FILED: ALBANY COUNTY CLERK 03/08/ :09 PM INDEX NO NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 03/08/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY x DAVID BROWN and MARIA BROWN, -against- 3M COMPANY and RESEARCH-COTTRELL, INC., et al. Plaintiffs, Defendants. Index No.: /2017 RESEARCH-COTTRELL, INC. S ANSWER TO PLAINTIFFS' COMPLAINT, AFFIRMATIVE DEFENSES, CROSS-CLAIMS, AND ANSWER TO CROSS- CLAIMS x COUNSELORS: PLEASE TAKE NOTICE that defendant RESEARCH-COTTRELL, INC. n/k/a AWT AIR COMPANY, INC. (hereinafter RC ), by its attorneys, Tanenbaum Keale LLP, hereby answers plaintiffs' Verified Complaint as follows: 1. RC denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1 through 3 of plaintiffs' Verified Complaint and leaves the plaintiff to his proofs. 2. The statements contained in paragraph 4 of plaintiffs Verified Complaint do not require any admissions or denials as said statements merely define "Defendants" as used within the context of plaintiffs Verified Complaint. 3. In response to paragraphs 5, 12 and 16 of plaintiffs Verified Complaint, RC admits that it is a foreign business corporation that has, from time to time, conducted, done or transacted business in the State of New York, with its principal place of business outside of the State of New York. RC denies the remaining allegations contained in paragraphs 5, 12 and 16 of plaintiffs Verified Complaint, and refers all conclusions of law contained in paragraphs 5, 12 and 16 to the Court. 1 of 26

2 4. RC denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6, 7, 8, 9, 10, 11, 13, 14 and 15 of plaintiffs Verified Complaint as those allegations relate solely to other defendants in this action. 5. RC denies each and every allegation contained in paragraphs 17 through 23 of plaintiffs Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 19 through 23 of plaintiffs Verified Complaint as they relate to any other defendant or third party in this action. RC also refers all conclusions of law contained in paragraphs 19 through 23 to the Court. AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE, RC ANSWERS AS FOLLOWS: 6. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 23 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 24 of plaintiffs Verified Complaint. 7. RC denies the allegations contained in paragraphs 25 through 32 of plaintiffs Verified Complaint, including their subparts, to the extent they pertain to RC and denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to any other defendant in this action. RC also refers all conclusions of law contained in paragraphs 25 through 32 to the Court. AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY, RC ANSWERS AS FOLLOWS: 8. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 32 of plaintiffs Verified Complaint with the same force and of 26

3 effect as if fully set forth at length herein in answer to paragraph 33 of plaintiffs Verified Complaint. 9. RC denies the allegations contained in paragraphs 34 through 37 of plaintiffs Verified Complaint to the extent they pertain to RC and denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to any other defendant in this action. RC also refers all conclusions of law contained in paragraphs 34 through 37 to the Court. AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY, RC ANSWERS AS FOLLOWS: 10. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 37 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 38 of plaintiffs Verified Complaint. 11. RC denies the allegations contained in paragraphs 39 through 47 of plaintiffs Verified Complaint to the extent they pertain to RC and denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to any other defendant in this action. RC also refers all conclusions of law contained in paragraphs 39 through 47 to the Court. AS AND FOR A FOURTH CAUSE OF ACTION SOUNDING IN LABOR LAW VIOLATIONS, RC ANSWERS AS FOLLOWS: 12. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 47 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 48 of plaintiffs Verified Complaint of 26

4 13. RC denies each and every allegation contained in paragraphs 49 through 66 of plaintiffs Verified Complaint, including their subparts, to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 49 through 66 of plaintiffs Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 49 through 66 to the Court. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY, RC ANSWERS AS FOLLOWS: 14. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 66 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 67 of plaintiffs Verified Complaint. 15. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 68 through 74 of plaintiffs Verified Complaint as they relate solely to defendant Metropolitan Life Insurance Company and leaves the plaintiffs to their proofs. AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION, RC ANSWERS AS FOLLOWS: 16. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 74 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 75 of plaintiffs Verified Complaint of 26

5 17. RC denies each and every allegation contained in paragraphs 76 through 90 of plaintiffs Verified Complaint, including their subparts, to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 76 through 90 of plaintiffs Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 76 through 90 to the Court. AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS, RC ANSWERS AS FOLLOWS: 18. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 90 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 91 of plaintiffs Verified Complaint. 19. The statements contained in paragraph 92 of plaintiffs Verified Complaint do not require any admissions or denials as said statements merely define "contractor(s)" as used within the context of plaintiffs Verified Complaint. 20. RC denies each and every allegation contained in paragraphs 93 through 104 of plaintiffs Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 93 through 104 of plaintiffs Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 93 through 104 to the Court of 26

6 AS AND FOR AN EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS, RC ANSWERS AS FOLLOWS: 21. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 104 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 105 of plaintiffs Verified Complaint. 22. RC denies each and every allegation contained in paragraphs 106 through 119 of plaintiffs Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 106 through 119 of plaintiffs Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 106 through 119 to the Court. 23. In response to paragraph 120 of plaintiffs Verified Complaint, RC agrees that the Substantive Law of Admiralty governs some or all of the allegations contained in plaintiffs causes of action, but denies that the applicability of the Substantive Law of Admiralty precludes removal of some or all of those allegations. AS AND FOR A NINTH CAUSE OF ACTION FOR JOINT AND SEVERAL LIABILITY, RC ANSWERS AS FOLLOWS: 24. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 120 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 121 of plaintiffs Verified Complaint of 26

