PARTIES
1. Lennox denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraphs 1 through 3 of the Complaint.
2. Paragraph 4 of the Complaint contains no allegations to which a response is
required; to the extent a response is required, however, Lennox denies the allegations contained in
the aforesaid paragraph of the Complaint, and denies knowledge or information sufficient to form
a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to
other parties.
3. Lennox denies the allegations contained in paragraph 5 of the Complaint insofar as
such allegations pertain to Lennox, except admits that Lennox does business in this State, and
1
1 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
denies knowledge or information sufficient to form a belief as to the truth of the allegations
contained in the aforesaid paragraph as they pertain to other parties.
4. Lennox denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs 6 through 33 of the Complaint.
5. Lennox denies the allegations contained in paragraph 34 of the Complaint, except
admits that Lennox is a Delaware corporation with its principal place of business in Texas.
6. Lennox denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs 35 through 56 of the Complaint.
7. Lennox denies the allegations contained in paragraphs 57 through 64 of the
Complaint insofar as such allegations pertain to Lennox, except admits that Lennox does business
in this State, and denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in the aforesaid paragraph as they pertain to other parties.
AS TO THE FIRST CAUSE OF ACTION SOUNDING IN NEGLICENCE
8. In response to paragraph 65 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 64 of the
Complaint with the same force and effect as if set forth at length hereinafter.
9. Lennox denies the allegations contained in paragraphs 66 through 73 of the
Complaint, including all sub-parts therein, insofar as such allegations pertain to Lennox, and
denies knowledge or information sufficient to form a belief as to the truth of the allegations
contained in the aforesaid paragraphs as they pertain to other parties.
AS TO THE SECOND CAUSE OF ACTION SOUNDING IN
BREACH OF WARRANTY
10. In response to paragraph 74 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 73 of the
2
2 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
Complaint with the same force and effect as if set forth at length hereinafter.
11. Lennox denies the allegations contained in paragraphs 75 through 78 of the
Complaint insofar as such allegations pertain to Lennox, and denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
they pertain to other parties.
AS TO THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY
12. In response to paragraph 79 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 78 of the
Complaint with the same force and effect as if set forth at length hereinafter.
13. Lennox denies the allegations contained in paragraphs 80 through 88 of the
Complaint insofar as such allegations pertain to Lennox, and denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
they pertain to other parties.
AS TO THE FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS
14. In response to paragraph 89 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 88 of the
Complaint with the same force and effect as if set forth at length hereinafter.
15. Lennox denies the allegations contained in paragraphs 90 through 107 of the
Complaint, including all sub-parts therein, insofar as such allegations pertain to Lennox, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained in
the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court.
AS TO THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT
METROPOLITAN LIFE INSURANCE COMPANY
16. In response to paragraph 108 of the Complaint, Lennox repeats, reiterates, and
3
3 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
realleges each and every response to the allegations contained in paragraphs 1 through 107 of the
Complaint with the same force and effect as if set forth at length hereinafter.
17. Lennox denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraphs 109 through 115 of the Complaint.
AS TO THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
COLLECTIVE LIABILITY / CONCERT OF ACTION
18. In response to paragraph 116 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 115 of the
Complaint with the same force and effect as if set forth at length hereinafter.
19. Lennox denies the allegations contained in paragraphs 117 through 131 of the
Complaint, including all sub-parts therein, insofar as such allegations pertain to Lennox, and
denies knowledge or information sufficient to form a belief as to the truth of the allegations
contained in the aforesaid paragraphs as they pertain to other parties.
AS TO THE SEVENTH CAUSE OF ACTION
AGAINST DEFENDANT CONTRACTORS
20. In response to paragraph 132 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 131 of the
Complaint with the same force and effect as if set forth at length hereinafter.
21. Paragraph 133 of the Complaint contains no allegations to which a response is
required; to the extent a response is required, however, Lennox denies the allegations contained in
the aforesaid paragraph of the Complaint, and denies knowledge or information sufficient to form
a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to
other parties.
22. Lennox denies the allegations contained in paragraphs 134 through 145 of the
Complaint insofar as such allegations pertain to Lennox, denies knowledge or information
4
4 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
they pertain to other parties, and refers all questions of law to the Court.
AS TO THE EIGHTH CAUSE OF ACTION
FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
23. In response to paragraph 146 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 145 of the
Complaint with the same force and effect as if set forth at length hereinafter.
24. Lennox denies the allegations contained in paragraphs 147 through 161 of the
Complaint insofar as such allegations pertain to Lennox, denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
they pertain to other parties, and refers all questions of law to the Court.
AS TO THE NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY
25. In response to paragraph 162 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 161 of the
Complaint with the same force and effect as if set forth at length hereinafter.
26. Lennox denies the allegations contained in paragraphs 163 through 174 of the
Complaint insofar as such allegations pertain to Lennox, denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
they pertain to other parties, and refers all questions of law to the Court.
AS TO THE TENTH CAUSE OF ACTION PUNITIVE DAMAGES
27. In response to paragraph 175 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 174 of the
Complaint with the same force and effect as if set forth at length hereinafter.
