On June 25, 2019 a
Answer
was filed
involving a dispute between
Kleo Kammas,
Pantelis Kammas,
and
Aii Acquisition Corporation, Llc, Individually And As Successor-In-Interest To Athlone Industries, Inc. And Holland Furnace Company,
American International Industries, Inc.,
A.O. Smith Water Products,
Armstrong International, Inc.,
Atwood & Morrill Co., Inc. D B A Weir Valves & Controls Usa Inc.,
Aurora Pump Company,
Burnham Corporation,
Carrier Corporation,
Cbs Corporation, A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Cleaver-Brooks Company F K A Aqua-Chem, Inc.,
Columbia Boiler Company Of Pottstown,
Compudyne Corporation, Individually And As Successor To York-Shipley,
Crane Co.,
Crown Boiler Co.,
Ecr International, Inc., Individually And As Successor To Dunkirk, Dunkirk Boilers And Utica Boilers,
Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. And Edward Vogt Valve Company,
Foster Wheeler, Llc,
General Electric Company,
Goulds Pumps, Inc.,
Grinnell Corporation,
H.B. Smith Co., Inc.,
H.C. Oswald Supply Co., Inc.,
Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp.,
International Comfort Products Llc, Individually And As Successor To Heil Heating And Cooling,
I.T.T. Industries, Inc., Individually And As Successor To Bell & Gossett,
Jenkins Bros.,
J.H. France Refractories Company, Individually And As Successor To Greenpoint Firebrick,
Kohler Co.,
Lennox Industries, Inc., Individually And As Successor To Lennox Furnace Company And Ducane,
Metropolitan Life Insurance Co.,
Nash Engineering Company,
New Yorker Boiler Company, Inc.,
N & S Supply Of Fishkill, Inc.,
Pecora Corporation, Individually And As Successor To Pecora Corporation, New Pecora Corporation, And New Pecora Corporation, Inc.,
Peerless Industries, Inc.,
Pennco Inc.,
Rheem Manufacturing Company, Inc.,
Riley Power, Inc. F K A Babcock Borsig Power, Inc. And F K A Riley-Stoker Corporation D B A Db Riley, Inc.,
Rockwell Automation, Inc., Individually And As Successor To Allen Bradley, Timken Heating Business And S. Co., Inc. F K A Scaife Company, As Successor In Interest To Rockwell Spring & Axle Company’S Timken Silent Automatic Division,
Sid Harvey Industries, Inc.,
Sid Harvey Supply, Inc.,
Spence Engineering Company, Inc.,
Spencer Heater, A Lycoming Division Of Avco Corporation,
Taco, Inc.,
Texaco, Inc.,
Union Carbide Corporation,
Warren Pumps Llc, Individually And As Successor To The Quimby Pump Company,
Weil Mclain, A Division Of Marley-Wylain Company,
William Powell Company,
York International Corporation, Individually And As Successor To Frick Company,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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Index No. 190153/2019
This Document Relates To:
PANTELIS KAMMAS and KLEO KAMMAS,
Plaintiffs,
VERIFIED ANSWER
vs.
A.O. SMITH WATER PRODUCTS, et al.,
Defendants.
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ANSWER TO PLAINTIFFS’ ASBESTOS
COMPLAINT AND AFFIRMATIVE DEFENSES,
OF DEFENDANT ITT LLC
Defendant ITT LLC and Bell & Gossett Company, now known as ITT LLC (hereinafter
referred to as “ITT”), as its Answer to Plaintiffs’ Asbestos Complaint (hereinafter referred to as
“Complaint”) and Affirmative Defenses, states as follows:
1–3. ITT is without knowledge or information to form a belief as to the truth of the
allegations set forth in Paragraphs 1 through 3.
4–5. To the extent that the allegations in Paragraphs 4 and 5 are directed against ITT,
ITT denies the allegations. Answering further, the allegation that ITT has conducted and/or
transacted business in New York is a question of law to be adjudicated by this Court. To the extent
that Paragraphs 4 and 5 contain allegations against entities other than ITT, ITT is without
knowledge or information sufficient to form a belief as to the truth of the allegations set forth
against those entities.
6–29. Paragraphs 6 through 29 make no allegation against ITT and therefore ITT makes
no answer thereto.
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30. To the extent that Paragraph 30 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 30. Answering further, the allegation that ITT has conducted
and/or transacted business in New York is a question of law to be adjudicated by this Court. To
the extent that Paragraph 30 contains allegations against entities other than ITT, ITT is without
knowledge or information to form a belief as to the truth of the allegations set forth against those
entities.
31–56. Paragraphs 31 through 56 make no allegation against ITT and therefore ITT
makes no answer thereto.
57–64. To the extent that the allegations in Paragraphs 57 through 64 are directed against
ITT, ITT denies the allegations. To the extent that Paragraphs 57 through 64 contain allegations
against entities other than ITT, ITT is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
AS AND FOR A FIRST CAUSE OF ACTION
65. ITT repeats each and every answer contained in Paragraphs 1 through 64 of this
Answer herein with the same force and effect is as if fully set forth herein.
66–73. To the extent that Paragraphs 66 through 73, including subparagraphs (a)–(m) of
Paragraph 70, contain allegations against ITT, ITT denies the allegations set forth in Paragraphs
66 through 73, including subparagraphs (a)–(m) of Paragraph 70. To the extent that Paragraphs 66
through 73, including subparagraphs (a)–(m) of Paragraph 70, contain allegations against entities
other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth
of the allegations set forth against those entities.
