Answer: Basil J. Latorre CAROL LATORRE, as Administratrix for the Estate of BASIL J. LATORRE, and CAROL LATORRE, Individually, v. A.O. Smith Water Products Co.,, Air & Liquid Systems Corporation,, Amchem Products, Inc.,, Aurora Pump Company, Azrock Industries,, Bell & Gossett Company, Bryant Heating & Cooling Systems, Burnham, Llc,, Carrier Corporation,, Cbs Corporation, F/K/A Viacom Inc.,, Certainteed Corporation, Cleaver Brooks Company, Inc, Crane Co.,, Flowserve Us, Inc., Fmc Corporation,, Gardner Denver, Inc, General Electric Company, Georgia Pacific Llc, Goodyear Canada, Inc, Goulds Pumps, Inc.,, Grinnell Llc,, Imo Industries, Inc, Itt Industries, Inc.,, Kaiser Gypsum Company, Inc, Kennedy Valve Manufacturing Co., Inc.,, Lennox Industries, Inc, Oakfabco, Inc.,, Owens-Illinois, Inc, Peerless Industries, Inc, Pfizer, Inc. (Pfizer),, The Fairbanks Company, The Goodyear Tire And Rubber Company, U.S. Rubber Company (Uniroyal),, Union Carbide Corporation, Utica Boilers, Inc.,, Viking Pump, Inc.,, Weil-Mclain, A Division Of The Marley-Wylain Company,, Armstrong Pumps, Inc., Hammond Valve Company, Jenkings Bros., New Yorker Boiler Company, Inc., Red White Valve Corp., Spence Engineering Company, Inc. Individually and as a division of CIRCOR INTERNATIONAL INC., Taco, Inc., Warren Pumps, Llc

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                                INDEX   NO.   190004/2014
FILED:      NEW          YORK    COUNTY        CLERK    1270372014           02:35     PM
NYSCEF   DOC.      NO.   58                                                                    RECEIVED   NYSCEF      12/03/2014


                SUPREME COURT OF THE STATE OF NEW YORK
                COUNTY OF NEW YORK.
                                                                               X

                CAROL LATORRE, as Administratrix for the Estate of BASIL J.
                LATORRE and CAROL LATORRE, Individually,


                                                                                      Index No.: 190004/14
                                                               Plaintiffs,


                                          - against -                                 VERIFIED ANSWER
                                                                                      TO PLAINTIFF’S
                                                                                      SUPPLEMENTAL
                                                                                      SUMMONS AND AMENDED
                                                                                      VERIFIED COMPLAINT

                A.O. SMITH WATER PRODUCTS CO., et al,

                                                               Defendants,

                                                                               xX

                                 Defendant, JENKINS BROS., by its attorneys McGivney & Kluger, P.C. answering

                the Plaintiff's Supplemental      Summons     and Amended    Verified Complaint   upon information and

                belief, alleges as follows:


                         1       Defendant, JENKINS     BROS. denies the allegations of Paragraph “1” and leaves

                Plaintiff's to their proofs.

                         2       Defendant, JENKINS         BROS.   denies any knowledge    or information sufficient to

                form a belief as to the truth of the allegations contained in Paragraph “2” through “18” as it pertains

            to the remaining defendants in this Complaint.

                         3       Defendant, JENKINS     BROS. denies the allegation contained in Paragraph “19” of

            the Plaintiff's Verified Complaint and leaves Plaintiffs’ to their proofs.




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4.       Defendant, JENKINS       BROS.       denies any knowledge or information sufficient to

form a belief as to the truth of the allegations contained in Paragraph “20” through “30” as it pertains

to the remaining defendants in this Complaint.

                  Defendant, JENKINS BROS. repeats, reiterates and realleges each and every answer

and affirmative defense set forth in Defendant’s Answer to NYAL-Weitz                & Luxenberg,    P.C.

Standard Asbestos Complaint for Wrongful Death No. 7.

                                                   *    *    *


                               FIRST SEPARATE AFFIRMATIVE DEFENSE

                  Defendant denies that the Plaintiff is entitled to the damages claimed or to the relief

demanded.

