Preview
FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- --------------------------------------------------------------------X
:
PANTELIS KAMMAS and KLEO KAMMAS, : Index No.: 190153-2019
:
Plaintiff, : ECR INTERNATIONAL INC.’S
: VERIFIED ANSWER INCLUDING
- against - : AFFIRMATIVE DEFENSES AND
: CROSS CLAIMS
A.O. SMITH WATER PRODUCTS, et al. :
:
:
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Defendant ECR INTERNATIONAL, INC., formerly known as Dunkirk Radiator
Corporation and as successor by merger to The Utica Companies, Inc., incorrectly sued herein as
ECR INTERNATIONAL, INC., Individually and as Successor to Dunkirk, Dunkirk Boilers,
Utica Boilers and Pennco, Inc., (hereinafter “ECR International”), by its attorneys, Manning,
Gross & Massenburg, LLP by way of a Verified Answer to Plaintiff’s Verified Complaint states
as follows:
VERIFIED COMPLAINT
1. ECR International denies any knowledge or information to form a belief as to the
allegations contained in paragraphs of the Verified Complaint numbered “1”, “2” and “3” and begs
leave to refer all questions of law to this honorable Court.
2. As “Defendants” refers to parties other than ECR International, ECR International
denies any knowledge or information sufficient to form a belief as to the allegations contained in
paragraphs “4” and “5” of the Verified Complaint.
3. As “Defendants” refers to ECR International, ECR International denies the
allegations contained in paragraph “4” and “5” of the Verified Complaint, except as to admit that
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ECR International has “conducted or transacted business in” the State of New York, and begs leave
to refer all questions of law to this honorable Court.
4. ECR International denies any knowledge or information sufficient to form a belief
as to the allegations contained in paragraphs of the Verified Complaint numbered “6”, “7”, “8”,
“9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “22”, “23”, “24”, “25”,
“26”, “27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”,
“42”, “43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “53”, “54”, “55” and “56.”
5. ECR International denies the allegations contained in paragraph “21” of the
Verified Complaint, except to admit that ECR International is a duly organized domestic
corporation that has “done business” and or “transacted business” in the State of New York, and
begs leave to refer all questions of law to this honorable court.
6. As “Defendants” refers to parties other than ECR International, ECR International
denies any knowledge or information sufficient to form a belief as to the allegations contained in
paragraphs of the Verified Complaint numbered “57”, “58”, “59”, “60”, “61”, “62”, “63” and “64.”
7. As “Defendants” refers to ECR International, ECR International denies the
allegations contained in paragraph of the Verified Complaint numbered “57” except to admit that
ECR International has “done business in” and “conducted or transacted business in” the State of
New York, and begs leave to refer all questions of law to this honorable Court.
8. As “Defendants” refers to ECR International, ECR International denies the
allegations contained in paragraphs of the Verified Complaint numbered “58”, “59”, “60”, “61”,
“62”, “63” and “64”and begs leave to refer all questions of law to this honorable Court.
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AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE, ECR
INTERNATIONAL ANSWERS AS FOLLOWS:
9. Repeats and reiterates each and every response hereinbefore made with the same
force and effect as though the same were set forth at length herein in response to paragraph “65”
of the Verified Complaint.
10. ECR International denies each and every allegation contained in paragraphs “66”
through “73” of the Verified Complaint to the extent that such allegations are directed towards
ECR International, and begs leave to refer all questions of law to this honorable Court.
11. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “66” through “73” of the
Verified Complaint as they relate to other defendants and therefore denies them, and begs leave to
refer all questions of law to this honorable Court.
AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF
WARRANTY, ECR INTERNATIONAL ANSWERS AS FOLLOWS:
12. Repeats and reiterates each and every response hereinbefore made with the same
force and effect as though the same were set forth at length herein in response to paragraph “74”
of the Verified Complaint.
13. ECR International denies each and every allegation contained in paragraphs
“75” through “78” of the Verified Complaint to the extent that such allegations are directed
towards ECR International, and refers all questions of law to this honorable Court.
14. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “75” through “78” of the
Verified Complaint as they relate to other defendants and therefore denies them, and begs leave to
refer all questions of law to this honorable Court.