AS AND FOR A SECOND CAUSE OF ACTION
74. ITT repeats each and every answer contained in Paragraphs 1 through 73 of this
Answer herein with the same force and effect is as if fully set forth herein.
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75–78. To the extent that Paragraphs 75 through 78 contain allegations against ITT, ITT
denies the allegations set forth in Paragraphs 75 through 78. To the extent that Paragraphs 75
through 78 contain allegations against entities other than ITT, ITT is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
AS AND FOR A THIRD CAUSE OF ACTION
79. ITT repeats each and every answer contained in Paragraphs 1 through 78 of this
Answer herein with the same force and effect is as if fully set forth herein.
80–88. To the extent that Paragraphs 80 through 88 contain allegations against ITT, ITT
denies the allegations set forth in Paragraphs 80 through 88. To the extent that Paragraphs 80
through 88 contain allegations against entities other than ITT, ITT is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
AS AND FOR A FOURTH CAUSE OF ACTION
89. ITT repeats each and every answer contained in Paragraphs 1 through 88 of this
Answer herein with the same force and effect is as if fully set forth herein.
90–91. To the extent that Paragraphs 90 and 91 contain allegations against ITT, ITT
denies the allegations set forth in Paragraphs 90 and 91. To the extent that Paragraphs 90 and 91
contain allegations against entities other than ITT, ITT is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
92. The allegations in Paragraph 92 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 92 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 92. To the extent that Paragraph 92 contains allegations against
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entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
93–98. To the extent that Paragraphs 93 through 98 contain allegations against ITT, ITT
denies the allegations set forth in Paragraphs 93 through 98. To the extent that Paragraphs 93
through 98 contain allegations against entities other than ITT, ITT is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
99. The applications of the New York Labor Law and the New York Industrial Code
12NYR are questions of law to be determined by this Court; therefore ITT denies the allegations
set forth in Paragraph 99 and subparagraphs (a)–(f) of the Complaint.
100–105. To the extent that Paragraphs 100 through 105 contain allegations against
ITT, ITT denies the allegations set forth in Paragraphs 100 through 105. To the extent that
Paragraphs 100 through 105 contain allegations against entities other than ITT, ITT is without
knowledge or information sufficient to form a belief as to the truth of the allegations set forth
against those entities.
106. The allegations in Paragraph 106 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 106 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 106. To the extent that Paragraph 106 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
107. The application of the New York State Industrial Code 23 1.7 (g) and its
predecessor is a question of law to be determined by this Court; therefore ITT denies the allegations
set forth in Paragraph 107 of the Complaint.
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AS AND FOR A FIFTH CAUSE OF ACTION
108. ITT repeats each and every answer contained in Paragraphs 1 through 107 of this
Answer herein with the same force and effect is as if fully set forth herein.
109–115. To the extent that Paragraphs 109 through 115 contain allegations against
ITT, ITT denies the allegations set forth in Paragraphs 109 through 115. To the extent that
Paragraphs 109 through 115 contain allegations against entities other than ITT, ITT is without
knowledge or information sufficient to form a belief as to the truth of the allegations set forth
against those entities.
AS AND FOR A SIXTH CAUSE OF ACTION
116. ITT repeats each and every answer contained in Paragraphs 1 through 115 of this
Answer herein with the same force and effect is as if fully set forth herein.
117–125. To the extent that Paragraphs 117 through 125, including subparagraphs (i)–
(iii) of Paragraph 124, contain allegations against ITT, ITT denies the allegations set forth in
Paragraphs 117 through 125, including subparagraphs (i)–(iii) of Paragraph 124. To the extent that
Paragraphs 117 through 125, including subparagraphs (i)–(iii) of Paragraph 124, contain
allegations against entities other than ITT, ITT is without knowledge or information sufficient to
form a belief as to the truth of the allegations set forth against those entities.
126. ITT denies the allegations in Paragraph 126.
127–131. To the extent that Paragraphs 127 through 131 contain allegations against
ITT, ITT denies the allegations set forth in Paragraphs 127 through 131. To the extent that
Paragraphs 127 through 131 contain allegations against entities other than ITT, ITT is without
knowledge or information sufficient to form a belief as to the truth of the allegations set forth
against those entities.
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AS AND FOR A SEVENTH CAUSE OF ACTION
132. ITT repeats each and every answer contained in Paragraphs 1 through 131 of this
Answer herein with the same force and effect is as if fully set forth herein.
133–141. To the extent that Paragraphs 133 through 141 contain allegations against
ITT, ITT denies the allegations set forth in Paragraphs 133 through 141. To the extent that
Paragraphs 133 through 141 contain allegations against entities other than ITT, ITT is without
knowledge or information sufficient to form a belief as to the truth of the allegations set forth
against those entities.
142. The applications of the New York Labor Law and the New York Industrial Code
12NYR are questions of law to be determined by this Court; therefore ITT denies the allegations
set forth in Paragraph 142.
143. To the extent that Paragraph 143 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 143. To the extent that Paragraph 143 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
144. The applications of the New York Labor Law and the New York Industrial Code
12NYR are questions of law to be determined by this Court; therefore ITT denies the allegations
set forth in Paragraph 144.