                              SECOND SEPARATE AFFIRMATIVE DEFENSE

                  Each and every Count of Plaintiff's Complaint fails to state a claim upon which relief

can be granted.

                               THIRD SEPARATE AFFIRMATIVE DEFENSE

                  There is an insufficiency of service of process upon this Defendant.

                              FOURTH SEPARATE AFFIRMATIVE DEFENSE

                  This Court lacks subject matter jurisdiction over each and every count contained in

Plaintiff's Complaint.

                               FIFTH SEPARATE AFFIRMATIVE DEFENSE

                  This Court lacks personal jurisdiction over the Defendant with respect to each and

every Count contained in Plaintiff's Complaint.

                            SIXTH SEPARATE AFFIRMATIVE DEFENSE

                  This Court lacks venue over the defendant with respect to each and every Count

contained in Plaintiff's Complaint.


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SEVENTH SEPARATE AFFIRMATIVE DEFENSE

                This Court is considered a forum non conveniens the Defendant with respect to each

and every Count contained in Plaintiff's Complaint.

                            EIGHTH SEPARATE AFFIRMATIVE DEFENSE

                The causes of action alleged in Plaintiff's Complaint are barred by the applicable

Statue of Limitations.

                             NINTH SEPARATE AFFIRMATIVE DEFENSE

                The Plaintiff has failed to join a party or parties necessary for a just adjudication of

this matter and have further omitted to state any reasons for such failure.

                             TENTH SEPARATE AFFIRMATIVE DEFENSE

               The claims presented by Plaintiff's Complaint are barred by the contributing fault of

Plaintiff's which fault is greater than that of each Defendant or all of the Defendants.

                          ELEVENTH SEPARATE AFFIRMATIVE DEFENSE

               Any injuries or damages suffered by the Plaintiff were caused by the negligence of

the Plaintiff and any recovery therefore is barred.

                           TWELFTH       SEPARATE AFFIRMATIVE DEFENSE

               Any injuries or damages suffered by the Plaintiff were caused by the negligence of

the Plaintiff or Plaintiff's and any recovery therefore must be proportionately diminished.




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THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE

                  Any negligence on the part of Defendant was superseded by the new and independent

conduct, including negligence of Plaintiff's employer and/or other third parties, who owed a duty to

Plaintiff and over whom         Defendant had no control and which conduct Defendant could neither

anticipate nor reasonably        foresee and   which   superseding conduct   was not a consequence       of

defendant’s alleged negligence but which was the efficient cause of the injuries allegedly sustained

by Plaintiff.

                         FOURTEENTH            SEPARATE AFFIRMATIVE DEFENSE

                The injuries complained        of by the Plaintiff are wholly or partially caused       by

independent means, including, inter alia, the conduct and habits of Plaintiff and exposure to other

particulates in the environment.

                           FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE

                Plaintiff was a habitual smoker, and such smoking caused any lung disease from

which the Plaintiff suffered.

                          SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE

                The Defendant had no duty to give instructions to Plaintiff or to warn Plaintiff of any

hazards attendant to the contract with, use of, or exposure to its products containing asbestos,

whether known      or constructively known      by Defendant,   because those hazards were known        by

plaintiff and/or other persons who controlled or supervised Plaintiff in the course of or incidental to

his employment.

                        SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE

                The Plaintiff's claims, to the extent that they include a prayer for equitable relief, are

barred on account of /aches in that Plaintiff failed or neglected to maintain this action in a swift,

diligent and timely fashion, all to the detriment of Defendant.


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EIGHTEENTH          SEPARATE AFFIRMATIVE DEFENSE

               There was no privity of contract between Defendant and Plaintiff, so Plaintiff may not

recover upon any alleged breach of any express or implied warranty.

                        NINETEENTH          SEPARATE AFFIRMATIVE DEFENSE

               Plaintiff's claims if based upon the allegations of express or implied warranty are

barred because no sale of goods occurred.

                           TWENTIETH     SEPARATE AFFIRMATIVE             DEFENSE

               Defendant    cannot be held liable under principles of strict tort liability because

products manufactured      and/or products which   left Defendant’s possession did so prior to the

enactment of New York law regarding strict liability.