28. Lennox denies the allegations contained in paragraph 176 of the Complaint insofar
5
5 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
as such allegations pertain to Lennox, and denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to parties
other than Lennox.
AS TO THE ELEVENTH CAUSE OF ACTION
SPOUSAL LOSS OF CONSORTIUM
29. In response to paragraph 177 of the Complaint, Lennox repeats, reiterates, and
realleges each and every response to the allegations contained in paragraphs 1 through 176 of the
Complaint with the same force and effect as if set forth at length hereinafter.
30. Lennox denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in paragraph 178 of the Complaint.
31. Lennox denies the allegations contained in paragraph 179 of the Complaint insofar
as such allegations pertain to Lennox, and denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to parties
other than Lennox.
FOR A FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state cognizable claims as against Lennox.
FOR A SECOND AFFIRMATIVE DEFENSE
While denying Plaintiff’s allegations with respect to liability, to the extent that negligence
of culpable conduct may be proven, the acts of Lennox are not a proximate cause of any injuries
to Plaintiff.
FOR A THIRD AFFIRMATIVE DEFENSE
The Complaint fails to comply with the most minimal pleading requirements.
6
6 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
FOR A FOURTH AFFIRMATIVE DEFENSE
To the extent that the Complaint and the claims made by Plaintiff were not commenced
within the time limited by law, the Complaint is barred by the applicable statute of limitations
and/or laches.
FOR A FIFTH AFFIRMATIVE DEFENSE
In the event that Plaintiff used any asbestos-containing product(s), said product(s) was
misused, or improperly used, which misuse or improper use proximately caused and contributed,
in whole or in part, to the claims alleged by Plaintiff in the Complaint.
FOR A SIXTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff failed and neglected to maintain this action in a swift, diligent,
and timely fashion, the Complaint is barred by waiver and laches.
FOR A SEVENTH AFFIRMATIVE DEFENSE
Relief is barred by virtue of the doctrines of estoppel and waiver.
FOR AN EIGHTH AFFIRMATIVE DEFENSE
Some or all of the causes of action may not be maintained because of res judicata.
FOR A NINTH AFFIRMATIVE DEFENSE
The injuries and/or illnesses to Plaintiff, if any, are unrelated to any act or omission of
Lennox or any individual acting under its direction or control.
FOR A TENTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce
the injuries and disabilities alleged in the Complaint.
7
7 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
FOR AN ELEVENTH AFFIRMATIVE DEFENSE
If Plaintiff sustained the injuries and damages as alleged, the same were caused, in whole
or in part, by the conduct of one or more persons or entities over whom Lennox exercised no
control and with whom Lennox had no legal relationship.
FOR A TWELFTH AFFIRMATIVE DEFENSE
To the extent that Lennox conformed to the scientific knowledge and research data
available to industry and the scientific community, Lennox has fulfilled its obligations, if any,
herein, and the Complaint is barred, in whole or in part.
FOR A THIRTEENTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff allege rights assertedly derived from oral warranties, statements,
or undertakings on the part of Lennox, the Complaint is barred by the applicable statute of frauds.
FOR A FOURTEENTH AFFIRMATIVE DEFENSE
To the extent that the claims pleaded by Plaintiff fail to accord with the Uniform
Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint is barred.
FOR A FIFTEENTH AFFIRMATIVE DEFENSE
To the extent that any of the products for which liability is charged to Lennox, which
liability is denied, were modified, altered, qualified, assembled, or in any other way materially
varied, which same may be causally related to the claims of Plaintiffs, the Complaint is barred.
FOR A SIXTEENTH AFFIRMATIVE DEFENSE
The causes of action pleaded in the Complaint insofar as they assert an alleged cause of
action for express and/or implied warranties and the alleged breaches thereof as against Lennox,
are legally insufficient by reason of the failure to allege privity of contract and/or privity of
warranties between Plaintiff and Lennox.
8
8 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, insofar as Plaintiff rely upon allegations of negligence,
breaches of warranties, fraudulent representations and violations of obligations of strict products
liability as against Lennox, said causes of action fail to state facts sufficient to constitute causes of
action as against Lennox by reason of the failure to allege the freedom of Plaintiff from
contributory negligence or fault, and if Plaintiff sustained the injuries, losses and other damages
complained of in the Complaint, such injuries, losses, and damages were caused and brought about,
in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or culpable conduct
of Plaintiff.
FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
The injuries and/or illnesses to 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, whether related to
asbestos or not, were open, obvious, and well known to Plaintiff, and the Complaint is barred by
virtue of Plaintiff’s assumption of the risks thereof.
FOR A NINETEENTH AFFIRMATIVE DEFENSE
Upon information and belief, Lennox complied with all safety rules and regulations in
effect at the relevant times and acted reasonably in all of its activities.
FOR A TWENTIETH AFFIRMATIVE DEFENSE
To the extent that the use, application, employment, surrounding conditions, safety
precautions, and other circumstances attendant upon the material allegedly used by Plaintiff were
determined, controlled, selected, or limited by Plaintiff and/or by others for whose acts, omissions,
or breach Lennox is not liable, the Complaint is barred, in whole or in part.
FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workers’
9
9 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
Compensation statutes and shall have constituted an industrial disability and the exclusive remedy,
if any, shall lie within the terms and ambit of said statutes.
FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages
complained of in the Complaint, such injuries, losses, and damages were caused or brought about,
in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable
conduct of parties or third parties to this action, other than Lennox, and over whom Lennox had
neither control nor right of control.
FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages
complained of in the Complaint, such injuries, losses, and damages were caused or brought about,
in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable
conduct of Plaintiff.
FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
Upon information and belief, recovery in this action by Plaintiff, if any, must be diminished
and reduced in the proportion which said culpable conduct of Plaintiff bears to the alleged culpable
conduct of Lennox, if any, which allegedly caused said injuries, losses, and damages.
FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
At all times during the conduct of its corporate operations, Lennox and the agents, servants,
and/or employees of Lennox complied with all applicable law, regulations, standards, and the
available knowledge, and technology of the medical, scientific, and industrial communities.
FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
At all times material hereto, the state of the medical, industrial and scientific arts,
knowledge, and technology was that there was no generally accepted or recognized nature of
10
10 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
asbestos-containing products when used in the manner and for the purposes intended, so that there
was no duty by Lennox to know of such character or nature or to warn Plaintiff, or others similarly
situated, and to the extent such duty arose, adequate warnings either were given or were not
necessary under all circumstances.
FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
The parties, other than Lennox, who were responsible for the conditions of Plaintiff’s work
environment were sophisticated purchasers upon whom devolved all responsibility for the use of
the products referred to in the Complaint.
FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Lennox had no knowledge or reason to know of any alleged risks associated with asbestos
and/or asbestos-containing products at any time during the periods complained of.
FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
In the event it should be proven at the time of trial that all the defendants are subject to
liability, then, Lennox’s share of such liability would be of such a de minimis amount as to make
its contribution for damages negligible, and Lennox would be entitled to contribution, either in
whole or in part, from the co-defendants not represented by this Verified Answer and Cross-
Claims.
FOR A THIRTIETH AFFIRMATIVE DEFENSE
To the extent that Plaintiff was exposed to any product containing asbestos as a result of
conduct by Lennox, which is denied, said exposure was de minimis and not a substantial
contributing factor to any asbestos-related disease which Plaintiff may have developed, and not
actionable at law or equity.
FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
None of the alleged injuries or damages were foreseeable at the time of the Complaint or
11
11 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
at the time of the alleged acts or omissions in Plaintiff’s Complaint.
FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
The action cannot proceed in the absence of all parties who should be named in accordance
with Rule 19 of the Federal Rules of Civil Procedure.
FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
Proceeding in this action without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight
Insulation, Owens-Corning and/or Standard Insulations, W.R. Grace, and all other entities in
Bankruptcy relating thereto, would be in violation of Lennox’s constitutional rights.
FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff relies on the New York Law, L. 1986. c. 682, Section 4 as
grounds for reviving or maintaining the action, said statute(s) is unconstitutional and deprives
Lennox of its constitutional rights and is wholly void and unenforceable.
FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and
prompt notice of any such breach of warranty to Lennox.
FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
Any recovery by Plaintiff in this action must be reduced by collateral source payments
pursuant to CPLR Section 4545.
FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff contributed to his injuries by the use or misuse, either in whole
or in part, of other substances, products, medications, and drugs, including, but not limited to any
tobacco products, any liability should be reduced by the extent of any use and/or injuries related
thereto or caused thereby pursuant to the Restatement of Torts (Second) §433A.
12
12 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
If Plaintiff was caused to sustain personal injuries at the time and place set forth in the
Complaint and in the manner alleged therein through any carelessness, recklessness, acts,
omissions, negligence, and/or breaches of duty and/or warranty and/or contract, other than that of
Plaintiff, then the said damages arose out of the carelessness, recklessness, acts, omissions,
negligence, and breaches of duty and/or warranty and/or contract in fact or implied-in-law, upon
the part of the co-defendants and third-party defendants now or hereafter named, with
indemnification and/or contribution due to Lennox as implied-in-fact or implied-in-law, and if
Lennox is found liable as to Plaintiff and/or any third-party Plaintiffs for the injuries and damages
set forth in the Complaint and/or the third-party complaints, then the said co-defendants and third-
party defendants now or hereafter named will be liable jointly and severally to Lennox and will be
bound to fully indemnify and hold Lennox harmless for the full amount of any verdict or judgment,
and/or Lennox is entitled to contribution, in whole or in part, from each of the co-defendants and
third-party defendants now or hereafter named, together with the costs and disbursements incurred
in the defense of this action.
FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff was exposed to toxic substances, any liability should be reduced
to the extent any injuries are related to thereto or caused thereby.