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AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY,
ECR INTERNATIONAL ANSWERS AS FOLLOWS:
15. Repeats and reiterates each and every response hereinbefore made with the same
force and effect as though the same were set forth at length herein in response to paragraph “79”
of the Verified Complaint.
16. ECR International denies each and every allegation contained in paragraphs “80”
through “88” of the Verified Complaint to the extent that such allegations are directed towards
ECR International, and refers all questions of law to this honorable Court.
17. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “80” through “88” of the
Verified Complaint as they relate to other defendants, and therefore denies them, and refers all
questions of law to this honorable Court.
AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS, ECR
INTERNATIONAL ANSWERS AS FOLLOWS:
18. Repeats and reiterates each and every response hereinbefore made with the same
force and effect as though the same were set forth at length herein in response to paragraph “89”
of the Verified Complaint.
19. ECR International denies each and every allegation contained in paragraphs “90”,
“91”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104”, “105” and
“107” of the Verified Complaint to the extent that such allegations are directed towards ECR
International, and refers all questions of law to the Court.
20. ECR International is without knowledge or information sufficient to form a belief
as to the truth of the allegations contained in paragraphs “90”, “91”, “93”, “94”, “95”, “96”, “97”,
“98”, “99”, “100”, “101”, “102”, “103”, “104”, “105” and “107” of the Verified Complaint as they
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relate to other defendants, and therefore denies them, and refers all questions of law to this
honorable Court.
21. ECR International denies any knowledge or information sufficient to form a belief
as to the allegations contained in paragraphs “92” and “106” of the Verified Complaint, and
therefore denies them, and refers all questions of law to this honorable Court.
AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
METROPOLITAN LIFE INSURANCE COMPANY, ECR INTERNATIONAL
ANSWERS AS FOLLOWS:
22. Repeats and reiterates each and every response hereinbefore made with the same
force and effect as though the same were set forth at length herein in response to paragraph “108”
of the Verified Complaint.
23. ECR International denies any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “109” through “115” of the
Verified Complaint as they relate to another defendant, and therefore denies them.
AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
COLLECTIVE LIABILITY/CONCERT OF ACTION, ECR INTERNATIONAL
ANSWERS AS FOLLOWS:
24. Repeats and reiterates each and every response hereinbefore made with the same
force and effect as though the same were set forth at length herein in response to paragraph “116”
of the Complaint.
25. ECR International denies each and every allegation contained in paragraphs “117”,
“118”, “119”, “120”, “121”, “122”, “123”, “124”, “125”, “127”, “128”, “129”, “130” and “131”
of the Verified Complaint to the extent that such allegations are directed towards ECR
International, and refers all questions of law to the Court.
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26. ECR International is without knowledge or information sufficient to form a belief
as to each and every allegation contained in paragraphs “117”, “118”, “119”, “120”, “121”, “122”,
“123”, “124”, “125”, “127”, “128”, “129”, “130” and “131” of the Verified Complaint as they
relate to other defendants, and therefore denies them, and refers all questions of law to this
honorable Court.
27. ECR International denies each and every allegation contained in paragraph “126”
of the Verified Compliant and begs leave to refer all questions of law to this honorable Court.
AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT
CONTRACTORS, ECR INTERNATIONAL ANSWERS AS FOLLOWS:
28. Repeats and reiterates each and every response hereinbefore made with the same
force and effect as though the same were set forth at length herein in response to paragraph “132”
of the Complaint.
29. ECR International denies that the term ‘contractor(s)’ as defined in the paragraph
of the Verified Complaint numbered “133” applies to ECR International in this action.
30. ECR International denies each and every allegation contained in paragraphs “134”,
“135”, “136”, “137”, “138”, “139”, “142”, “143” “144” and “145” of the Verified Complaint to
the extent that such allegations are directed toward ECR International, and begs leave to refer all
questions of law to this honorable Court.
31. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “134”, “135”, “136”, “137”,
“138”, “139”, “142”, “143” “144” and “145” of the Verified Complaint as they relate to other
defendants and therefore denies them, and begs leave to refer all questions of law to this honorable
Court.
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32. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “140” and “141” of the Verified
Complaint, and therefore denies them, and begs leave to refer all questions of law to this honorable
Court.
