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FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In RE NEW YORK CITY
ASBESTOS LITIGATION
This Document Relates to:
New York Asbestos
RAYMOND M. GERAGHTY Litigation (NYCAL)
Plaintiff
Index No. 190149/2018
- against -
VERIFIED ANSWER OF
AIRCO, INC., et al. FIATALLIS
DEFENDANT,
NORTH AMERICA LLC, TO
Defendants
PLAINTIFF'S COMPLAINT
Defendant, FIATALLIS NORTH AMERICA LLC (improperly sued herein as "FIATALLIS
NORTH AMERICA, INC.), ("FIATALLIS") by its attorneys, Goldberg Segalla LLP, as and for its
Complaint"
Answer to Plaintiff's Complaint ("the Complaint") herein alleges as follows:
ANSWERING PLAINTIFF'S COMPLAINT
1. FIATALLIS denies having knowledge or information sufficient to form a belief as
"1" "13"
to the truth of the allegations contained in Paragraphs through of the Complaint as they
pertain to parties other than FIATALLIS, and for this reason, denies these allegations.
"14"
2. FIATALLIS denies the allegations in Paragraph of the Complaint.
3. FIATALLIS denies having knowledge or information sufficient to form a belief as
"15" "22"
to the truth of the allegations in Paragraphs through of the Complaint as they pertain to
parties other than FIATALLIS, and for this reason, denies these allegations.
4. In response to the allegations contained in the unnumbered paragraph at the last
page of the Complaint, FIATALLIS incorporates its responses to the allegations contained in the
NYAL- Weitz & P.C. Standard Asbestos Complaint for Personal No.
Luxenberg, Injury 7,
Complaint"
(hereinafter "Standard Complaint"), set forth below.
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ANSWERING NYCAL- WEITZ & P.C. STANDARD COMPLAINT FOR
LUXENBERG,
PERSONAL INJURY NO. 7
5. FIATALLIS denies having knowledge or information sufficient to form a belief as
"1" "2"
to the truth of the allegations in Paragraphs through of the Standard Complaint.
"3"
6. FIATALLIS denies the allegations in Paragraph of the Complaint, as they
pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to
the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for this
reason, denies those allegations and refers all questions of law to the Court.
7. FIATALLIS denies having knowledge or information sufficient to form a belief as
"4" "157"
to the truth of the allegations in Paragraphs through of the Standard Complaint as relate
to other defendants, and for this reason, denies these allegations.
AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
"158"
8. With respect to paragraph of the Standard Complaint, FIATALLIS repeats,
reiterates and realleges each and every admission or denial heretofore made in response to
"1" "157"
Paragraphs through of the Standard Complaint with the same force and effect as though
fully set forth herein.
"159" "177"
9. FIATALLIS denies the allegations in Paragraph through of the
Standard Complaint, as they pertain to FIATALLIS, and denies knowledge or information
sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties
other than FIATALLIS and for this reason, denies those allegations and refers all questions of law
to the Court.
AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
"178"
10. With respect to paragraph of the Standard Complaint, FIATALLIS repeats,
reiterates and realleges each and every admission or denial heretofore made in response to
2
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"1" "177"
Paragraphs through of the Standard Complaint with the same force and effect as though
fully set forth herein.
"179" "183"
11. FIATALLIS denies the allegations in Paragraph through of the
Standard Complaint, as they pertain to FIATALLIS, and denies knowledge or information
sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties
other than FIATALLIS and for this reason, denies those allegations and refers all questions of law
to the Court.
AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION
"184"
12. With respect to paragraph of the Standard Complaint, FIATALLIS repeats,
reiterates and realleges each and every admission or denial heretofore made in response to
"1" "183"
Paragraphs through of the Standard Complaint with the same force and effect as though
fully set forth herein.
"185" "193"
13. FIATALLIS denies the allegations in Paragraph through of the
Standard Complaint, as they pertain to FIATALLIS, and denies knowledge or information
sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties
other than FIATALLIS and for this reason, denies those allegations and refers all questions of law
to the Court.
AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION
"194"
14. With respect to paragraph of the Standard Complaint, FIATALLIS repeats,
reiterates and realleges each and every admission or denial heretofore made in response to
"1" "193"
Paragraphs through of the Standard Complaint with the same force and effect as though
fully set forth herein.
3
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"195" "204"
15. FIATALLIS denies the allegations in Paragraph through of the
Standard Complaint, including allsubparts, as they pertain to FIATALLIS, and denies knowledge
or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain
to parties other than FIATALLIS and for this reason, denies those allegations and refers all
questions of law to the Court.
AS AND FOR A RESPONSE TO THE FIFTH CAUSE OF ACTION
"205"
16. With respect to paragraph of the Standard Complaint, FIATALLIS repeats,
reiterates and realleges each and every admission or denial heretofore made in response to
"1" "204"
Paragraphs through of the Standard Complaint with the same force and effect as though
fully set forth herein.
"206" "223"
17. FIATALLIS denies the allegations in Paragraph through of the
Standard Complaint, including allsubparts, as they pertain to FIATALLIS, and denies knowledge
or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain
to parties other than FIATALLIS and for this reason, denies those allegations and refers all
questions of law to the Court.
AS AND FOR A RESPONSE TO THE SIXTH CAUSE OF ACTION
"224"
18. With respect to paragraph of the Standard Complaint, FIATALLIS repeats,
reiterates and realleges each and every admission or denial heretofore made in response to
"1" "223"
Paragraphs through of the Standard Complaint with the same force and effect as though
fully set forth herein.
"225" "232"
19. FIATALLIS denies the allegations in Paragraph through of the
Standard Complaint, including all subparts, to the extent, if any, they pertain to FIATALLIS, and
denies knowledge or information sufficient to form an opinion as to the truth of the allegations
4
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asserted as they pertain to parties other than FIATALLIS and for this reason, denies those
allegations and refers allquestions of law to the Court.
AS AND FOR A RESPONSE TO THE SEVENTH CAUSE OF ACTION
"233"
20. With respect to paragraph of the Standard Complaint, FIATALLIS repeats,
reiterates and realleges each and every admission or denial heretofore made in response to
"1" "232"
Paragraphs through of the Standard Complaint with the same force and effect as though
fully set forth herein.
21. FIATALLIS denies having knowledge or information sufficient to form a belief as
"234"
to the truth of the allegations in Paragraph of the Standard Complaint.
"235"
22. FIATALLIS denies the allegations in Paragraph of the Standard Complaint,
as they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion
as to the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for
this reason, denies those allegations and refers all questions of law to the Court.
AFFIRMATIVE DEFENSES
FIRST SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS denies that 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.
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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 FIATALLIS with respect to each and every
Count contained in Plaintiff's Complaint.
SIXTH SEPARATE AFFIRMATIVE DEFENSE
Venue is improper with respect to each and every Count contained in Plaintiff's Complaint.
SEVENTH SEPARATE AFFIRMATIVE DEFENSE
This Court is considered a forum non conveniens for the defendant with respect to each
and every Count contained in Plaintiff's Complaint.
TENTH SEPARATE AFFIRMATIVE DEFENSE
The claims presented by Plaintiff's Complaint are barred by the contributing fault of
Plaintiff which fault is greater than that of each defendant or all of the defendants.
ELEVENTH SEPARATE AFFIRMATIVE DEFENSE
Any injuries or damages suffered by Plaintiff were caused by the negligence of 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 Plaintiff
and any recovery therefore must be proportionately diminished.
THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE
Any negligence on the part of defendant was superseded by the new and independent
conduct, including negligence of Plaintiff's employers and/or other third parties, who owed a duty
6
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to plaintiff and over whom FIATALLIS had no control and which conduct FIATALLIS could
neither anticipate nor reasonably foresee and which superseding conduct was not a consequence
of FIATALLIS'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/or exposure to other
particulates in the environment.
FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS 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 itsproducts 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.
SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiff's claims, to the extent that they include a prayer for equitable relief, are barred
on account of laches in that plaintiff failed or neglected to maintain this action in a swift, diligent
and timely fashion, all to the detriment of defendant.
SEVENTEENTH 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.
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EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff's claims ifbased upon the allegations of express or implied warranty are barred
because no sale of goods occurred.
NINETEENTH SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS cannot be held liable under principles of stricttort liability because products
manufactured and/or products which left FIATALLIS's possession, if any, did so prior to the
enactment of New York law regarding strict liability.
TWENTIETH SEPARATE AFFIRMATIVE DEFENSE
At all times and places mentioned in the Complaint, Plaintiff and/or other persons used
FIATALLIS's products, if indeed any were used, in an unreasonable manner, not reasonably
foreseeable to FIATALLIS, 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-FIRST 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-SECOND SEPARATE AFFIRMATIVE DEFENSE
No warranty of any kind was extended to plaintiff in this matter.
8
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TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
If the FIATALLIS, its servants or agents made any express warranties (allegations which
FIATALLIS 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-FOURTH SEPARATE AFFIRMATIVE DEFENSE
If FIATALLIS or its agents or servants made any warranties express or implied (allegations
which the defendant specifically denies) then the defendant denies that itbreached any of the
warranties.
TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
If FIATALLIS was liable, negligent or in breach of warranty, all of which it expressly
denies, FIATALLIS's liability in any or all of those events has been terminated by the intervening
acts, omissions or negligence of others over whom FIATALLIS had neither control, nor the right
of control and for whose conduct FIATALLIS is not legally responsible.
TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS denies that there was any defect or negligent manufacture, design, 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 FIATALLIS is not liable as itjustifiably relied upon inspection by others in the
regular course of trade and business.
TWENTY-SEVENTH 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.
9
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TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff's employers or employees were negligent with respect to the matters set forth 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 setforth in the Complaint. Therefore,
even ifplaintiff is entitled to recover against FIATALLIS, which defendant specifically denies, he
is not entitled to recover in the amount set forth in the Complaint because FIATALLIS is entitled
to set off any and allworkmen's compensation payments against any judgment which might be
rendered in Plaintiff's favor.
TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
Any exposure of plaintiff to any products of FIATALLIS was so minimal as to be
insufficient to establish to a reasonable degree of scientific or medical certainty that a product of
FIATALLIS caused the injuries claimed.
THIRTIETH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff has released, settled, entered into an accord and satisfaction or otherwise
compromised their claims herein, and accordingly, said claims are barred by operations of law.
THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS 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 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 character that ifthere was a defect in the
product, which FIATALLIS specifically denies, such defect resulted solely from the redesign,
10
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modification, alteration, or other such treatment or change and not from any act or omission by
FIATALLIS. Therefore, said defect, ifany, 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, ifany, that
plaintiff allegedly suffered.
THIRTY-SECOND 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.
jeopardy"
(c) Plaintiff's claim for punitive damages is barred by the "double clause of
the Fifth Amendment to the United States Constitution, as applied to the States through the
Fourteenth Amendment.
THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
Punitive damages cannot be awarded against FIATALLIS for any of the alleged actions or
omissions of any of FIATALLIS's predecessors because there is not a sufficient degree of identity
between this defendant and any of itspredecessors to justify such an award.
THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
At all times and places mentioned in the Complaint, Plaintiff failed to make reasonable
efforts to mitigate his injuries and damages, if any.
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THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
There was no negligence, gross negligence, willful, wanton or malicious misconduct,
reckless indifference or reckless disregard of the rights of Plaintiff, or malice (actual, legal or
otherwise) on the part of this defendant as to the Plaintiff.
THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
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-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS states that ifit supplied any asbestos containing 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-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS states that any asbestos containing products manufactured or sold by the
defendant which give rise to Plaintiff's 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 itsagencies of any possible health hazards
from use of such products was 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.
THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
If Plaintiff is unable to identify the manufacturer or manufacturers of the products which
allegedly caused his injury, the causes of action asserted by Plaintiff fail to state a claim upon
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which relief can be granted, for, if relief be granted, such relief would constitute a taking of this
FIATALLIS'
defendant's property for a public use without just compensation, a violation of this
constitutional rights.
FORTIETH SEPARATE AFFIRMATIVE DEFENSE
If Plaintiff is unable to identify the manufacturer or manufacturers of the products which
allegedly caused the injury, the causes of action asserted by Plaintiff fail to state a claim upon
which relief can be granted because such relief would constitute a denial by this Court of
FIATALLIS's constitutional right of equal protection under the law.
FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS alleges that any sales of asbestos-containing products made by itwere 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-SECOND SEPARATE AFFIRMATIVE DEFENSE
Plaintiff's claims against FIATALLIS may be barred in whole or in part by the equitable
doctrines of waiver, estoppel, unclean hands and/or laches or by release, accord and satisfaction
or res judicata.
FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
Any products manufactured or supplied by FIATALLIS were designed and manufactured
pursuant to and in accordance with specifications mandated by federal, state and/or local
governments and/or their agencies. The knowledge of the federal, state and/or local
governments and/or agencies of any possible health hazards from use of such products was equal
to or superior to that of FIATALLIS. Accordingly, FIATALLIS is not liable to plaintiff.
13
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FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
If itisdetermined that plaintiff was exposed to asbestos from any of FIATALLIS's products,
which products or components of those products were acquired from or sold by or used on behalf
of the United States of America or New York State, then FIATALLIS is entitled to any sovereign
or governmental immunity available to the United States or New York State.
FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
Any information regarding the alleged health hazards of exposure to asbestos in the
possession of FIATALLIS was communicated to and was in the possession of various unions and
governmental agencies, which were charged with the responsibility of disseminating such
information to plaintiff.
FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
If any person or entity liable or claimed to be liable for the injuries alleged in this action has
been given or may hereafter be given a release or covenant not to sue, FIATALLIS will be entitled
to protection under New York General Obligations Law §15-108 and the corresponding reduction
of any damages that may be determined to be due from FIATALLIS.
FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS asserts and reserves the right to rely upon any other affirmative defense
asserted by any other defendant to the extent applicable.
FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
FIATALLIS hereby reserves the right to assert upon completion of its investigation and
discovery such additional defenses, cross claims and claims against third parties as may be
appropriate.
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AS AND FOR A CROSS-CLAIM AGAINST CO-DEFENDANTS
If Plaintiff sustained damages as alleged in the Complaint, which is denied by FIATALLIS,
such damages were caused entirely by reason of the active and primary negligence and/or other
culpable conduct of the co-defendants and of third parties who are not parties to this action, with
no active or primary negligence or liability producing conduct on the part of FIATALLIS
contributing thereto.
Ifplaintiff recovers a verdict against FIATALLIS, FIATALLIS will be entitled to indemnity
and/or contribution over and against all co-defendants to this action.
AS AND FOR AN ANSWER TO ALL CROSS-CLAIMS
FIATALLIS answers the cross-claims of allco-Defendants, however stated or alleged as
follows:
All cross-claims for contribution alleged against FIATALLIS by any party are denied.
All cross-claims for indemnification alleged against FIATALLIS by any party are denied.
