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FILED: NEW YORK COUNTY CLERK 06/04/2018 05:33 PM INDEX NO. 190149/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 06/04/2018
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. CNH
DEFENDANT,
INDUSTRIAL AMERICA
Defendants
LLC, TO PLAINTIFF'S
COMPLAINT
Defendant, CNH Industrial America LLC (improperly sued herein as "CNH America, as successor
Case"
in interest to Case Equipment Corporation, Case Corporation and J.I. Case") ("CNH") by itsattorneys,
Complaint"
Goldberg Segalla LLP, as and for its Answer to Plaintiff's Complaint ("the Complaint") herein alleges as
follows:
ANSWERING PLAINTIFF'S COMPLAINT
1. CNH denies having knowledge or information sufficient to form a belief as to the
"1" "11"
truth of the allegations contained in Paragraphs through of the Complaint as they pertain
to parties other than CNH, and for this reason, denies these allegations.
"12"
2. CNH denies the allegations in Paragraph of the Complaint.
3. CNH denies having knowledge or information sufficient to form a belief as to the
"13" "22"
truth of the allegations in Paragraphs through of the Complaint as they pertain to parties
other than CNH, and for this reason, denies these allegations.
4. In response to the allegations contained in the unnumbered paragraph at the last
page of the CNH incorporates itsresponses to the allegations contained in the NYAL-
Complaint,
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Weitz & Luxenberg, P.C. Standard Asbestos Complaint for Personal Injury No. 7, (hereinafter
Complaint"
"Standard Complaint"), set forth below.
ANSWERING NYCAL- WEITZ 4 LUXENBERG, P.C. STANDARD COMPLAINT FOR
PERSONAL INJURY NO. 7
5. CNH denies having knowledge or information sufficient to form a belief as to the
"1" "2"
truth of the allegations in Paragraphs through of the Standard Complaint.
"3"
6. CNH denies the allegations in Paragraph of the Complaint, as they pertain to
CNH, 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 CNH and for this reason, denies those
allegations and refers allquestions of law to the Court.
7. CNH denies having knowledge or information sufficient to form a belief as to the
"4" "157"
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, CNH repeats, reiterates
"1"
and realleges each and every admission or denial heretofore made in response to Paragraphs
"157"
through of the Standard Complaint with the same force and effect as though fully set forth
herein.
"159" "177"
9. CNH denies the allegations in Paragraph through of the Standard
Complaint, as they pertain to CNH, 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 CNH and for
this reason, denies those allegations and refers all questions of law to the Court.
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AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
"178"
10. With respect to paragraph of the Standard Complaint, CNH repeats, reiterates
"1"
and realleges each and every admission or denial heretofore made in response to Paragraphs
"177"
through of the Standard Complaint with the same force and effect as though fully set forth
herein.
"179" "183"
11. CNH denies the allegations in Paragraph through of the Standard
Complaint, as they pertain to CNH, 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 CNH 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, CNH repeats, reiterates
"1"
and realleges each and every admission or denial heretofore made in response to Paragraphs
"183"
through of the Standard Complaint with the same force and effect as though fully set forth
herein.
"185" "193"
13. CNH denies the allegations in Paragraph through of the Standard
Complaint, as they pertain to CNH, 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 CNH 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, CNH repeats, reiterates
"1"
and realleges each and every admission or denial heretofore made in response to Paragraphs
"193"
through of the Standard Complaint with the same force and effect as though fully set forth
herein.
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"195" "204"
15. CNH denies the allegations in Paragraph through of the Standard
Complaint, including all subparts, as they pertain to CNH, 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 CNH 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, CNH repeats, reiterates
"1"
and realleges each and every admission or denial heretofore made in response to Paragraphs
"204"
through of the Standard Complaint with the same force and effect as though fully set forth
herein.
"206" "223"
17. CNH denies the allegations in Paragraph through of the Standard
Complaint, including all subparts, as they pertain to CNH, 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 CNH 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, CNH repeats, reiterates
"1"
and realleges each and every admission or denial heretofore made in response to Paragraphs
"223"
through of the Standard Complaint with the same force and effect as though fully set forth
herein.