AS AND FOR A EIGHTH CAUSE OF ACTION AGAINST CERTAIN DEFENDANTS,
ECR INTERNATIONAL ANSWERS AS FOLLOWS:
33. Repeats and reiterates each and every response hereinbefore made with the same
force and effect as though the same were set forth at length herein in response to paragraph “146”
of the Complaint.
34. ECR International denies each and every allegation contained in paragraphs “147”,
“148”, “149”, “150”, “151”, “152”, “153”, “154”, “158”, “159” and “160” of the Verified
Complaint to the extent that such allegations are directed toward ECR International, and begs leave
to refer all questions of law to this honorable Court.
35. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “147”, “148”, “149”, “150”,
“151”, “152”, “153”, “154”, “158”, “159” and “160” of the Verified Complaint as they relate to
other defendants and therefore denies them, and begs leave to refer all questions of law to this
honorable Court.
36. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “155”, “156” and “157” of the
Verified Complaint and therefore denies them, and begs leave to refer all questions of law to this
honorable Court.
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37. With regard to the allegations contained in paragraph “161” of the Verified
Complaint, ECR International admits that this case is governed by the “Substantive Law of
Admiralty” but denies that, as such this case is therefore “nonremovable,” and further begs leave
to refer all questions of law to this honorable Court.
AS AND FOR A NINTH CAUSE OF ACTION FOR JOINT AND SEVERAL LIABILITY,
ECR INTERNATIONAL ANSWERS AS FOLLOWS:
38. Repeats and reiterates each and every denial hereinbefore made with the same force
and effect as though the same were set forth at length herein in response to paragraph “162” of the
Verified Complaint.
39. ECR International denies each and every allegation contained in paragraphs “163”,
“164”, “165”, “168”, “169”, “170”, “171”, “173” and “174” of the Verified Complaint to the extent
that such allegations are directed towards ECR International, and begs leave to refer all questions
of law to this honorable Court.
40. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “163”, “164”, “165”, “168”,
“169”, “170”, “171”, “173” and “174” of the Verified Complaint as they relate to other defendants
and therefore denies them, and begs leave to refer all questions of law to this honorable Court.
41. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “166”, “167” and “172” of the
Verified Complaint and therefore denies them, and begs leave to refer all questions of law to this
honorable Court.
AS AND FOR A TENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES, ECR
INTERNATIONAL ANSWERS AS FOLLOWS:
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42. Repeats and reiterates each and every denial hereinbefore made with the same force
and effect as though the same were set forth at length herein in response to paragraph “175” of the
Verified Complaint.
43. ECR International denies each and every allegation contained in paragraph “176”
of the Verified Complaint to the extent that such allegations are directed toward ECR International,
and begs leave to refer all questions of law to this honorable Court.
44. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph “176” of the Verified Complaint
as they relate to other defendants and therefore denies them, and begs leave to refer all questions
of law to this honorable Court.
AS AND FOR A ELEVENTH CAUSE OF ACTION FOR LOSS OF CONSORTIUM,
ECR INTERNATIONAL ANSWERS AS FOLLOWS:
45. Repeats and reiterates each and every denial hereinbefore made with the same force
and effect as though the same were set forth at length herein in response to paragraph “177” of the
Verified Complaint.
46. ECR International is without knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs “178” and “179” of the Verified
Complaint and therefore denies them, and begs leave to refer all questions of law to this honorable
Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
47. The Verified Complaint fails to state a cause of action against ECR International.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
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UPON INFORMATION AND BELIEF
48. This Court lacks jurisdiction over the subject matter of this action.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
49. The damages allegedly sustained by the plaintiffs were caused, in whole or in part, by
the negligence or other culpable conduct of the plaintiffs and/or defendants other than ECR
International, which conduct constituted a supervening cause of plaintiffs’ alleged injuries.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
50. To the extent that the Verified Complaint and each cause of action considered
separately may allege a cause of action occurring before September 1, 1975, each such cause of action
is barred by reason of the culpable conduct attributable to plaintiffs, including contributory negligence
and assumption of the risk.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
51. Any damages allegedly sustained by the plaintiffs were the proximate result of the
unforeseen and/or unforeseeable negligent, grossly negligent, wanton or reckless omission or conduct
of intervening third parties or superseding parties.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
52. The damages allegedly sustained by the plaintiffs were caused, in whole or in part, by
the negligence or other culpable conduct of one or more persons or instrumentalities over which ECR
International had no control and with whom it had no legal relationship.