WHEREFORE, FIATALLIS NORTH AMERICA LLC (improperly sued herein as
"FIATALLIS NORTH AMERICA, INC."), demands judgment against Plaintiff dismissing the
Complaint or, ifthe Complaint is not so dismissed, then FIATALLIS NORTH AMERICA LLC
demands that the ultimate rights and responsibilities as among the parties, including the culpable
conduct and assumption of risk attributable to Plaintiff, be determined in this action, and that any
damages recoverable against FIATALLIS NORTH AMERICA LLC be reduced in the proportion
which the culpable conduct, including contributory negligence and/or assumption of risk of
Plaintiff bears to the culpable conduct which caused the damages; and FIATALLIS also demands
judgment for contribution and/or indemnification on its cross-claim against all co-defendants
according to the relative respons
Preview
FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In RE NEW YORK CITY ASBESTOS LITIGATION This Document Relates to: New York Asbestos RAYMOND M. GERAGHTY Litigation (NYCAL) Plaintiff Index No. 190149/2018 - against - VERIFIED ANSWER OF AIRCO, INC., et al. FIATALLIS DEFENDANT, NORTH AMERICA LLC, TO Defendants PLAINTIFF'S COMPLAINT Defendant, FIATALLIS NORTH AMERICA LLC (improperly sued herein as "FIATALLIS NORTH AMERICA, INC.), ("FIATALLIS") by its attorneys, Goldberg Segalla LLP, as and for its Complaint" Answer to Plaintiff's Complaint ("the Complaint") herein alleges as follows: ANSWERING PLAINTIFF'S COMPLAINT 1. FIATALLIS denies having knowledge or information sufficient to form a belief as "1" "13" to the truth of the allegations contained in Paragraphs through of the Complaint as they pertain to parties other than FIATALLIS, and for this reason, denies these allegations. "14" 2. FIATALLIS denies the allegations in Paragraph of the Complaint. 3. FIATALLIS denies having knowledge or information sufficient to form a belief as "15" "22" to the truth of the allegations in Paragraphs through of the Complaint as they pertain to parties other than FIATALLIS, and for this reason, denies these allegations. 4. In response to the allegations contained in the unnumbered paragraph at the last page of the Complaint, FIATALLIS incorporates its responses to the allegations contained in the NYAL- Weitz & P.C. Standard Asbestos Complaint for Personal No. Luxenberg, Injury 7, Complaint" (hereinafter "Standard Complaint"), set forth below. 20447902.v1 1 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 ANSWERING NYCAL- WEITZ & P.C. STANDARD COMPLAINT FOR LUXENBERG, PERSONAL INJURY NO. 7 5. FIATALLIS denies having knowledge or information sufficient to form a belief as "1" "2" to the truth of the allegations in Paragraphs through of the Standard Complaint. "3" 6. FIATALLIS denies the allegations in Paragraph of the Complaint, as they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for this reason, denies those allegations and refers all questions of law to the Court. 7. FIATALLIS denies having knowledge or information sufficient to form a belief as "4" "157" to the truth of the allegations in Paragraphs through of the Standard Complaint as relate to other defendants, and for this reason, denies these allegations. AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION "158" 8. With respect to paragraph of the Standard Complaint, FIATALLIS repeats, reiterates and realleges each and every admission or denial heretofore made in response to "1" "157" Paragraphs through of the Standard Complaint with the same force and effect as though fully set forth herein. "159" "177" 9. FIATALLIS denies the allegations in Paragraph through of the Standard Complaint, as they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for this reason, denies those allegations and refers all questions of law to the Court. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION "178" 10. With respect to paragraph of the Standard Complaint, FIATALLIS repeats, reiterates and realleges each and every admission or denial heretofore made in response to 2 20447902.v1 2 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 "1" "177" Paragraphs through of the Standard Complaint with the same force and effect as though fully set forth herein. "179" "183" 11. FIATALLIS denies the allegations in Paragraph through of the Standard Complaint, as they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for this reason, denies those allegations and refers all questions of law to the Court. AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION "184" 12. With respect to paragraph of the Standard Complaint, FIATALLIS repeats, reiterates and realleges each and every admission or denial heretofore made in response to "1" "183" Paragraphs through of the Standard Complaint with the same force and effect as though fully set forth herein. "185" "193" 13. FIATALLIS denies the allegations in Paragraph through of the Standard Complaint, as they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for this reason, denies those allegations and refers all questions of law to the Court. AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION "194" 14. With respect to paragraph of the Standard Complaint, FIATALLIS repeats, reiterates and realleges each and every admission or denial heretofore made in response to "1" "193" Paragraphs through of the Standard Complaint with the same force and effect as though fully set forth herein. 