                      TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE

               At all times and places mentioned in the Complaint, the Plaintiff and/or other persons

used this defendant’s products, if indeed any were used, in an unreasonable manner, not reasonably

foreseeable to this Defendant, and for a purpose for which          the products   were not intended,

manufactured, or designed; Plaintiff's injuries and damages, if any, were directly and proximately

caused by said misuse and abuse, and Plaintiff's recovery herein, if any is barred or must be

diminished in proportion to the fault attributable to the Plaintiff and/or such other parties and

persons.

                     TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE

               An action for breach of warranty was not available to Plaintiff during the period of

the allegedly injurious exposure to, use of, or contact with products allegedly manufactured       by

Defendant.
-
                      TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE

               No warranty of any kind was extended to Plaintiff in this matter.


{NO359228-1}
TWENTY-FOURTH             SEPARATE AFFIRMATIVE DEFENSE

                  If the Defendant,    its servants or agents made         any express warranties (allegations

  which the Defendant specifically denies) then the Plaintiff did not rely on the express warranties and,

  further, there was no such reliance by any person or entity authorized to represent the Plaintiff.

                          TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE

                  If Defendant or its agents or servants made any warranties express or implied

  (allegations which the Defendant specifically denies) then the Defendant denies that it breached any

  of the warranties.

                          TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE

                  If Defendant were liable, negligent or in breach of warranty, all of which it expressly

  denies, the Defendant’s liability in any or all of those events has been terminated by the intervening

  acts, omissions or negligence of others over whom this Defendant had neither control, nor the right

  of control and for whose conduct the Defendant is not legally responsible.

                        TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE

                  Defendant   denies   that   there   was   any   defect   or negligent   mining,   processing,

 manufacture, designed, testing, investigation, fashioning, packaging, distributing, delivery, and/or

 sale, in any asbestos product or material referred to in the Plaintiff's Complaint, but if there was any

 defect or negligence as alleged, then the Defendant is not liable as it justifiably relied upon

 inspection by others in the regular course of trade and business.

                        TWENTY-EIGHTH            SEPARATE AFFIRMATIVE DEFENSE

                  The   utility of the products       manufactured    by Defendant     outweighs    the danger

allegedly involved and, therefore, Plaintiff's claim is barred as a matter of public policy.

                         TWENTY-NINTH           SEPARATE AFFIRMATIVE DEFENSE

                 Plaintiff's employer or employees were negligent with respect to the matters set forth


 {NO359228-1}
in the Complaint, and such negligence caused in whole or in part whatever disease, injury or

disability, if any, which Plaintiff may have sustained, as set forth in the Complaint.                       Therefore, even

is Plaintiff is entitled to recover against Defendant, which Defendant specifically denies, he is not

entitled to recover in the amount set forth in the Complaint because Defendant is entitled to set off

any and all workers compensation payments                     against any judgment which             might be rendered in

Plaintiff's favor.

                                 THIRTIETH SEPARATE AFFIRMATIVE DEFENSE

                       If Plaintiff establishes any exposure to Defendant’s products, said exposure would

have been so minimal as to be insufficient to establish to a reasonable degree of probability that its

product caused Plaintiff's claimed injuries.

                               THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSE

                       The Plaintiff has released, settled, entered into an accord and satisfaction or otherwise

     compromised his claims herein, and accordingly, said claims are barred by operations of law.

                                 THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE

                       Defendant expressly denies that it manufactured, designed, and/or sold any products

referred to in Plaintiff's Complaint which caused injury to Plaintiff.                    Notwithstanding, at all times

and places mentioned in the Complaint, Plaintiff's and/or other persons without this Defendant’s

knowledge and approval redesigned, modified, altered, and used this defendant’s products contrary

to instruction and contrary to the custom and practice of the industry. This redesign, modification,

alteration, and use so substantially changed the product’s characier that if there was a defect in the

product,       which     Defendant   specifically   denies,    such   defect   resulted     solely    from    the   redesign,

modification, alteration, or other such treatment or change and not from any act or omission by this

Defendant.       Therefore, said defect, if any, was created by Plaintiff and/or other persons, as the case

may be, and was the direct and proximate cause of the injuries and damages, if any, that Plaintiff


{N0359228-1}
allegedly suffered.