145. To the extent that Paragraph 145 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 145. To the extent that Paragraph 145 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
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AS AND FOR AN EIGHTH CAUSE OF ACTION
146. ITT repeats each and every answer contained in Paragraphs 1 through 145 of this
Answer herein with the same force and effect is as if fully set forth herein.
147–160. To the extent that Paragraphs 147 through 160 contain allegations against ITT,
ITT denies the allegations set forth in Paragraphs 147 through 160. To the extent that Paragraphs
147 through 160 contain allegations against entities other than ITT, ITT is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
161. The substantive law governing this case is a question of law to be determined by
this Court; therefore ITT makes no answer thereto.
AS AND FOR A NINTH CAUSE OF ACTION
162. ITT repeats each and every answer contained in Paragraphs 1 through 161 of this
Answer herein with the same force and effect is as if fully set forth herein.
163–174. To the extent that Paragraphs 163 through 174 contain allegations against ITT,
ITT denies the allegations set forth in Paragraphs 163 through 174. To the extent that Paragraphs
163 through 174 contain allegations against entities other than ITT, ITT is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth against those
entities. Further, the application of NY Civ. Prac. L. Art. 16 §§1601–1602 and the workers’
compensation law are questions of law to be determined by this Court.
AS AND FOR A TENTH CAUSE OF ACTION
175. ITT repeats each and every answer contained in Paragraphs 1 through 174 of this
Answer herein with the same force and effect is as if fully set forth herein.
176. To the extent that Paragraph 176 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 176. To the extent that Paragraph 176 contains allegations against
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entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
the truth of the allegations set forth against those entities.
AS AND FOR AN ELEVENTH CAUSE OF ACTION
177. ITT repeats each and every answer contained in Paragraphs 1 through 176 of this
Answer herein with the same force and effect is as if fully set forth herein.
178. Paragraph 178 makes no allegation against ITT and therefore ITT makes no
answer thereto.
179. To the extent that Paragraph 179 contains allegations against ITT, ITT denies the
allegations set forth in Paragraph 179. To the extent that Paragraph 179 contains allegations against
entities other than ITT, ITT is without knowledge or information sufficient form a belief as to the
truth of the allegations set forth against those entities.
WHEREFORE, Defendant ITT LLC denies that Plaintiffs are entitled to compensatory
and punitive damages and further requests that Plaintiffs’ claims be dismissed with prejudice and
any other relief this Honorable Court deems just.
AFFIRMATIVE DEFENSES
First Defense
Plaintiffs’ Complaint fails to state a claim upon which relief may be granted.
Second Defense
Plaintiffs’ Complaint is barred by the applicable statute of repose or statute of limitations.
Third Defense
Any claim or cause of action Plaintiffs may have is barred, in whole or in part, by the
doctrines of laches, waiver, collateral estoppel, and/or res judicata.
Fourth Defense
Plaintiffs failed to plead the claims of fraud and conspiracy with proper specificity and, as
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such, all claims premised on fraud and/or conspiracy must be dismissed.
Fifth Defense
The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workers’
Compensation statutes and shall have constituted an industrial disability and Plaintiffs’ exclusive
remedy, if any, shall lie within the terms and ambit of said statute.
Sixth Defense
Plaintiffs’ claims and causes of action against Defendant are barred, in whole or in part,
because Defendant owed no legal duty to Plaintiffs or, if it owed such a legal duty, it did not breach
such duty.
Seventh Defense
The injuries allegedly sustained by Plaintiffs, if any, were proximately caused by Plaintiffs’
free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and
thus assuming the risks ordinary incident to such acts.
Eighth Defense
The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of the
risks, hazards, and dangers incident to the occupation of Plaintiff Pantelis Kammas all of which
were open, obvious and well known to Plaintiff, and the action is barred by Plaintiff’s assumption
of the risks thereof.
Ninth Defense
This action is barred, in whole or in part, by the misuse, abuse, or substantial modification
of the product.
Tenth Defense
The negligent acts or omissions of Plaintiffs were the sole proximate cause or proximate
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contributing cause of the injuries and damages of which Plaintiffs’ complains.
Eleventh Defense
Plaintiff Pantelis Kammas contributed to his illness, either in whole or in part, by the use
of other substances, products, medications and drugs. To the extent that Plaintiff Pantelis Kammas
used any tobacco products, any damages awarded should be reduced in whole or in part by the
amount of his damages caused by smoking.
Twelfth Defense
That the injuries and/or illnesses, if any, sustained by Plaintiffs were caused or contributed
to by the fault, neglect, and want of care on the part of Plaintiffs or of others for whose acts or
omissions or breach of legal duty Defendant is not liable.
Thirteenth Defense
Plaintiffs’ alleged damages were negligently caused in whole or in part by persons, firms,
corporations, or entities other than those parties before this Court and such negligence either bars
or comparatively reduces any possible recovery by Plaintiffs.
Fourteenth Defense
Insofar as the Complaint alleges a cause of action accruing on or after September 1, 1975
to recover damages for personal injuries, the amount of damages recoverable thereon must be
diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory
negligence and assumption of risk, in the proportion which the culpable conduct attributable to
Plaintiff bear to the culpable conduct which caused the damages.