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AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
53. The damages allegedly sustained by the plaintiffs were caused, in whole or in part,
through the operation of nature.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
54. If the plaintiffs sustained damages as alleged, such damages occurred while they
engaged in activities into which they entered knowing the hazard, risk and danger of the activities and
they assumed the risks incidental to and attendant to the activities.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
55. The lawsuit was not commenced by the plaintiffs within the time prescribed by law
and the plaintiffs, therefore, are barred from recovery pursuant to applicable statutes of limitations.
AS AND FOR AN TENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
56. All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31,
1986) are time-barred in that said statute is in violation of the Constitution of the United States and
the Constitution of the State of New York.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
57. To the extent applicable to a particular plaintiff(s), this action cannot be maintained,
as there is another action pending for the same relief.
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AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
58. To the extent that any injury relating to the named plaintiffs occurred in the context of
an employer-employee relationship, claims for said injuries are barred by the Workers' Compensation
Act.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
59. No acts or omissions of ECR International proximately caused any damages.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
60. Any ECR International equipment that may have been present at plaintiffs’ job
locations was placed in any such buildings upon specification, approval or at the instruction of
governmental or legislative agencies or bodies.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
61. The damages allegedly sustained by the plaintiffs, which allegedly arose from their
work with or around allegedly asbestos containing products (the “Products”) utilized in connection
with ECR International equipment were caused, in whole or in part, by the improper use of the
Products, rather than any defect in the design, manufacture, production, assemblage, installation,
testing, labeling, marketing, distribution, sale or inspection of the Products by ECR International.
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AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
62. The damages allegedly sustained by the plaintiffs which allegedly arose from the
Products were caused by the alteration, misuse and/or improper maintenance of the Products by one
or more persons or instrumentalities other than ECR International, rather than any defect in the design,
manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or
inspection of the Products by ECR International.
AS AND FOR AN SEVENTEENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
63. ECR International is not liable for the damages allegedly sustained by plaintiffs
because plaintiffs were not in privity of contract with ECR International at any time.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
64. The Products were not defective or dangerous at any time when ECR International
had possession or control of them.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
65. All implied warranties, including the warranties of merchantability and fitness for a
particular purpose, were excluded at the time of the sale of the Products.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
66. No implied warranties, including the warranties of merchantability and fitness for a
particular purpose, became a part of the basis of the bargain in the sale of the Products.
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AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
67. ECR International is not liable to plaintiffs for the damages alleged in the Verified
Complaint because such damages are excluded and not recoverable under express warranty.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
68. The purchaser of the Products and all beneficiaries of any warranties, express or
implied, relating to the Products failed to provide notice of the alleged breaches of warranty to ECR
International pursuant to the applicable provision(s) of the Uniform Commercial Code.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
69. Oral warranties upon which plaintiffs allegedly relied are unavailable as violative of
the provisions of the applicable Statute of Frauds.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
70. To the extent that plaintiffs sustained injuries from the use of a product alleged to
contain asbestos, which is denied, plaintiffs, plaintiffs’ decedents, other defendants or other parties
not under the control of ECR International misused, abused, misapplied and otherwise mishandled
the product alleged to be asbestos material. Therefore, the amount of damages which may be
recoverable must be diminished by the proportion which said misuse, abuse, misapplication and
mishandling bears to the conduct which caused the alleged damage or injury.
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AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
71. In the event it should be proven at the time of trial that all the defendants to this action
are subject to market share liability, which ECR International denies is available in this case, then
ECR International’s share of such liability would be of such a de minimis amount as to make its
contribution for damages negligible and ECR International would be entitled to contribution, either
in whole or in part, from co-defendants.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
72. The asbestos products alleged in plaintiffs’ Verified Complaint are not products
within the meaning and scope of the Restatement of Torts Section 402A and, as such, the Verified
Complaint fails to state a cause of action in strict liability.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
73. ECR International 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.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
74. The plaintiffs did not directly or indirectly purchase any asbestos-containing products
or materials from ECR International and the plaintiffs did not either receive or rely upon any
representation or warranty allegedly made by ECR International.