                          THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE

                  Plaintiff is not entitled to punitive, exemplary or enhanced damages for the following

reasons:


           (a)    Plaintiff's claim for punitive damages is barred by the Due Process clause of the

Fourteenth Amendment to the United States Constitution.

           (b)    Plaintiff's claim for punitive damages is barred by the proscription of the Eighth

Amendment to the United States Constitution, as supplied to the States through the Fourteenth

Amendment, prohibiting the imposition of excessive fines.

           ()     Plaintiff's claim for punitive damages is barred by the “double jeopardy” clause of

the Fifth Amendment        to the United States Constitution, as applied to the States through the

Fourteenth Amendment.

                        THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE

           Punitive damages cannot be awarded against this Defendant for any of the alleged actions or

omissions of any of these Defendant’s predecessors because there is not a sufficient degree of

identity between this Defendant and any of its predecessors to justify such an award.

                         THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE

         At all times and places mentioned in the Complaint, the Plaintiff failed to make reasonable

efforts to mitigate his injuries and damages, if any.

                         THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE

                  There was no negligence, gross negligence, willful, wanton or malicious misconduct,

reckless indifference or reckless disregard of the rights of the Plaintiff, or malice (actual, legal or

otherwise) on the part of this Defendant as to the Plaintiff of the Plaintiff herein.




{N0359228-1}
THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE

                 The Plaintiff has waived any and all claims which he seeks to assert in this action and

is estopped both to assert and to recover upon such claims.

                         THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE

                 The Defendant states that if it supplied any asbestos product, either directly or

indirectly, to the Plaintiff's employer, this product was supplied in accordance with specifications

established and promulgated by that employer, agencies or departments of the United States of

America, other persons and/or entities.

                          THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE

                 The Defendant states that any asbestos containing products manufactured or sold by

the Defendant which give rise to Plaintiffs claims herein were designed and manufactured pursuant

to and in accordance with specifications mandated by the United States Government or its agencies.

The knowledge of the United States Government and its agencies of any possible health hazards

from use of such products were equal or superior to that of the Defendant and by reason thereof, the

Defendant is entitled to such immunity from liability as exists in favor of the United States

Government or its agencies.

                           FORTIETH SEPARATE AFFIRMATIVE DEFENSE

                 If the Plaintiff is unable to identify the manufacturer or manufacturers of the products

which allegedly caused injury, the causes of action asserted by the Plaintiff fail to state a claim upon

which relief can be granted, for, if relief be granted, such relief would constitute a taking of this

defendant’s property for a public use without just compensation, a violation of this Defendant’s

constitutional rights.




{NO359228-1}
FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE

                 If the Plaintiff is unable to identify the manufacturer or manufacturers of the products

which allegedly caused the injury, the causes of action asserted by the Plaintiff fail to state a claim

upon which relief can be granted because such relief would constitute a denial by this Court of

Defendant’s constitutional right of equal protection under the law.

                          FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE

                 This Defendant alleges that any sales of asbestos-containing products made by it were

made to sophisticated users of such products, and that sale to a sophisticated user of the products

bars any claim of liability against this Defendant.


                          FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE

                 If the Plaintiff is barred from recovery, the action of his wife is also barred because it

is a derivative action.

                          FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE

                Defendant    avails   itself of, and   adopts   such   other defenses   raised   by   any   other

defendants as may be applicable.

                          FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE

                This Defendant reserves the right to assert any and/or all applicable affirmative

defense which discovery may reveal appropriate.

                              CROSS-CLAIM FOR CONTRIBUTION

                Defendant, JENKINS BROS. hereby makes claim for contribution against each and

every Defendant in this action.