Fifteenth Defense
If Plaintiffs suffered damages as a result of the allegations set forth in the Complaint, then
those damages were the result of intervening or superseding acts or omissions of persons other
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than the Defendant.
Sixteenth Defense
If Plaintiffs suffered injuries as a proximate result of a condition of Defendant’s products,
any of Defendant’s products would have been supplied to an employer of Plaintiff. Such employer
was a knowledgeable and sophisticated user of said products, and thus Defendant had no further
legal duty to warn or instruct Plaintiff.
Seventeenth Defense
If any of the allegations of Plaintiff with respect to the defective condition of asbestos or
asbestos products are proven, then Plaintiff is barred from any recovery due to the fact that at all
relevant times there was no known substitute for asbestos or asbestos products.
Eighteenth Defense
The state of the medical and scientific knowledge at all relevant times was such that
Defendant neither knew nor could have known that its asbestos-containing products presented a
foreseeable risk of harm to any person in the normal and expected use of those products.
Nineteenth Defense
To the extent that Defendant conformed to the scientific knowledge and research data
available throughout the industry and scientific community, Defendant shall have fulfilled its
obligations, if any, herein, and Plaintiffs’ claims shall be barred, in whole or in part.
Twentieth Defense
If Plaintiff sustained injuries as a result of exposure to any product manufactured by
Defendant, the degree of such damage attributable to Defendant’s product is negligible, and hence,
de minimis.
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Twenty-First Defense
Defendant cannot be held jointly and severally liable for acts or omissions of other
defendants because the acts and omissions of those other defendants were separate and distinct
and the alleged harm caused by each defendant is divisible.
Twenty-Second Defense
Defendant is not liable for any damages alleged to have resulted from exposure to any of
its products which were manufactured pursuant to Government specifications.
Twenty-Third Defense
Insofar as Plaintiff relies upon allegations of negligence, breaches of warranties, fraudulent
representations, and violations of obligations of strict product liability as against Defendant prior
to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of
action by reason of the failure to allege the freedom of Plaintiff from contributory negligence or
fault; and that if Plaintiff sustained the injuries, losses, and other damages complained of in the
Complaint, they were caused and brought about, in whole or in part, by the negligence,
carelessness, assumption of risk, fault or other culpable conduct of Plaintiff.
Twenty-Fourth Defense
To the extent that Plaintiff alleges rights assertedly derived from oral warranties or
undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds.
Twenty-Fifth Defense
To the extent Plaintiff alleges a cause of action for express and/or implied warranties and
the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to
allege privity of contract and/or privity of warranties between Plaintiff and Defendant.
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Twenty-Sixth Defense
To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and
prompt notice of any such breach to Defendant.
Twenty-Seventh Defense
Plaintiff did not directly or indirectly purchase any asbestos-containing products or
materials from Defendant, and Plaintiff neither received nor relied upon any representation or
warranty allegedly made by Defendant.
Twenty-Eighth Defense
The action cannot proceed in the absence of all parties who should be named in accordance
with New York CPLR § 1001.
Twenty-Ninth Defense
The recoverable damages, if any, should be diminished under the collateral source rule set
forth in New York CPLR § 4545.
Thirtieth Defense
To the extent that Plaintiff may recover damages from Defendant, Defendant is entitled to
indemnification and/or contribution, in whole or in part, from each of the other defendants in this
action.
Thirty-First Defense
If Defendant is ultimately found to be liable to Plaintiff, then, pursuant to New York CPLR
Article 16, it shall only be liable for its equitable share of Plaintiffs’ recovery since any liability
which will be found against it will be insufficient to impose joint liability.
Thirty-Second Defense
Pursuant to New York CPLR Article 16, the liability, if any, of Defendant for non-
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economic loss shall not exceed its equitable share of liability.
Thirty-Third Defense
To the extent Plaintiffs seek to hold Defendant liable retroactively for conduct that was not
actionable at the time it occurred, Plaintiffs’ claims violate Defendant’s right to be free from ex
post facto laws and Defendant’s procedural and substantive due process rights under the
Constitution of the United States.
Thirty-Fourth Defense
Any claim for exemplary and/or punitive damages is barred because such damages are not
recoverable or warranted in this action.
Thirty-Fifth Defense
The imposition of punitive damages on the facts alleged in the Complaint is barred by the
United States Constitution and the Constitution of the State of New York.
Thirty-Sixth Defense
Plaintiffs’ claim for punitive damages cannot be sustained because it would violate
Defendant’s rights under the Constitutions of the United States and the State of New York,
including, but not limited to:
(a) Defendant’s procedural and substantive due process rights and equal protection
rights under the Fifth and Fourteenth Amendments of the United States
Constitution and under cognate provisions of the New York Constitution;
(b) Defendant’s rights under the double jeopardy clauses of the Fifth Amendment of
the United States Constitution and Article I, Section 6 of the New York State
Constitution;
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(c) Defendant’s rights to protection from “excessive fines” as provided in the
Constitutions of the United States and the State of New York.
Thirty-Seventh Defense
The law of New York and the Due Process Clause of the Fourteenth Amendment and the
Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant
simply for lawfully selling a legal product.
Thirty-Eighth Defense
Punitive damages are inappropriate to serve deterrence and punishment objectives because
those will be fully served by past and future liability for the same conduct at issue in this case.
Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish
Defendant, except to the extent the alleged conduct has had an impact in this State.
Thirty-Ninth Defense
All defenses which have been or will be asserted by other defendants and/or third-party
defendants in this action are adopted and incorporated herein by reference as if fully set forth at
length as defenses to Plaintiffs’ Complaint. In addition, Defendant will rely upon any and all other
further defenses which become available or appear during discovery proceedings in this action and
hereby specifically reserves the right to amend its Answer for purposes of asserting further
additional defenses.
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Dated: August 15, 2019
Respectfully submitted,
ITT LLC
By: Ê 'A , Aa A /
Beth L. Hughes
One of the attorneys for ITT LLC
Beth L. Hughes
Brady S. Edwards
Morgan Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178-0060
Phone: (212) 309-6000
Fax: (212) 309-6001
beth.hughes@morganlewis.com
To: Belluck & Fox LLP
546 Fifth Avenue, 4th Floor
New York, NY 10036
Attorneys for Plaintiffs
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
BETH L. HUGHES, an attorney duly admitted to practice law before the Courts of the
State of New York, deposes and says that I am an attorney for ITT LLC, with an office located at
101 Park Avenue, New York, New York, that I have read the foregoing Answer and Affirmative
Plaintiffs'
Defenses to Complaint on Behalf of Defendant ITT LLC and know the contents thereof,
that the same is true upon information and belief and I believe itto be true, that the grounds of my
belief are public records, records and documents currently in my possession pertaining to this
matter, and conversations with client's agents, and that the reason why this verification is made by
me and not by said defendant is that said defendant is a foreign corporation which has no offices
located in New York County where I maintain an office.
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
Dated: August 15, 2019
New York, New York
Beth L. Hughes
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------ --- -----------------------x
Index No. 190153/2019
This Document Relates To:
PANTELIS KAMMAS and KLEO KAMMAS
Plaintiffs,
AFFIRMATION OF SERVICE
vs.
A.O. SMITH WATER PRODUCTS, et al.,
Defendants.
-----------____-__-________------- ¬--------------------X
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
BETH HUGHES, an attorney of the State of New York, hereby affirms under the penalty
of perjury as follows:
1. I am an attorney at the law firm of Morgan, Lewis, & Bockius, attorneys for
Defendant ITT LLC in the above-captioned matter.
2. On thisdate, I caused to be served via electronic mail, the attached Answer and
Plaintiffs'
Affirmative Defenses to Complaint on behalf of Defendant ITT LLC on:
Joseph W. Belluck, Esq.
Belluck & Fox, LLP
546 Fifth Avenue, 4th Floor
New York, New York 10036
All Defense Counsel of Record (via electronic mail)
Dated: August 15, 2019
New York, New York
Beth L. Hughes
-2-
18 of 18
Preview
FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------x Index No. 190153/2019 This Document Relates To: PANTELIS KAMMAS and KLEO KAMMAS, Plaintiffs, VERIFIED ANSWER vs. A.O. SMITH WATER PRODUCTS, et al., Defendants. --------------------------------------------------------------x ANSWER TO PLAINTIFFS’ ASBESTOS COMPLAINT AND AFFIRMATIVE DEFENSES, OF DEFENDANT ITT LLC Defendant ITT LLC and Bell & Gossett Company, now known as ITT LLC (hereinafter referred to as “ITT”), as its Answer to Plaintiffs’ Asbestos Complaint (hereinafter referred to as “Complaint”) and Affirmative Defenses, states as follows: 1–3. ITT is without knowledge or information to form a belief as to the truth of the allegations set forth in Paragraphs 1 through 3. 4–5. To the extent that the allegations in Paragraphs 4 and 5 are directed against ITT, ITT denies the allegations. Answering further, the allegation that ITT has conducted and/or transacted business in New York is a question of law to be adjudicated by this Court. To the extent that Paragraphs 4 and 5 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 6–29. Paragraphs 6 through 29 make no allegation against ITT and therefore ITT makes no answer thereto. -1- 1 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 30. To the extent that Paragraph 30 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 30. Answering further, the allegation that ITT has conducted and/or transacted business in New York is a question of law to be adjudicated by this Court. To the extent that Paragraph 30 contains allegations against entities other than ITT, ITT is without knowledge or information to form a belief as to the truth of the allegations set forth against those entities. 31–56. Paragraphs 31 through 56 make no allegation against ITT and therefore ITT makes no answer thereto. 57–64. To the extent that the allegations in Paragraphs 57 through 64 are directed against ITT, ITT denies the allegations. To the extent that Paragraphs 57 through 64 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FIRST CAUSE OF ACTION 65. ITT repeats each and every answer contained in Paragraphs 1 through 64 of this Answer herein with the same force and effect is as if fully set forth herein. 66–73. To the extent that Paragraphs 66 through 73, including subparagraphs (a)–(m) of Paragraph 70, contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 66 through 73, including subparagraphs (a)–(m) of Paragraph 70. To the extent that Paragraphs 66 through 73, including subparagraphs (a)–(m) of Paragraph 70, contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A SECOND CAUSE OF ACTION 74. ITT repeats each and every answer contained in Paragraphs 1 through 73 of this Answer herein with the same force and effect is as if fully set forth herein. -2- 2 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 75–78. To the extent that Paragraphs 75 through 78 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 75 through 78. To the extent that Paragraphs 75 through 78 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A THIRD CAUSE OF ACTION 79. ITT repeats each and every answer contained in Paragraphs 1 through 78 of this Answer herein with the same force and effect is as if fully set forth herein. 80–88. To the extent that Paragraphs 80 through 88 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 80 through 88. To the extent that Paragraphs 80 through 88 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FOURTH CAUSE OF ACTION 89. ITT repeats each and every answer contained in Paragraphs 1 through 88 of this Answer herein with the same force and effect is as if fully set forth herein. 