3 20447902.v1 3 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 "195" "204" 15. FIATALLIS denies the allegations in Paragraph through of the Standard Complaint, including allsubparts, as they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for this reason, denies those allegations and refers all questions of law to the Court. AS AND FOR A RESPONSE TO THE FIFTH CAUSE OF ACTION "205" 16. With respect to paragraph of the Standard Complaint, FIATALLIS repeats, reiterates and realleges each and every admission or denial heretofore made in response to "1" "204" Paragraphs through of the Standard Complaint with the same force and effect as though fully set forth herein. "206" "223" 17. FIATALLIS denies the allegations in Paragraph through of the Standard Complaint, including allsubparts, as they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for this reason, denies those allegations and refers all questions of law to the Court. AS AND FOR A RESPONSE TO THE SIXTH CAUSE OF ACTION "224" 18. With respect to paragraph of the Standard Complaint, FIATALLIS repeats, reiterates and realleges each and every admission or denial heretofore made in response to "1" "223" Paragraphs through of the Standard Complaint with the same force and effect as though fully set forth herein. "225" "232" 19. FIATALLIS denies the allegations in Paragraph through of the Standard Complaint, including all subparts, to the extent, if any, they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations 4 20447902.v1 4 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 asserted as they pertain to parties other than FIATALLIS and for this reason, denies those allegations and refers allquestions of law to the Court. AS AND FOR A RESPONSE TO THE SEVENTH CAUSE OF ACTION "233" 20. With respect to paragraph of the Standard Complaint, FIATALLIS repeats, reiterates and realleges each and every admission or denial heretofore made in response to "1" "232" Paragraphs through of the Standard Complaint with the same force and effect as though fully set forth herein. 21. FIATALLIS denies having knowledge or information sufficient to form a belief as "234" to the truth of the allegations in Paragraph of the Standard Complaint. "235" 22. FIATALLIS denies the allegations in Paragraph of the Standard Complaint, as they pertain to FIATALLIS, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than FIATALLIS and for this reason, denies those allegations and refers all questions of law to the Court. AFFIRMATIVE DEFENSES FIRST SEPARATE AFFIRMATIVE DEFENSE FIATALLIS denies that 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. 5 20447902.v1 5 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 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 FIATALLIS with respect to each and every Count contained in Plaintiff's Complaint. SIXTH SEPARATE AFFIRMATIVE DEFENSE Venue is improper with respect to each and every Count contained in Plaintiff's Complaint. SEVENTH SEPARATE AFFIRMATIVE DEFENSE This Court is considered a forum non conveniens for the defendant with respect to each and every Count contained in Plaintiff's Complaint. TENTH SEPARATE AFFIRMATIVE DEFENSE The claims presented by Plaintiff's Complaint are barred by the contributing fault of Plaintiff which fault is greater than that of each defendant or all of the defendants. ELEVENTH SEPARATE AFFIRMATIVE DEFENSE Any injuries or damages suffered by Plaintiff were caused by the negligence of 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 Plaintiff and any recovery therefore must be proportionately diminished. THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE Any negligence on the part of defendant was superseded by the new and independent conduct, including negligence of Plaintiff's employers and/or other third parties, who owed a duty 6 20447902.v1 6 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 to plaintiff and over whom FIATALLIS had no control and which conduct FIATALLIS could neither anticipate nor reasonably foresee and which superseding conduct was not a consequence of FIATALLIS'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/or exposure to other particulates in the environment. FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE FIATALLIS 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 itsproducts 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. SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiff's claims, to the extent that they include a prayer for equitable relief, are barred on account of laches in that plaintiff failed or neglected to maintain this action in a swift, diligent and timely fashion, all to the detriment of defendant. SEVENTEENTH 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. 