"225" "232"
19. CNH denies the allegations in Paragraph through of the Standard
Complaint, including all subparts, to the extent, ifany, they pertain to CNH, and denies knowledge
or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain
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to parties other than CNH 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, CNH repeats, reiterates
"1"
and realleges each and every admission or denial heretofore made in response to Paragraphs
"232"
through of the Standard Complaint with the same force and effect as though fully set forth
herein.
21. CNH denies having knowledge or information sufficient to form a belief as to the
"234"
truth of the allegations in Paragraph of the Standard Complaint.
"235"
22. CNH denies the allegations in Paragraph of the Standard Complaint, as they
pertain to CNH, 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 CNH and for this reason, denies
those allegations and refers allquestions of law to the Court.
AFFIRMATIVE DEFENSES
FIRST SEPARATE AFFIRMATIVE DEFENSE
CNH 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 CNH 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
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to plaintiff and over whom CNH had no control and which conduct CNH could neither anticipate
nor reasonably foresee and which superseding conduct was not a consequence of CNH'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
CNH 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
CNH cannot be held liable under principles of strict tort liability because products
manufactured and/or products which left CNH's possession, ifany, 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
CNH's products, if indeed any were used, in an unreasonable manner, not reasonably foreseeable
to CNH, and for a purpose for which the products were not intended, manufactured, or designed;
Plaintiff's injuries and damages, ifany, were directly and proximately caused by said misuse and
abuse, and Plaintiff's recovery herein, ifany 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.
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TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
If the CNH, its servants or agents made any express warranties (allegations which CNH
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 CNH or itsagents 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 CNH was liable, negligent or in breach of warranty, all of which itexpressly denies,
CNH's liability in any or all of those events has been terminated by the intervening acts, omissions
or negligence of others over whom CNH had neither control, nor the right of control and for whose
conduct CNH is not legally responsible.
TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
CNH 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 CNH 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.
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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 if plaintiff is entitled to recover against CNH, which defendant specifically denies, he isnot
entitled to recover in the amount set forth in the Complaint because CNH is entitled to set off any
and all workmen'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 CNH was so minimal as to be insufficient to
establish to a reasonable degree of scientific or medical certainty that a product of CNH 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
CNH expressly denies that itmanufactured, designed, and/or sold any products referred to
in Plaintiff's Complaint which caused injury to plaintiff. Notwithstanding, at alltimes 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 CNH specifically denies, such defect resulted solely from the redesign,
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modification, alteration, or other such treatment or change and not from any act or omission by
CNH. 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
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 CNH for any of the alleged actions or
omissions of any of CNH'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
CNH states that if itsupplied 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
CNH 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 its agencies 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
defendant's property for a public use without just compensation, a violation of this CNH's
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 CNH's
constitutional right of equal protection under the law.
FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
CNH 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-SECOND SEPARATE AFFIRMATIVE DEFENSE
Plaintiff's claims against CNH 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 CNH 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 CNH. Accordingly, CNH is not liable to plaintiff.
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FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
If itis determined that plaintiff was exposed to asbestos from any of CNH'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 CNH 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 CNH 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, CNH 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 CNH.
FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
CNH 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
CNH hereby reserves the right to assert upon completion of itsinvestigation 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 CNH, 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 CNH contributing thereto.
If plaintiff recovers a verdict against CNH, CNH 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
CNH answers the cross-claims of all co-Defendants, however stated or alleged as follows:
All cross-claims for contribution alleged against CNH by any party are denied.
All cross-claims for indemnification alleged against CNH by any party are denied.
WHEREFORE, CNH Industrial America LLC (improperly sued herein as "CNH America,
Case"
as successor in interest to Case Equipment Corporation, Case Corporation and J.I.Case"), demands
judgment against Plaintiff dismissing the Complaint or, if the Complaint is not so dismissed, then
CNH Industrial 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 CNH Industrial 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 CNH
also demands judgment for contribution and/or indemnification on itscross-claim against all co-
defendants according to the relative responsibility of the parties; and CNH Industrial America LLC
also demands judgment for the costs and disbursements of this action and for such other, further
or different relief as to the Court may seem just, proper and equitable.