90–91. To the extent that Paragraphs 90 and 91 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 90 and 91. To the extent that Paragraphs 90 and 91 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 92. The allegations in Paragraph 92 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 92 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 92. To the extent that Paragraph 92 contains allegations against -3- 3 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 93–98. To the extent that Paragraphs 93 through 98 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 93 through 98. To the extent that Paragraphs 93 through 98 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 99. The applications of the New York Labor Law and the New York Industrial Code 12NYR are questions of law to be determined by this Court; therefore ITT denies the allegations set forth in Paragraph 99 and subparagraphs (a)–(f) of the Complaint. 100–105. To the extent that Paragraphs 100 through 105 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 100 through 105. To the extent that Paragraphs 100 through 105 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 106. The allegations in Paragraph 106 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 106 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 106. To the extent that Paragraph 106 contains allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 107. The application of the New York State Industrial Code 23 1.7 (g) and its predecessor is a question of law to be determined by this Court; therefore ITT denies the allegations set forth in Paragraph 107 of the Complaint. -4- 4 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 AS AND FOR A FIFTH CAUSE OF ACTION 108. ITT repeats each and every answer contained in Paragraphs 1 through 107 of this Answer herein with the same force and effect is as if fully set forth herein. 109–115. To the extent that Paragraphs 109 through 115 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 109 through 115. To the extent that Paragraphs 109 through 115 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A SIXTH CAUSE OF ACTION 116. ITT repeats each and every answer contained in Paragraphs 1 through 115 of this Answer herein with the same force and effect is as if fully set forth herein. 117–125. To the extent that Paragraphs 117 through 125, including subparagraphs (i)– (iii) of Paragraph 124, contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 117 through 125, including subparagraphs (i)–(iii) of Paragraph 124. To the extent that Paragraphs 117 through 125, including subparagraphs (i)–(iii) of Paragraph 124, contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 126. ITT denies the allegations in Paragraph 126. 127–131. To the extent that Paragraphs 127 through 131 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 127 through 131. To the extent that Paragraphs 127 through 131 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. -5- 5 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 AS AND FOR A SEVENTH CAUSE OF ACTION 132. ITT repeats each and every answer contained in Paragraphs 1 through 131 of this Answer herein with the same force and effect is as if fully set forth herein. 133–141. To the extent that Paragraphs 133 through 141 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 133 through 141. To the extent that Paragraphs 133 through 141 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 142. The applications of the New York Labor Law and the New York Industrial Code 12NYR are questions of law to be determined by this Court; therefore ITT denies the allegations set forth in Paragraph 142. 143. To the extent that Paragraph 143 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 143. To the extent that Paragraph 143 contains allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 144. The applications of the New York Labor Law and the New York Industrial Code 12NYR are questions of law to be determined by this Court; therefore ITT denies the allegations set forth in Paragraph 144. 145. To the extent that Paragraph 145 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 145. To the extent that Paragraph 145 contains allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. -6- 6 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 AS AND FOR AN EIGHTH CAUSE OF ACTION 146. ITT repeats each and every answer contained in Paragraphs 1 through 145 of this Answer herein with the same force and effect is as if fully set forth herein. 147–160. To the extent that Paragraphs 147 through 160 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 147 through 160. To the extent that Paragraphs 147 through 160 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. 161. The substantive law governing this case is a question of law to be determined by this Court; therefore ITT makes no answer thereto. AS AND FOR A NINTH CAUSE OF ACTION 162. ITT repeats each and every answer contained in Paragraphs 1 through 161 of this Answer herein with the same force and effect is as if fully set forth herein. 163–174. To the extent that Paragraphs 163 through 174 contain allegations against ITT, ITT denies the allegations set forth in Paragraphs 163 through 174. To the extent that Paragraphs 163 through 174 contain allegations against entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. Further, the application of NY Civ. Prac. L. Art. 16 §§1601–1602 and the workers’ compensation law are questions of law to be determined by this Court. AS AND FOR A TENTH CAUSE OF ACTION 175. ITT repeats each and every answer contained in Paragraphs 1 through 174 of this Answer herein with the same force and effect is as if fully set forth herein. 176. To the extent that Paragraph 176 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 176. To the extent that Paragraph 176 contains allegations against -7- 7 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR AN ELEVENTH CAUSE OF ACTION 177. ITT repeats each and every answer contained in Paragraphs 1 through 176 of this Answer herein with the same force and effect is as if fully set forth herein. 178. Paragraph 178 makes no allegation against ITT and therefore ITT makes no answer thereto. 