7 20447902.v1 7 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff's claims ifbased upon the allegations of express or implied warranty are barred because no sale of goods occurred. NINETEENTH SEPARATE AFFIRMATIVE DEFENSE FIATALLIS cannot be held liable under principles of stricttort liability because products manufactured and/or products which left FIATALLIS's possession, if any, did so prior to the enactment of New York law regarding strict liability. TWENTIETH SEPARATE AFFIRMATIVE DEFENSE At all times and places mentioned in the Complaint, Plaintiff and/or other persons used FIATALLIS's products, if indeed any were used, in an unreasonable manner, not reasonably foreseeable to FIATALLIS, 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-FIRST 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-SECOND SEPARATE AFFIRMATIVE DEFENSE No warranty of any kind was extended to plaintiff in this matter. 8 20447902.v1 8 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE If the FIATALLIS, its servants or agents made any express warranties (allegations which FIATALLIS 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-FOURTH SEPARATE AFFIRMATIVE DEFENSE If FIATALLIS or its agents or servants made any warranties express or implied (allegations which the defendant specifically denies) then the defendant denies that itbreached any of the warranties. TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE If FIATALLIS was liable, negligent or in breach of warranty, all of which it expressly denies, FIATALLIS's liability in any or all of those events has been terminated by the intervening acts, omissions or negligence of others over whom FIATALLIS had neither control, nor the right of control and for whose conduct FIATALLIS is not legally responsible. TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE FIATALLIS denies that there was any defect or negligent manufacture, design, 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 FIATALLIS is not liable as itjustifiably relied upon inspection by others in the regular course of trade and business. TWENTY-SEVENTH 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. 9 20447902.v1 9 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff's employers or employees were negligent with respect to the matters set forth 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 setforth in the Complaint. Therefore, even ifplaintiff is entitled to recover against FIATALLIS, which defendant specifically denies, he is not entitled to recover in the amount set forth in the Complaint because FIATALLIS is entitled to set off any and allworkmen's compensation payments against any judgment which might be rendered in Plaintiff's favor. TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE Any exposure of plaintiff to any products of FIATALLIS was so minimal as to be insufficient to establish to a reasonable degree of scientific or medical certainty that a product of FIATALLIS caused the injuries claimed. THIRTIETH SEPARATE AFFIRMATIVE DEFENSE Plaintiff has released, settled, entered into an accord and satisfaction or otherwise compromised their claims herein, and accordingly, said claims are barred by operations of law. THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSE FIATALLIS 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 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 character that ifthere was a defect in the product, which FIATALLIS specifically denies, such defect resulted solely from the redesign, 10 20447902.v1 10 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 modification, alteration, or other such treatment or change and not from any act or omission by FIATALLIS. Therefore, said defect, ifany, 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, ifany, that plaintiff allegedly suffered. THIRTY-SECOND 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. jeopardy" (c) Plaintiff's claim for punitive damages is barred by the "double clause of the Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE Punitive damages cannot be awarded against FIATALLIS for any of the alleged actions or omissions of any of FIATALLIS's predecessors because there is not a sufficient degree of identity between this defendant and any of itspredecessors to justify such an award. THIRTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE At all times and places mentioned in the Complaint, Plaintiff failed to make reasonable efforts to mitigate his injuries and damages, if any. 11 20447902.v1 11 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE There was no negligence, gross negligence, willful, wanton or malicious misconduct, reckless indifference or reckless disregard of the rights of Plaintiff, or malice (actual, legal or otherwise) on the part of this defendant as to the Plaintiff. THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE 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-SEVENTH SEPARATE AFFIRMATIVE DEFENSE FIATALLIS states that ifit supplied any asbestos containing 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-EIGHTH SEPARATE AFFIRMATIVE DEFENSE FIATALLIS states that any asbestos containing products manufactured or sold by the defendant which give rise to Plaintiff's 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 itsagencies of any possible health hazards from use of such products was 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. THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE If Plaintiff is unable to identify the manufacturer or manufacturers of the products