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AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
75. To the extent that the plaintiffs were exposed to any product containing asbestos as a
result of conduct by ECR International, which is denied, said exposure was de minimis and not a
substantial contributing factor to any asbestos-related disease which the plaintiffs may have
developed, and not actionable at law or equity.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
76. Exposure to asbestos fibers attributable to the Products, which is denied, is so minimal
as to be insufficient to establish to a reasonable degree of probability that the Products are capable of
causing injury or damages and must be considered speculative as a matter of law.
AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
77. Finished asbestos-containing products are not unreasonably dangerous as a matter of
law.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
78. If ECR International was on notice of any hazard or defect for which plaintiffs seek
relief, which ECR International denies, plaintiffs also had such notice and are thereby barred from
recovery.
AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
79. Any damages must be reduced by the value of the benefit received by plaintiffs from
the use of ECR International’s products.
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AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
80. There is no justiciable issue or controversy.
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
81. The claims for damages have not accrued and are purely speculative, uncertain and
contingent.
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
82. Plaintiffs have acted voluntarily, unnecessarily, prematurely, with no evidence of
injury to anyone at any job locations.
AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
83. None of the alleged injuries or damages was foreseeable at the time of the Verified
Complaint or at the time of the alleged acts or omissions in plaintiffs’ Verified Complaint.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
84. ECR International was under no duty to warn purchasers, those who performed work,
or those under such purchasers’ control who were in a better position to warn; if warning was required,
ECR International’s failure to do so was not a superseding proximate cause of injury.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
85. Plaintiffs were warned of the risks of exposure to and use of asbestos-containing
materials.
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FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019
AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
86. Plaintiffs’ claims are barred as a matter of public policy, since social utility and benefit
of asbestos-containing products outweighed the risk.
AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
UPON INFORMATION AND BELIEF
87. To the extent that the plaintiffs seek to maintain a claim for relief on behalf of any
decedent, said plaintiffs lack capacity and/or standing to maintain such claim for relief against ECR
International.
AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
ECR INTERNATIONAL ALLEGES
Preview
FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - --------------------------------------------------------------------X : PANTELIS KAMMAS and KLEO KAMMAS, : Index No.: 190153-2019 : Plaintiff, : ECR INTERNATIONAL INC.’S : VERIFIED ANSWER INCLUDING - against - : AFFIRMATIVE DEFENSES AND : CROSS CLAIMS A.O. SMITH WATER PRODUCTS, et al. : : : -- -------------------------------------------------------------------X Defendant ECR INTERNATIONAL, INC., formerly known as Dunkirk Radiator Corporation and as successor by merger to The Utica Companies, Inc., incorrectly sued herein as ECR INTERNATIONAL, INC., Individually and as Successor to Dunkirk, Dunkirk Boilers, Utica Boilers and Pennco, Inc., (hereinafter “ECR International”), by its attorneys, Manning, Gross & Massenburg, LLP by way of a Verified Answer to Plaintiff’s Verified Complaint states as follows: VERIFIED COMPLAINT 1. ECR International denies any knowledge or information to form a belief as to the allegations contained in paragraphs of the Verified Complaint numbered “1”, “2” and “3” and begs leave to refer all questions of law to this honorable Court. 2. As “Defendants” refers to parties other than ECR International, ECR International denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs “4” and “5” of the Verified Complaint. 3. As “Defendants” refers to ECR International, ECR International denies the allegations contained in paragraph “4” and “5” of the Verified Complaint, except as to admit that 1 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 ECR International has “conducted or transacted business in” the State of New York, and begs leave to refer all questions of law to this honorable Court. 4. ECR International denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs of the Verified Complaint numbered “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “53”, “54”, “55” and “56.” 5. ECR International denies the allegations contained in paragraph “21” of the Verified Complaint, except to admit that ECR International is a duly organized domestic corporation that has “done business” and or “transacted business” in the State of New York, and begs leave to refer all questions of law to this honorable court. 6. As “Defendants” refers to parties other than ECR International, ECR International denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs of the Verified Complaint numbered “57”, “58”, “59”, “60”, “61”, “62”, “63” and “64.” 7. As “Defendants” refers to ECR International, ECR International denies the allegations contained in paragraph of the Verified Complaint numbered “57” except to admit that ECR International has “done business in” and “conducted or transacted business in” the State of New York, and begs leave to refer all questions of law to this honorable Court. 8. As “Defendants” refers to ECR International, ECR International denies the allegations contained in paragraphs of the Verified Complaint numbered “58”, “59”, “60”, “61”, “62”, “63” and “64”and begs leave to refer all questions of law to this honorable Court. 2 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 9. Repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “65” of the Verified Complaint. 