FOR A FORTIETH AFFIRMATIVE DEFENSE
To the extent that Plaintiff seeks punitive damages against Lennox and relies on Section 4
of the New York Laws 1986, c. 682 as grounds for reviving or maintaining the action, such
damages are improper and are not authorized by law since this statute does not revive any claims
for punitive damages, leaving each of such claims time barred in its entirety.
13
13 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
To the extent that Plaintiff seeks punitive damages against Lennox, these damages are
improper and unwarranted, not authorized by law, and are unconstitutional. Subjecting Lennox to
multiple trials and the multiple impositions of punitive damages for a single course of conduct is
a violation of both substantive and procedural due process under the Fourteenth Amendment to
the United States Constitution and the Constitution of the State of New York. Furthermore, the
standard governing the award of punitive damages is constitutionally void for vagueness.
FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
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 on the part of others for whose acts
or omissions or breach of legal duty Lennox is not liable.
FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
Plaintiff’s claims for punitive damages cannot be sustained because an award of punitive
damages under New York state law by a jury would violate Lennox’s privileges and immunities,
due process and equal protection rights guaranteed under the Fourteenth Amendment to the United
States Constitution, and the Commerce Clause under Article I to the United States Constitution,
as well as the New York Constitution, and would be improper under the common law and public
policies of New York.
FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
Lennox pleads comment k to the Restatement (Second) of Torts, Section 402A.
FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
Each of Plaintiff’s claims is barred by prior accord and satisfaction.
FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
To the extent that the physically injured Plaintiff’s alleged asbestos exposure occurred prior
14
14 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
to the date of his/her marriage, no loss of consortium claim may be asserted.
FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims for exemplary or punitive damages are barred because such damages are
not recoverable or warranted in this action.
FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
Article 16 of the Civil Practice Law and Rules applies to this action and pursuant to the
law of New York, the liability, if any, of Lennox for non-economic loss is not joint and several but
shall be limited to the proportionate share, if any, attributed to Lennox.
FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
Lennox’s activities and undertakings were conducted in a reasonable fashion, without
recklessness, malice, or wantonness, and Plaintiff may not recover in this action any compensatory,
exemplary, or punitive damages against Lennox.
FOR A FIFTIETH AFFIRMATIVE DEFENSE
Lennox asserts that this Court lacks personal jurisdiction over it in this action.
FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
Lennox asserts that this Court lacks subject matter jurisdiction over this action.
FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
Lennox gave, made, or otherwise extended no warranties, whether express or implied, upon
which Plaintiff has a right to rely.
FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
Lennox denies specifically that, during the periods of exposure alleged in the Complaint,
it processed, manufactured, designed, supplied, developed, tested, fashioned, packaged,
distributed, delivered, sold, and/or otherwise placed in the stream of commerce a substantial and/or
any percentage of the asbestos-containing products to which the physically-injured Plaintiff was
15
15 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
caused to come into contact and which Plaintiff was caused to breathe, inhale, and/or digest, which
thereby caused Plaintiffs’ alleged injuries and resulting damages alleged in the Complaint.
FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiff’s claims should be dismissed on the grounds of improper venue and/or forum non
conveniens.
FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are
the result of an idiosyncratic reaction, rather than the result of any negligence or breach of duty
attributable in any manner to Lennox.
FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
The physically-injured Plaintiff may have significant pre-existing medical histories that
were the causative factor of the alleged injuries.
FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
Lennox asserts that, in all respects, it conducted its operations in a reasonable manner.
FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are
the result of an operation of nature, rather than the result of want of care or breach of duty by
Lennox.
FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
Any verdict or judgment against any defendant, including Lennox, is entitled to reduction
pursuant to General Obligations Law § 15-108, on the basis of prior settlements and/or
compromises.
FOR A SIXTIETH AFFIRMATIVE DEFENSE
All defenses that have been or will be asserted by other defendants in this action are adopted
16
16 of 19
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019
and incorporated by reference as if fully set forth at length herein as defenses to the Complaint.
FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
Lennox reserves the right to amend this Verified Answer and Cross-Claims to assert
additional defenses upon discovery of the specific facts upon which Plaintiffs base their claims for
relief, and upon completion of further discovery.
ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS
Lennox denies any and all cross-claims for contribution and/or indemnification that have
been asserted or may be asserted at any time by co-defendants in this action.
CROSS-CLAIMS AGAINST CO-DEFENDANTS AND THIRD-PARTY DEFENDANTS
If Plaintiff was caused to sustain personal injuries at the time and place set forth in the
Complaint and alleged therein through any carelessness, recklessness, acts, omissions, negligence,
and/or breaches of duty and/or warranty and/or contract, other than that of Plaintiff, then the such
injuries arose out of the carelessness, recklessness, acts, omissions, negligence, and breaches of
duty and/or warranty and/or contract in-fact or implied-in-law, upon the part of the co-defendants
and third-party defendants now or hereafter named herein with indemnification and/or contribution
to Lennox as implied-in-fact or implied-in-law, and if Lennox is found liable as to Plaintiff and/or
third-party Plaintiff(s) for the injuries and damages set forth in the Complaint and/or in any third-
party complaint(s), then the said co-defendants and third-party defendants will be liable jointly
and severally to Lennox and should indemnify and hold Lennox harmless for the full amount of
any verdict or judgment, or in the alternative, Lennox is entitled to contribution, in whole or in
part, from each of the co-defendants and third-party defendants now or hereafter named herein,
together with the costs and disbursements incurred in the defense of this action.