{N0359228-1}
CROSS-CLAIM FOR INDEMNIFICATION

               While denying liability to Plaintiff's as well as the damages and injuries alleged, if

this Defendant is found liable to the Plaintiff's for damages by reason of the alleged acts complained

of, this Defendant’s alleged negligence was merely constructive, technical and passive or vicarious

and plaintiff(s) damages and injuries arose with direct and primary negligence, strict liability, breach

of contract and implied warranties of the said Co-Defendants listed in this action.

                              ANSWERS TO ALL CROSS-CLAIMS

               This defendant answers all cross-claims of Co-Defendant’s, saying:

                1      All cross-claims for contribution alleged are denied.
               2.      All cross-claims for indemnification alleged are denied.


               WHEREFORE,         Defendant    JENKINS      BROS.    requests judgment     in its favor

dismissing Plaintiff's Verified Complaint against it together with the costs and disbursements of this

action and for any expenses incurred in the defense thereof, including this Defendant’s attorney’s

fees.




{NO359228-1}
FURTHERMORE,            Defendant    JENKINS       BROS.      demands   judgment   over and

against co-Defendants on its cross-claim for the amount of any judgment or verdict which may be

obtained herein by the Plaintiffs against this Defendant, together with costs and disbursements of

this action, plus any and all attorney’s fees, costs of investigation and disbursements.

Dated: NEW YORK, NEW YORK
                               2014

                                                 Yours, etc.

                                                 McGIVNEY & KLUGER, P.C.
                                                 Attorneys for,    fendant
                                                 J KINSB          8.7 4
                                                                    Z
                                           By:
                                                      RA B. HO!            IAN, ESQ
                                                  0 Broad Street,         Floor
                                                 New York, N            ork 10004
                                                 212.509.3456
                                                 (2979-0023)




TO:      WEITZ & LUXENBERG, P.C.
         700 Broadway
         New York, New York 10003
         212.558.5500




{N0359228-1}
ATTORNEY’S       VERIFICATION


STATE OF NEW YORK            )
                             2 SS:
COUNTY OF NEW YORK)


               LAURA    B. HOLLMAN,      ESQ., being duly sworn, deposes and says that I am a

member of the law firm of McGivney & Kluger, P.C., that I have read the foregoing Verified

Answer to Plaintiff's Supplemental and Amended Verified Complaint by JENKINS           BROS.,

and know the contents thereof, and that the same is true to my own knowledge, except as to

matters therein stated to be alleged on information and belief, and that as to those matters, I

believe them to be true. Defendant is a dissolved and liquidated corporation and the sources of

my information are documents and catalogs of the defendant. The reason this verification is

made by deponent and not by defendant is because defendant is a dissolved and liquidated

corporation.

Dated: New York, New York
       3       » 2014
                                                               4+)
                                                       Qs
                                              NN
                                                                                a

                                           LAURA    B. HOLLMAN,      ESS




{N0359228-1}
CERTIFICATE OF SERVICE


                   I HEREBY CERTIFY that on the~3
                                                ~~ day of Vee           2014, a copy of the foregoing

Answer         of JENKINS   BROS.    to Supplemental   Summons   and Amended     Verified   Answer   to

Plaintiff's Verified Complaint was filed electronically this day and is available for viewing from the

Court’s ECF system. Notice of this filing will be sent to all counsel of record via the court’s ECF

system.




                                                                       Wo
                                                             Marilyn Mercado




{N0359228-1}
Index No.: 190004/14
   SUPREME COURT OF THE STATE OF NEW YORK
   COUNTY OF NEW YORK                     X

   CAROL LATORRE, as Administratrix for the Estate of BASIL J. LATORRE and CAROL
   LATORRE, Individually,


                          Plaintiffs,



           - against -




   A.O. SMITH WATER PRODUCTS CO., et al,


                          Defendants,




VERIFIED ANSWER TO PLAINTIFF’S SUPPLEMENTAL                    SUMMONS   AND AMENDED
                                   VERIFIED COMPLAINT




                                    Attorneys for Defendant:

                                        JENKINS BROS.




                                McGIVNEY & KLUGER, P.C
                                   COUNSELORS AT LAW
                                  80 Broad Street, 23" Floor
                                 New York, New York 10004
                                         (212) 509-3456




  {N0359228-1}