which allegedly caused his injury, the causes of action asserted by Plaintiff fail to state a claim upon 12 20447902.v1 12 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 which relief can be granted, for, if relief be granted, such relief would constitute a taking of this FIATALLIS' defendant's property for a public use without just compensation, a violation of this constitutional rights. FORTIETH SEPARATE AFFIRMATIVE DEFENSE If Plaintiff is unable to identify the manufacturer or manufacturers of the products which allegedly caused the injury, the causes of action asserted by Plaintiff fail to state a claim upon which relief can be granted because such relief would constitute a denial by this Court of FIATALLIS's constitutional right of equal protection under the law. FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE FIATALLIS alleges that any sales of asbestos-containing products made by itwere 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-SECOND SEPARATE AFFIRMATIVE DEFENSE Plaintiff's claims against FIATALLIS may be barred in whole or in part by the equitable doctrines of waiver, estoppel, unclean hands and/or laches or by release, accord and satisfaction or res judicata. FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE Any products manufactured or supplied by FIATALLIS were designed and manufactured pursuant to and in accordance with specifications mandated by federal, state and/or local governments and/or their agencies. The knowledge of the federal, state and/or local governments and/or agencies of any possible health hazards from use of such products was equal to or superior to that of FIATALLIS. Accordingly, FIATALLIS is not liable to plaintiff. 13 20447902.v1 13 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE If itisdetermined that plaintiff was exposed to asbestos from any of FIATALLIS's products, which products or components of those products were acquired from or sold by or used on behalf of the United States of America or New York State, then FIATALLIS is entitled to any sovereign or governmental immunity available to the United States or New York State. FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE Any information regarding the alleged health hazards of exposure to asbestos in the possession of FIATALLIS was communicated to and was in the possession of various unions and governmental agencies, which were charged with the responsibility of disseminating such information to plaintiff. FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE If any person or entity liable or claimed to be liable for the injuries alleged in this action has been given or may hereafter be given a release or covenant not to sue, FIATALLIS will be entitled to protection under New York General Obligations Law §15-108 and the corresponding reduction of any damages that may be determined to be due from FIATALLIS. FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE FIATALLIS asserts and reserves the right to rely upon any other affirmative defense asserted by any other defendant to the extent applicable. FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE FIATALLIS hereby reserves the right to assert upon completion of its investigation and discovery such additional defenses, cross claims and claims against third parties as may be appropriate. 14 20447902.v1 14 of 18 FILED: NEW YORK COUNTY CLERK 07/30/2018 04:46 PM INDEX NO. 190149/2018 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 07/30/2018 AS AND FOR A CROSS-CLAIM AGAINST CO-DEFENDANTS If Plaintiff sustained damages as alleged in the Complaint, which is denied by FIATALLIS, such damages were caused entirely by reason of the active and primary negligence and/or other culpable conduct of the co-defendants and of third parties who are not parties to this action, with no active or primary negligence or liability producing conduct on the part of FIATALLIS contributing thereto. Ifplaintiff recovers a verdict against FIATALLIS, FIATALLIS will be entitled to indemnity and/or contribution over and against all co-defendants to this action. AS AND FOR AN ANSWER TO ALL CROSS-CLAIMS FIATALLIS answers the cross-claims of allco-Defendants, however stated or alleged as follows: All cross-claims for contribution alleged against FIATALLIS by any party are denied. All cross-claims for indemnification alleged against FIATALLIS by any party are denied. WHEREFORE, FIATALLIS NORTH AMERICA LLC (improperly sued herein as "FIATALLIS NORTH AMERICA, INC."), demands judgment against Plaintiff dismissing the Complaint or, ifthe Complaint is not so dismissed, then FIATALLIS NORTH AMERICA LLC demands that the ultimate rights and responsibilities as among the parties, including the culpable conduct and assumption of risk attributable to Plaintiff, be determined in this action, and that any damages recoverable against FIATALLIS NORTH AMERICA LLC be reduced in the proportion which the culpable conduct, including contributory negligence and/or assumption of risk of Plaintiff bears to the culpable conduct which caused the damages; and FIATALLIS also demands judgment for contribution and/or indemnification on its cross-claim against all co-defendants according to the relative respons