WHEREFORE, Lennox demands judgment dismissing the Complaint, or in the
alternative, demands judgment over and against the co-defendants and third-party defendants now
17
17 of
Preview
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PANTELIS KAMMAS and KLEO KAMMAS Index No. 190153/2019 Plaintiffs, VERIFIED ANSWER TO PLAINTIFF’S VERIFIED COMPLAINT AND CROSS- against CLAIMS OF DEFENDANT LENNOX, INC. A.O. SMITH WATER PRODUCTS, et al., Defendants. Defendant Lennox Industries, Inc., sued herein as Lennox Industries, Inc., Individually and as Successor to Lennox Furnace Company and Ducane, (“Lennox”), by its attorneys, Darger Errante Yavitz & Blau LLP, answers the Verified Complaint (the “Complaint”) of Plaintiffs Pantelis Kammas and Kleo Kammas (“Plaintiff” or collectively “Plaintiffs”) as follows: THE PARTIES 1. Lennox denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1 through 3 of the Complaint. 2. Paragraph 4 of the Complaint contains no allegations to which a response is required; to the extent a response is required, however, Lennox denies the allegations contained in the aforesaid paragraph of the Complaint, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 3. Lennox denies the allegations contained in paragraph 5 of the Complaint insofar as such allegations pertain to Lennox, except admits that Lennox does business in this State, and 1 1 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 4. Lennox denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6 through 33 of the Complaint. 5. Lennox denies the allegations contained in paragraph 34 of the Complaint, except admits that Lennox is a Delaware corporation with its principal place of business in Texas. 6. Lennox denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 35 through 56 of the Complaint. 7. Lennox denies the allegations contained in paragraphs 57 through 64 of the Complaint insofar as such allegations pertain to Lennox, except admits that Lennox does business in this State, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. AS TO THE FIRST CAUSE OF ACTION SOUNDING IN NEGLICENCE 8. In response to paragraph 65 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 64 of the Complaint with the same force and effect as if set forth at length hereinafter. 9. Lennox denies the allegations contained in paragraphs 66 through 73 of the Complaint, including all sub-parts therein, insofar as such allegations pertain to Lennox, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY 10. In response to paragraph 74 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 73 of the 2 2 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 Complaint with the same force and effect as if set forth at length hereinafter. 11. Lennox denies the allegations contained in paragraphs 75 through 78 of the Complaint insofar as such allegations pertain to Lennox, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 12. In response to paragraph 79 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 78 of the Complaint with the same force and effect as if set forth at length hereinafter. 13. Lennox denies the allegations contained in paragraphs 80 through 88 of the Complaint insofar as such allegations pertain to Lennox, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS 14. In response to paragraph 89 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 88 of the Complaint with the same force and effect as if set forth at length hereinafter. 15. Lennox denies the allegations contained in paragraphs 90 through 107 of the Complaint, including all sub-parts therein, insofar as such allegations pertain to Lennox, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court. AS TO THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY 16. In response to paragraph 108 of the Complaint, Lennox repeats, reiterates, and 3 3 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 realleges each and every response to the allegations contained in paragraphs 1 through 107 of the Complaint with the same force and effect as if set forth at length hereinafter. 17. Lennox denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 109 through 115 of the Complaint. AS TO THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY / CONCERT OF ACTION 18. In response to paragraph 116 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 115 of the Complaint with the same force and effect as if set forth at length hereinafter. 19. Lennox denies the allegations contained in paragraphs 117 through 131 of the Complaint, including all sub-parts therein, insofar as such allegations pertain to Lennox, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties. AS TO THE SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS 20. In response to paragraph 132 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 131 of the Complaint with the same force and effect as if set forth at length hereinafter. 21. Paragraph 133 of the Complaint contains no allegations to which a response is required; to the extent a response is required, however, Lennox denies the allegations contained in the aforesaid paragraph of the Complaint, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to other parties. 22. Lennox denies the allegations contained in paragraphs 134 through 145 of the Complaint insofar as such allegations pertain to Lennox, denies knowledge or information 4 4 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court. AS TO THE EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS 23. In response to paragraph 146 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 145 of the Complaint with the same force and effect as if set forth at length hereinafter. 24. Lennox denies the allegations contained in paragraphs 147 through 161 of the Complaint insofar as such allegations pertain to Lennox, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court. AS TO THE NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY 25. In response to paragraph 162 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 161 of the Complaint with the same force and effect as if set forth at length hereinafter. 26. Lennox denies the allegations contained in paragraphs 163 through 174 of the Complaint insofar as such allegations pertain to Lennox, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they pertain to other parties, and refers all questions of law to the Court. AS TO THE TENTH CAUSE OF ACTION PUNITIVE DAMAGES 27. In response to paragraph 175 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 174 of the Complaint with the same force and effect as if set forth at length hereinafter. 