179. To the extent that Paragraph 179 contains allegations against ITT, ITT denies the allegations set forth in Paragraph 179. To the extent that Paragraph 179 contains allegations against entities other than ITT, ITT is without knowledge or information sufficient form a belief as to the truth of the allegations set forth against those entities. WHEREFORE, Defendant ITT LLC denies that Plaintiffs are entitled to compensatory and punitive damages and further requests that Plaintiffs’ claims be dismissed with prejudice and any other relief this Honorable Court deems just. AFFIRMATIVE DEFENSES First Defense Plaintiffs’ Complaint fails to state a claim upon which relief may be granted. Second Defense Plaintiffs’ Complaint is barred by the applicable statute of repose or statute of limitations. Third Defense Any claim or cause of action Plaintiffs may have is barred, in whole or in part, by the doctrines of laches, waiver, collateral estoppel, and/or res judicata. Fourth Defense Plaintiffs failed to plead the claims of fraud and conspiracy with proper specificity and, as -8- 8 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 such, all claims premised on fraud and/or conspiracy must be dismissed. Fifth Defense The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workers’ Compensation statutes and shall have constituted an industrial disability and Plaintiffs’ exclusive remedy, if any, shall lie within the terms and ambit of said statute. Sixth Defense Plaintiffs’ claims and causes of action against Defendant are barred, in whole or in part, because Defendant owed no legal duty to Plaintiffs or, if it owed such a legal duty, it did not breach such duty. Seventh Defense The injuries allegedly sustained by Plaintiffs, if any, were proximately caused by Plaintiffs’ free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and thus assuming the risks ordinary incident to such acts. Eighth Defense The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of the risks, hazards, and dangers incident to the occupation of Plaintiff Pantelis Kammas all of which were open, obvious and well known to Plaintiff, and the action is barred by Plaintiff’s assumption of the risks thereof. Ninth Defense This action is barred, in whole or in part, by the misuse, abuse, or substantial modification of the product. Tenth Defense The negligent acts or omissions of Plaintiffs were the sole proximate cause or proximate -9- 9 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 contributing cause of the injuries and damages of which Plaintiffs’ complains. Eleventh Defense Plaintiff Pantelis Kammas contributed to his illness, either in whole or in part, by the use of other substances, products, medications and drugs. To the extent that Plaintiff Pantelis Kammas used any tobacco products, any damages awarded should be reduced in whole or in part by the amount of his damages caused by smoking. Twelfth Defense That the injuries and/or illnesses, if any, sustained by Plaintiffs were caused or contributed to by the fault, neglect, and want of care on the part of Plaintiffs or of others for whose acts or omissions or breach of legal duty Defendant is not liable. Thirteenth Defense Plaintiffs’ alleged damages were negligently caused in whole or in part by persons, firms, corporations, or entities other than those parties before this Court and such negligence either bars or comparatively reduces any possible recovery by Plaintiffs. Fourteenth Defense Insofar as the Complaint alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiff bear to the culpable conduct which caused the damages. Fifteenth Defense If Plaintiffs suffered damages as a result of the allegations set forth in the Complaint, then those damages were the result of intervening or superseding acts or omissions of persons other - 10 - 10 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 than the Defendant. Sixteenth Defense If Plaintiffs suffered injuries as a proximate result of a condition of Defendant’s products, any of Defendant’s products would have been supplied to an employer of Plaintiff. Such employer was a knowledgeable and sophisticated user of said products, and thus Defendant had no further legal duty to warn or instruct Plaintiff. Seventeenth Defense If any of the allegations of Plaintiff with respect to the defective condition of asbestos or asbestos products are proven, then Plaintiff is barred from any recovery due to the fact that at all relevant times there was no known substitute for asbestos or asbestos products. Eighteenth Defense The state of the medical and scientific knowledge at all relevant times was such that Defendant neither knew nor could have known that its asbestos-containing products presented a foreseeable risk of harm to any person in the normal and expected use of those products. Nineteenth Defense To the extent that Defendant conformed to the scientific knowledge and research data available throughout the industry and scientific community, Defendant shall have fulfilled its obligations, if any, herein, and Plaintiffs’ claims shall be barred, in whole or in part. Twentieth Defense If Plaintiff sustained injuries as a result of exposure to any product manufactured by Defendant, the degree of such damage attributable to Defendant’s product is negligible, and hence, de minimis. - 11 - 11 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 Twenty-First Defense Defendant cannot be held jointly and severally liable for acts or omissions of other defendants because the acts and omissions of those other defendants were separate and distinct and the alleged harm caused by each defendant is divisible. Twenty-Second Defense Defendant is not liable for any damages alleged to have resulted from exposure to any of its products which were manufactured pursuant to Government specifications. Twenty-Third Defense Insofar as Plaintiff relies upon allegations of negligence, breaches of warranties, fraudulent representations, and violations of obligations of strict product liability as against Defendant prior to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of action by reason of the failure to allege the freedom of Plaintiff from contributory negligence or fault; and that if Plaintiff sustained the injuries, losses, and other damages complained of in the Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumption of risk, fault or other culpable conduct of Plaintiff. Twenty-Fourth Defense To the extent that Plaintiff alleges rights assertedly derived from oral warranties or undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds. Twenty-Fifth Defense To the extent Plaintiff alleges a cause of action for express and/or implied warranties