10. ECR International denies each and every allegation contained in paragraphs “66” through “73” of the Verified Complaint to the extent that such allegations are directed towards ECR International, and begs leave to refer all questions of law to this honorable Court. 11. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “66” through “73” of the Verified Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all questions of law to this honorable Court. AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 12. Repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “74” of the Verified Complaint. 13. ECR International denies each and every allegation contained in paragraphs “75” through “78” of the Verified Complaint to the extent that such allegations are directed towards ECR International, and refers all questions of law to this honorable Court. 14. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “75” through “78” of the Verified Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all questions of law to this honorable Court. 3 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 15. Repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “79” of the Verified Complaint. 16. ECR International denies each and every allegation contained in paragraphs “80” through “88” of the Verified Complaint to the extent that such allegations are directed towards ECR International, and refers all questions of law to this honorable Court. 17. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “80” through “88” of the Verified Complaint as they relate to other defendants, and therefore denies them, and refers all questions of law to this honorable Court. AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 18. Repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “89” of the Verified Complaint. 19. ECR International denies each and every allegation contained in paragraphs “90”, “91”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104”, “105” and “107” of the Verified Complaint to the extent that such allegations are directed towards ECR International, and refers all questions of law to the Court. 20. ECR International is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “90”, “91”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104”, “105” and “107” of the Verified Complaint as they 4 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 relate to other defendants, and therefore denies them, and refers all questions of law to this honorable Court. 21. ECR International denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs “92” and “106” of the Verified Complaint, and therefore denies them, and refers all questions of law to this honorable Court. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 22. Repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “108” of the Verified Complaint. 23. ECR International denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “109” through “115” of the Verified Complaint as they relate to another defendant, and therefore denies them. AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 24. Repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “116” of the Complaint. 25. ECR International denies each and every allegation contained in paragraphs “117”, “118”, “119”, “120”, “121”, “122”, “123”, “124”, “125”, “127”, “128”, “129”, “130” and “131” of the Verified Complaint to the extent that such allegations are directed towards ECR International, and refers all questions of law to the Court. 5 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 26. ECR International is without knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs “117”, “118”, “119”, “120”, “121”, “122”, “123”, “124”, “125”, “127”, “128”, “129”, “130” and “131” of the Verified Complaint as they relate to other defendants, and therefore denies them, and refers all questions of law to this honorable Court. 27. ECR International denies each and every allegation contained in paragraph “126” of the Verified Compliant and begs leave to refer all questions of law to this honorable Court. AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 28. Repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “132” of the Complaint. 29. ECR International denies that the term ‘contractor(s)’ as defined in the paragraph of the Verified Complaint numbered “133” applies to ECR International in this action. 30. ECR International denies each and every allegation contained in paragraphs “134”, “135”, “136”, “137”, “138”, “139”, “142”, “143” “144” and “145” of the Verified Complaint to the extent that such allegations are directed toward ECR International, and begs leave to refer all questions of law to this honorable Court. 31. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “134”, “135”, “136”, “137”, “138”, “139”, “142”, “143” “144” and “145” of the Verified Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all questions of law to this honorable Court. 6 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 32. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “140” and “141” of the Verified Complaint, and therefore denies them, and begs leave to refer all questions of law to this honorable Court. AS AND FOR A EIGHTH CAUSE OF ACTION AGAINST CERTAIN DEFENDANTS, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 33. Repeats and reiterates each and every response hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “146” of the Complaint. 34. ECR International denies each and every allegation contained in paragraphs “147”, “148”, “149”, “150”, “151”, “152”, “153”, “154”, “158”, “159” and “160” of the Verified Complaint to the extent that such allegations are directed toward ECR International, and begs leave to refer all questions of law to this honorable Court. 35. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “147”, “148”, “149”, “150”, “151”, “152”, “153”, “154”, “158”, “159” and “160” of the Verified Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all questions of law to this honorable Court. 36. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “155”, “156” and “157” of the Verified Complaint and therefore denies them, and begs leave to refer all questions of law to this honorable Court. 