28. Lennox denies the allegations contained in paragraph 176 of the Complaint insofar 5 5 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 as such allegations pertain to Lennox, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to parties other than Lennox. AS TO THE ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF CONSORTIUM 29. In response to paragraph 177 of the Complaint, Lennox repeats, reiterates, and realleges each and every response to the allegations contained in paragraphs 1 through 176 of the Complaint with the same force and effect as if set forth at length hereinafter. 30. Lennox denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 178 of the Complaint. 31. Lennox denies the allegations contained in paragraph 179 of the Complaint insofar as such allegations pertain to Lennox, and denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to parties other than Lennox. FOR A FIRST AFFIRMATIVE DEFENSE The Complaint fails to state cognizable claims as against Lennox. FOR A SECOND AFFIRMATIVE DEFENSE While denying Plaintiff’s allegations with respect to liability, to the extent that negligence of culpable conduct may be proven, the acts of Lennox are not a proximate cause of any injuries to Plaintiff. FOR A THIRD AFFIRMATIVE DEFENSE The Complaint fails to comply with the most minimal pleading requirements. 6 6 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 FOR A FOURTH AFFIRMATIVE DEFENSE To the extent that the Complaint and the claims made by Plaintiff were not commenced within the time limited by law, the Complaint is barred by the applicable statute of limitations and/or laches. FOR A FIFTH AFFIRMATIVE DEFENSE In the event that Plaintiff used any asbestos-containing product(s), said product(s) was misused, or improperly used, which misuse or improper use proximately caused and contributed, in whole or in part, to the claims alleged by Plaintiff in the Complaint. FOR A SIXTH AFFIRMATIVE DEFENSE To the extent that Plaintiff failed and neglected to maintain this action in a swift, diligent, and timely fashion, the Complaint is barred by waiver and laches. FOR A SEVENTH AFFIRMATIVE DEFENSE Relief is barred by virtue of the doctrines of estoppel and waiver. FOR AN EIGHTH AFFIRMATIVE DEFENSE Some or all of the causes of action may not be maintained because of res judicata. FOR A NINTH AFFIRMATIVE DEFENSE The injuries and/or illnesses to Plaintiff, if any, are unrelated to any act or omission of Lennox or any individual acting under its direction or control. FOR A TENTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the Complaint. 7 7 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 FOR AN ELEVENTH AFFIRMATIVE DEFENSE If Plaintiff sustained the injuries and damages as alleged, the same were caused, in whole or in part, by the conduct of one or more persons or entities over whom Lennox exercised no control and with whom Lennox had no legal relationship. FOR A TWELFTH AFFIRMATIVE DEFENSE To the extent that Lennox conformed to the scientific knowledge and research data available to industry and the scientific community, Lennox has fulfilled its obligations, if any, herein, and the Complaint is barred, in whole or in part. FOR A THIRTEENTH AFFIRMATIVE DEFENSE To the extent that Plaintiff allege rights assertedly derived from oral warranties, statements, or undertakings on the part of Lennox, the Complaint is barred by the applicable statute of frauds. FOR A FOURTEENTH AFFIRMATIVE DEFENSE To the extent that the claims pleaded by Plaintiff fail to accord with the Uniform Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint is barred. FOR A FIFTEENTH AFFIRMATIVE DEFENSE To the extent that any of the products for which liability is charged to Lennox, which liability is denied, were modified, altered, qualified, assembled, or in any other way materially varied, which same may be causally related to the claims of Plaintiffs, the Complaint is barred. FOR A SIXTEENTH AFFIRMATIVE DEFENSE The causes of action pleaded in the Complaint insofar as they assert an alleged cause of action for express and/or implied warranties and the alleged breaches thereof as against Lennox, are legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between Plaintiff and Lennox. 8 8 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Upon information and belief, insofar as Plaintiff rely upon allegations of negligence, breaches of warranties, fraudulent representations and violations of obligations of strict products liability as against Lennox, said causes of action fail to state facts sufficient to constitute causes of action as against Lennox by reason of the failure to allege the freedom of Plaintiff from contributory negligence or fault, and if Plaintiff sustained the injuries, losses and other damages complained of in the Complaint, such injuries, losses, and damages were caused and brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or culpable conduct of Plaintiff. FOR A EIGHTEENTH AFFIRMATIVE DEFENSE The injuries and/or illnesses to 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, whether related to asbestos or not, were open, obvious, and well known to Plaintiff, and the Complaint is barred by virtue of Plaintiff’s assumption of the risks thereof. FOR A NINETEENTH AFFIRMATIVE DEFENSE Upon information and belief, Lennox complied with all safety rules and regulations in effect at the relevant times and acted reasonably in all of its activities. FOR A TWENTIETH AFFIRMATIVE DEFENSE To the extent that the use, application, employment, surrounding conditions, safety precautions, and other circumstances attendant upon the material allegedly used by Plaintiff were determined, controlled, selected, or limited by Plaintiff and/or by others for whose acts, omissions, or breach Lennox is not liable, the Complaint is barred, in whole or in part. FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workers’ 9 9 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 Compensation statutes and shall have constituted an industrial disability and the exclusive remedy, if any, shall lie within the terms and ambit of said statutes. FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages complained of in the Complaint, such injuries, losses, and damages were caused or brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable conduct of parties or third parties to this action, other than Lennox, and over whom Lennox had neither control nor right of control. FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages complained of in the Complaint, such injuries, losses, and damages were caused or brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable conduct of Plaintiff. FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE Upon information and belief, recovery in this action by Plaintiff, if any, must be diminished and reduced in the proportion which said culpable conduct of Plaintiff bears to the alleged culpable conduct of Lennox, if any, which allegedly caused said injuries, losses, and damages. FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE At all times during the conduct of its corporate operations, Lennox and the agents, servants, and/or employees of Lennox complied with all applicable law, regulations, standards, and the available knowledge, and technology of the medical, scientific, and industrial communities. FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE At all times material hereto, the state of the medical, industrial and scientific arts, knowledge, and technology was that there was no generally accepted or recognized nature of 10 10 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 asbestos-containing products when used in the manner and for the purposes intended, so that there was no duty by Lennox to know of such character or nature or to warn Plaintiff, or others similarly situated, and to the extent such duty arose, adequate warnings either were given or were not necessary under all circumstances. FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE The parties, other than Lennox, who were responsible for the conditions of Plaintiff’s work environment were sophisticated purchasers upon whom devolved all responsibility for the use of the products referred to in the Complaint. FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE Lennox had no knowledge or reason to know of any alleged risks associated with asbestos and/or asbestos-containing products at any time during the periods complained of. FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE In the event it should be proven at the time of trial that all the defendants are subject to liability, then, Lennox’s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and Lennox would be entitled to contribution, either in whole or in part, from the co-defendants not represented by this Verified Answer and Cross- Claims. FOR A THIRTIETH AFFIRMATIVE DEFENSE To the extent that Plaintiff was exposed to any product containing asbestos as a result of conduct by Lennox, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiff may have developed, and not actionable at law or equity. FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE None of the alleged injuries or damages were foreseeable at the time of the Complaint or 11 11 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 at the time of the alleged acts or omissions in Plaintiff’s Complaint. FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE The action cannot proceed in the absence of all parties who should be named in accordance with Rule 19 of the Federal Rules of Civil Procedure. FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE Proceeding in this action without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight Insulation, Owens-Corning and/or Standard Insulations, W.R. Grace, and all other entities in Bankruptcy relating thereto, would be in violation of Lennox’s constitutional rights. FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE To the extent that Plaintiff relies on the New York Law, L. 1986. c. 682, Section 4 as grounds for reviving or maintaining the action, said statute(s) is unconstitutional and deprives Lennox of its constitutional rights and is wholly void and unenforceable. FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and prompt notice of any such breach of warranty to Lennox. FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE Any recovery by Plaintiff in this action must be reduced by collateral source payments pursuant to CPLR Section 4545. FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE To the extent that Plaintiff contributed to his injuries by the use or misuse, either in whole or in part, of other substances, products, medications, and drugs, including, but not limited to any tobacco products, any liability should be reduced by the extent of any use and/or injuries related thereto or caused thereby pursuant to the Restatement of Torts (Second) §433A. 12 12 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE If Plaintiff was caused to sustain personal injuries at the time and place set forth in the Complaint and in the manner alleged therein through any carelessness, recklessness, acts, omissions, negligence, and/or breaches of duty and/or warranty and/or contract, other than that of Plaintiff, then the said damages arose out of the carelessness, recklessness, acts, omissions, negligence, and breaches of duty and/or warranty and/or contract in fact or implied-in-law, upon the part of the co-defendants and third-party defendants now or hereafter named, with indemnification and/or contribution due to Lennox as implied-in-fact or implied-in-law, and if Lennox is found liable as to Plaintiff and/or any third-party Plaintiffs for the injuries and damages set forth in the Complaint and/or the third-party complaints, then the said co-defendants and third- party defendants now or hereafter named will be liable jointly and severally to Lennox and will be bound to fully indemnify and hold Lennox harmless for the full amount of any verdict or judgment, and/or Lennox is entitled to contribution, in whole or in part, from each of the co-defendants and third-party defendants now or hereafter named, together with the costs and disbursements incurred in the defense of this action. FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE To the extent that Plaintiff was exposed to toxic substances, any liability should be reduced to the extent any injuries are related to thereto or caused thereby. FOR A FORTIETH AFFIRMATIVE DEFENSE To the extent that Plaintiff seeks punitive damages against Lennox and relies on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving or maintaining the action, such damages are improper and are not authorized by law since this statute does not revive any claims for punitive damages, leaving each of such claims time barred in its entirety. 