and the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between Plaintiff and Defendant. - 12 - 12 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 Twenty-Sixth Defense To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and prompt notice of any such breach to Defendant. Twenty-Seventh Defense Plaintiff did not directly or indirectly purchase any asbestos-containing products or materials from Defendant, and Plaintiff neither received nor relied upon any representation or warranty allegedly made by Defendant. Twenty-Eighth Defense The action cannot proceed in the absence of all parties who should be named in accordance with New York CPLR § 1001. Twenty-Ninth Defense The recoverable damages, if any, should be diminished under the collateral source rule set forth in New York CPLR § 4545. Thirtieth Defense To the extent that Plaintiff may recover damages from Defendant, Defendant is entitled to indemnification and/or contribution, in whole or in part, from each of the other defendants in this action. Thirty-First Defense If Defendant is ultimately found to be liable to Plaintiff, then, pursuant to New York CPLR Article 16, it shall only be liable for its equitable share of Plaintiffs’ recovery since any liability which will be found against it will be insufficient to impose joint liability. Thirty-Second Defense Pursuant to New York CPLR Article 16, the liability, if any, of Defendant for non- - 13 - 13 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 economic loss shall not exceed its equitable share of liability. Thirty-Third Defense To the extent Plaintiffs seek to hold Defendant liable retroactively for conduct that was not actionable at the time it occurred, Plaintiffs’ claims violate Defendant’s right to be free from ex post facto laws and Defendant’s procedural and substantive due process rights under the Constitution of the United States. Thirty-Fourth Defense Any claim for exemplary and/or punitive damages is barred because such damages are not recoverable or warranted in this action. Thirty-Fifth Defense The imposition of punitive damages on the facts alleged in the Complaint is barred by the United States Constitution and the Constitution of the State of New York. Thirty-Sixth Defense Plaintiffs’ claim for punitive damages cannot be sustained because it would violate Defendant’s rights under the Constitutions of the United States and the State of New York, including, but not limited to: (a) Defendant’s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments of the United States Constitution and under cognate provisions of the New York Constitution; (b) Defendant’s rights under the double jeopardy clauses of the Fifth Amendment of the United States Constitution and Article I, Section 6 of the New York State Constitution; - 14 - 14 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 (c) Defendant’s rights to protection from “excessive fines” as provided in the Constitutions of the United States and the State of New York. Thirty-Seventh Defense The law of New York and the Due Process Clause of the Fourteenth Amendment and the Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant simply for lawfully selling a legal product. Thirty-Eighth Defense Punitive damages are inappropriate to serve deterrence and punishment objectives because those will be fully served by past and future liability for the same conduct at issue in this case. Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish Defendant, except to the extent the alleged conduct has had an impact in this State. Thirty-Ninth Defense All defenses which have been or will be asserted by other defendants and/or third-party defendants in this action are adopted and incorporated herein by reference as if fully set forth at length as defenses to Plaintiffs’ Complaint. In addition, Defendant will rely upon any and all other further defenses which become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend its Answer for purposes of asserting further additional defenses. - 15 - 15 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 Dated: August 15, 2019 Respectfully submitted, ITT LLC By: Ê 'A , Aa A / Beth L. Hughes One of the attorneys for ITT LLC Beth L. Hughes Brady S. Edwards Morgan Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Phone: (212) 309-6000 Fax: (212) 309-6001 beth.hughes@morganlewis.com To: Belluck & Fox LLP 546 Fifth Avenue, 4th Floor New York, NY 10036 Attorneys for Plaintiffs - 16 - 16 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) BETH L. HUGHES, an attorney duly admitted to practice law before the Courts of the State of New York, deposes and says that I am an attorney for ITT LLC, with an office located at 101 Park Avenue, New York, New York, that I have read the foregoing Answer and Affirmative Plaintiffs' Defenses to Complaint on Behalf of Defendant ITT LLC and know the contents thereof, that the same is true upon information and belief and I believe itto be true, that the grounds of my belief are public records, records and documents currently in my possession pertaining to this matter, and conversations with client's agents, and that the reason why this verification is made by me and not by said defendant is that said defendant is a foreign corporation which has no offices located in New York County where I maintain an office. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: August 15, 2019 New York, New York Beth L. Hughes -1- 17 of 18 FILED: NEW YORK COUNTY CLERK 08/15/2019 10:13 AM INDEX NO. 190153/2019 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/15/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------ --- -----------------------x Index No. 190153/2019 This Document Relates To: PANTELIS KAMMAS and KLEO KAMMAS Plaintiffs, AFFIRMATION OF SERVICE vs. A.O. SMITH WATER PRODUCTS, et al., Defendants. -----------____-__-________------- ¬--------------------X STATE OF NEW YORK ) ss: COUNTY OF NEW YORK ) BETH HUGHES, an attorney of the State of New York, hereby affirms under the penalty of perjury as follows: 1. I am an attorney at the law firm of Morgan, Lewis, & Bockius, attorneys for Defendant ITT LLC in the above-captioned matter. 2. On thisdate, I caused to be served via electronic mail, the attached Answer and Plaintiffs' Affirmative Defenses to Complaint on behalf of Defendant ITT LLC on: Joseph W. Belluck, Esq. Belluck & Fox, LLP 546 Fifth Avenue, 4th Floor New York, New York 10036 All Defense Counsel of Record (via electronic mail) Dated: August 15, 2019 New York, New York Beth L. Hughes -2- 18 of 18