7 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 37. With regard to the allegations contained in paragraph “161” of the Verified Complaint, ECR International admits that this case is governed by the “Substantive Law of Admiralty” but denies that, as such this case is therefore “nonremovable,” and further begs leave to refer all questions of law to this honorable Court. AS AND FOR A NINTH CAUSE OF ACTION FOR JOINT AND SEVERAL LIABILITY, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 38. Repeats and reiterates each and every denial hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “162” of the Verified Complaint. 39. ECR International denies each and every allegation contained in paragraphs “163”, “164”, “165”, “168”, “169”, “170”, “171”, “173” and “174” of the Verified Complaint to the extent that such allegations are directed towards ECR International, and begs leave to refer all questions of law to this honorable Court. 40. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “163”, “164”, “165”, “168”, “169”, “170”, “171”, “173” and “174” of the Verified Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all questions of law to this honorable Court. 41. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “166”, “167” and “172” of the Verified Complaint and therefore denies them, and begs leave to refer all questions of law to this honorable Court. AS AND FOR A TENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 8 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 42. Repeats and reiterates each and every denial hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “175” of the Verified Complaint. 43. ECR International denies each and every allegation contained in paragraph “176” of the Verified Complaint to the extent that such allegations are directed toward ECR International, and begs leave to refer all questions of law to this honorable Court. 44. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph “176” of the Verified Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all questions of law to this honorable Court. AS AND FOR A ELEVENTH CAUSE OF ACTION FOR LOSS OF CONSORTIUM, ECR INTERNATIONAL ANSWERS AS FOLLOWS: 45. Repeats and reiterates each and every denial hereinbefore made with the same force and effect as though the same were set forth at length herein in response to paragraph “177” of the Verified Complaint. 46. ECR International is without knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs “178” and “179” of the Verified Complaint and therefore denies them, and begs leave to refer all questions of law to this honorable Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 47. The Verified Complaint fails to state a cause of action against ECR International. AS AND FOR A SECOND AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES 9 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 UPON INFORMATION AND BELIEF 48. This Court lacks jurisdiction over the subject matter of this action. AS AND FOR A THIRD AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 49. The damages allegedly sustained by the plaintiffs were caused, in whole or in part, by the negligence or other culpable conduct of the plaintiffs and/or defendants other than ECR International, which conduct constituted a supervening cause of plaintiffs’ alleged injuries. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 50. To the extent that the Verified Complaint and each cause of action considered separately may allege a cause of action occurring before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to plaintiffs, including contributory negligence and assumption of the risk. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 51. Any damages allegedly sustained by the plaintiffs were the proximate result of the unforeseen and/or unforeseeable negligent, grossly negligent, wanton or reckless omission or conduct of intervening third parties or superseding parties. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 52. The damages allegedly sustained by the plaintiffs were caused, in whole or in part, by the negligence or other culpable conduct of one or more persons or instrumentalities over which ECR International had no control and with whom it had no legal relationship. 10 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 53. The damages allegedly sustained by the plaintiffs were caused, in whole or in part, through the operation of nature. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 54. If the plaintiffs sustained damages as alleged, such damages occurred while they engaged in activities into which they entered knowing the hazard, risk and danger of the activities and they assumed the risks incidental to and attendant to the activities. AS AND FOR A NINTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 55. The lawsuit was not commenced by the plaintiffs within the time prescribed by law and the plaintiffs, therefore, are barred from recovery pursuant to applicable statutes of limitations. AS AND FOR AN TENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 56. All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 57. To the extent applicable to a particular plaintiff(s), this action cannot be maintained, as there is another action pending for the same relief. 11 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 58. To the extent that any injury relating to the named plaintiffs occurred in the context of an employer-employee relationship, claims for said injuries are barred by the Workers' Compensation Act. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 59. No acts or omissions of ECR International proximately caused any damages. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 60. Any ECR International equipment that may have been present at plaintiffs’ job locations was placed in any such buildings upon specification, approval or at the instruction of governmental or legislative agencies or bodies. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 61. The damages allegedly sustained by the plaintiffs, which allegedly arose from their work with or around allegedly asbestos containing products (the “Products”) utilized in connection with ECR International equipment were caused, in whole or in part, by the improper use of the Products, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Products by ECR International. 