13 13 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 FOR A FORTY-FIRST AFFIRMATIVE DEFENSE To the extent that Plaintiff seeks punitive damages against Lennox, these damages are improper and unwarranted, not authorized by law, and are unconstitutional. Subjecting Lennox to multiple trials and the multiple impositions of punitive damages for a single course of conduct is a violation of both substantive and procedural due process under the Fourteenth Amendment to the United States Constitution and the Constitution of the State of New York. Furthermore, the standard governing the award of punitive damages is constitutionally void for vagueness. FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 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 on the part of others for whose acts or omissions or breach of legal duty Lennox is not liable. FOR A FORTY-THIRD AFFIRMATIVE DEFENSE Plaintiff’s claims for punitive damages cannot be sustained because an award of punitive damages under New York state law by a jury would violate Lennox’s privileges and immunities, due process and equal protection rights guaranteed under the Fourteenth Amendment to the United States Constitution, and the Commerce Clause under Article I to the United States Constitution, as well as the New York Constitution, and would be improper under the common law and public policies of New York. FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE Lennox pleads comment k to the Restatement (Second) of Torts, Section 402A. FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE Each of Plaintiff’s claims is barred by prior accord and satisfaction. FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE To the extent that the physically injured Plaintiff’s alleged asbestos exposure occurred prior 14 14 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 to the date of his/her marriage, no loss of consortium claim may be asserted. FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiff’s claims for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE Article 16 of the Civil Practice Law and Rules applies to this action and pursuant to the law of New York, the liability, if any, of Lennox for non-economic loss is not joint and several but shall be limited to the proportionate share, if any, attributed to Lennox. FOR A FORTY-NINTH AFFIRMATIVE DEFENSE Lennox’s activities and undertakings were conducted in a reasonable fashion, without recklessness, malice, or wantonness, and Plaintiff may not recover in this action any compensatory, exemplary, or punitive damages against Lennox. FOR A FIFTIETH AFFIRMATIVE DEFENSE Lennox asserts that this Court lacks personal jurisdiction over it in this action. FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE Lennox asserts that this Court lacks subject matter jurisdiction over this action. FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE Lennox gave, made, or otherwise extended no warranties, whether express or implied, upon which Plaintiff has a right to rely. FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE Lennox denies specifically that, during the periods of exposure alleged in the Complaint, it processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos-containing products to which the physically-injured Plaintiff was 15 15 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 caused to come into contact and which Plaintiff was caused to breathe, inhale, and/or digest, which thereby caused Plaintiffs’ alleged injuries and resulting damages alleged in the Complaint. FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE Plaintiff’s claims should be dismissed on the grounds of improper venue and/or forum non conveniens. FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are the result of an idiosyncratic reaction, rather than the result of any negligence or breach of duty attributable in any manner to Lennox. FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE The physically-injured Plaintiff may have significant pre-existing medical histories that were the causative factor of the alleged injuries. FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE Lennox asserts that, in all respects, it conducted its operations in a reasonable manner. FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are the result of an operation of nature, rather than the result of want of care or breach of duty by Lennox. FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE Any verdict or judgment against any defendant, including Lennox, is entitled to reduction pursuant to General Obligations Law § 15-108, on the basis of prior settlements and/or compromises. FOR A SIXTIETH AFFIRMATIVE DEFENSE All defenses that have been or will be asserted by other defendants in this action are adopted 16 16 of 19 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:45 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 07/25/2019 and incorporated by reference as if fully set forth at length herein as defenses to the Complaint. FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE Lennox reserves the right to amend this Verified Answer and Cross-Claims to assert additional defenses upon discovery of the specific facts upon which Plaintiffs base their claims for relief, and upon completion of further discovery. ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS Lennox denies any and all cross-claims for contribution and/or indemnification that have been asserted or may be asserted at any time by co-defendants in this action. CROSS-CLAIMS AGAINST CO-DEFENDANTS AND THIRD-PARTY DEFENDANTS If Plaintiff was caused to sustain personal injuries at the time and place set forth in the Complaint and alleged therein through any carelessness, recklessness, acts, omissions, negligence, and/or breaches of duty and/or warranty and/or contract, other than that of Plaintiff, then the such injuries arose out of the carelessness, recklessness, acts, omissions, negligence, and breaches of duty and/or warranty and/or contract in-fact or implied-in-law, upon the part of the co-defendants and third-party defendants now or hereafter named herein with indemnification and/or contribution to Lennox as implied-in-fact or implied-in-law, and if Lennox is found liable as to Plaintiff and/or third-party Plaintiff(s) for the injuries and damages set forth in the Complaint and/or in any third- party complaint(s), then the said co-defendants and third-party defendants will be liable jointly and severally to Lennox and should indemnify and hold Lennox harmless for the full amount of any verdict or judgment, or in the alternative, Lennox is entitled to contribution, in whole or in part, from each of the co-defendants and third-party defendants now or hereafter named herein, together with the costs and disbursements incurred in the defense of this action. WHEREFORE, Lennox demands judgment dismissing the Complaint, or in the alternative, demands judgment over and against the co-defendants and third-party defendants now 17 17 of