12 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 62. The damages allegedly sustained by the plaintiffs which allegedly arose from the Products were caused by the alteration, misuse and/or improper maintenance of the Products by one or more persons or instrumentalities other than ECR International, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Products by ECR International. AS AND FOR AN SEVENTEENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 63. ECR International is not liable for the damages allegedly sustained by plaintiffs because plaintiffs were not in privity of contract with ECR International at any time. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 64. The Products were not defective or dangerous at any time when ECR International had possession or control of them. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 65. All implied warranties, including the warranties of merchantability and fitness for a particular purpose, were excluded at the time of the sale of the Products. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 66. No implied warranties, including the warranties of merchantability and fitness for a particular purpose, became a part of the basis of the bargain in the sale of the Products. 13 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 67. ECR International is not liable to plaintiffs for the damages alleged in the Verified Complaint because such damages are excluded and not recoverable under express warranty. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 68. The purchaser of the Products and all beneficiaries of any warranties, express or implied, relating to the Products failed to provide notice of the alleged breaches of warranty to ECR International pursuant to the applicable provision(s) of the Uniform Commercial Code. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 69. Oral warranties upon which plaintiffs allegedly relied are unavailable as violative of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 70. To the extent that plaintiffs sustained injuries from the use of a product alleged to contain asbestos, which is denied, plaintiffs, plaintiffs’ decedents, other defendants or other parties not under the control of ECR International misused, abused, misapplied and otherwise mishandled the product alleged to be asbestos material. Therefore, the amount of damages which may be recoverable must be diminished by the proportion which said misuse, abuse, misapplication and mishandling bears to the conduct which caused the alleged damage or injury. 14 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 71. In the event it should be proven at the time of trial that all the defendants to this action are subject to market share liability, which ECR International denies is available in this case, then ECR International’s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible and ECR International would be entitled to contribution, either in whole or in part, from co-defendants. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 72. The asbestos products alleged in plaintiffs’ Verified Complaint are not products within the meaning and scope of the Restatement of Torts Section 402A and, as such, the Verified Complaint fails to state a cause of action in strict liability. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 73. ECR International 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. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 74. The plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from ECR International and the plaintiffs did not either receive or rely upon any representation or warranty allegedly made by ECR International. 15 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 75. To the extent that the plaintiffs were exposed to any product containing asbestos as a result of conduct by ECR International, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which the plaintiffs may have developed, and not actionable at law or equity. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 76. Exposure to asbestos fibers attributable to the Products, which is denied, is so minimal as to be insufficient to establish to a reasonable degree of probability that the Products are capable of causing injury or damages and must be considered speculative as a matter of law. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 77. Finished asbestos-containing products are not unreasonably dangerous as a matter of law. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 78. If ECR International was on notice of any hazard or defect for which plaintiffs seek relief, which ECR International denies, plaintiffs also had such notice and are thereby barred from recovery. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 79. Any damages must be reduced by the value of the benefit received by plaintiffs from the use of ECR International’s products. 16 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 80. There is no justiciable issue or controversy. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 81. The claims for damages have not accrued and are purely speculative, uncertain and contingent. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 82. Plaintiffs have acted voluntarily, unnecessarily, prematurely, with no evidence of injury to anyone at any job locations. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 83. None of the alleged injuries or damages was foreseeable at the time of the Verified Complaint or at the time of the alleged acts or omissions in plaintiffs’ Verified Complaint. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 84. ECR International was under no duty to warn purchasers, those who performed work, or those under such purchasers’ control who were in a better position to warn; if warning was required, ECR International’s failure to do so was not a superseding proximate cause of injury. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 85. Plaintiffs were warned of the risks of exposure to and use of asbestos-containing materials. 17 of 26 FILED: NEW YORK COUNTY CLERK 08/20/2019 01:33 PM INDEX NO. 190153/2019 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 86. Plaintiffs’ claims are barred as a matter of public policy, since social utility and benefit of asbestos-containing products outweighed the risk. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES UPON INFORMATION AND BELIEF 87. To the extent that the plaintiffs seek to maintain a claim for relief on behalf of any decedent, said plaintiffs lack capacity and/or standing to maintain such claim for relief against ECR International. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE ECR INTERNATIONAL ALLEGES