7 25. RC denies each and every allegation contained in paragraphs 122 through 133 of plaintiffs Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 122 through 133 of plaintiffs Verified Complaint as they relate to any other party or third party in this action. RC also refers all conclusions of law contained in paragraphs 122 through 133 to the Court. AS AND FOR A TENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES, RC ANSWERS AS FOLLOWS: 26. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 133 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 134 of plaintiffs Verified Complaint. 27. RC denies each and every allegation contained in paragraph 135 of plaintiffs Verified Complaint to the extent that such allegations are directed toward RC. RC is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 135 of plaintiffs Verified Complaint as they relate to any other defendant. RC also refers all conclusions of law contained in paragraph 135 to the Court. AS AND FOR A ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF CONSORTIUM, RC ANSWERS AS FOLLOWS: 28. RC repeats and reiterates each and every answer to each and every allegation contained in paragraphs 1 through 135 of plaintiffs Verified Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 136 of plaintiffs Verified Complaint of 26

8 29. RC denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 137 and 138 of plaintiffs' Verified Complaint and leaves the plaintiffs to their proofs. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, 30. Plaintiffs Verified Complaint fails to contain any allegations whatsoever against RC, and fails to state a claim upon which relief can be granted against RC. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, 31. That RC acted reasonably and with due care toward plaintiff. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, 32. That RC owed no duty to plaintiff. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, 33. That RC violated no duty owed to plaintiff. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, 34. That at all times relevant hereto, RC complied with all applicable laws, regulations and standards. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, 35. In the event that plaintiff relies on New York Law, L C. 682 Sections 4 and 12 as grounds for maintaining this action, these sections are unconstitutional and this action is time barred of 26

9 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, 36. The claims are barred by the doctrines of res judicata and/or collateral estoppel. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, 37. That RC was not served in accordance with the provisions of the New York Civil Practice Law and Rules and therefore plaintiffs Verified Complaint must be dismissed due to insufficient process and insufficient service of process. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, 38. Plaintiffs Verified Complaint contains no information regarding dates of exposure, injury or diagnosis, or any other information necessary to determine whether plaintiffs claims were timely filed. RC asserts the claims may be barred under the terms of any relevant statutes of limitations or repose from the jurisdiction or jurisdictions whose limitations or repose provisions govern. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, 39. Plaintiff has failed to plead any basis for claims of misrepresentation, deliberate concealment, or fraud against RC, much less state such claims with the specificity required by the New York Civil Practice Law and Rules and Federal Rules of Civil Procedure. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, 40. That one or more of the causes of action have not been maintained in a timely fashion and plaintiff have neglected the same and should be barred by the doctrine of laches of 26

10 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, 41. That any injuries and/or damages sustained by the plaintiff, as alleged in plaintiffs Verified Complaint herein, were caused in whole or in part by the contributory negligence and/or culpable conduct of said plaintiff and not as a result of any contributory negligence and/or culpable conduct on the part of the answering defendant, which either bars or reduces plaintiffs claims herein an amount to be determined by the trier of fact. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, 42. If plaintiff sustained any injury as alleged, which is denied, the same resulted, upon information and belief, from his own negligence in failing to care for his own health by using tobacco products over an extended period of time. The use of said tobacco products is the sole, direct and proximate cause, or a contributing cause, of the alleged injury or damage, if any, about which plaintiff complain. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, 43. If plaintiff sustained any injuries or damages as alleged in plaintiffs Verified Complaint, all of which RC specifically denies, then such injuries and damages were caused or contributed to by reason of the negligence of said plaintiff, by reason of, but not limited to, said plaintiffs failure to wear a respirator, engage in safe work practices or to protect himself adequately from risk of harm. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, 44. If plaintiff sustained any injury or damage, which is denied, then such injury or damage were proximately caused or contributed to by exposure to and inhalation of noxious and of 26

11 deleterious fumes and residues from industrial products and by-products prevalent on plaintiff's job sites and substances other than those manufactured or sold by RC, if any, and by cumulative exposure to all types of environmental and industrial pollutants of air and water. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, 45. Insofar as plaintiffs Verified Complaint and each cause of action considered separately allege a cause of action accruing before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to plaintiff, including contributory negligence and assumption of the risk. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, 46. This action may be barred by the applicable state and/or federal industrial insurance and/or worker's compensation laws which may provide an exclusive remedy for the damages which plaintiff allegedly sustained, if any. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE, 47. In the event that plaintiff was employed by this answering defendant, plaintiffs sole and exclusive remedy is under the Workers Compensation Law of the State of New York. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE, 48. That the accident and injuries complained of in the plaintiffs Verified Complaint were caused or brought about by the negligence of a third person or persons over whom this answering defendant had no control and for whose acts the answering defendant was in no way responsible of 26

12 AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE, 49. That by entering into the activity in which the plaintiff was engaged at the time of the occurrence set forth in plaintiffs Verified Complaint, said plaintiff knew the hazards thereof and the inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and damages were sustained by the plaintiff herein as alleged in plaintiffs Verified Complaint arose from and were caused by the reason of such risks voluntarily undertaken by the plaintiff in his activities and such risks were assumed and accepted by him in performing and engaging in said activities. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE, 50. There should be no recovery against RC because of any failure to warn or inadequacy of warning because, upon information and belief, at all times pertinent to plaintiffs claims, said plaintiff was possessed of or should have been possessed of good and adequate knowledge which negated any need for said warning and/or plaintiff was required to follow specific written safety procedures as established by his employers which negated the need or requirement for any such warning. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE, 51. Whatever damages plaintiff may have suffered, if any, were solely or proximately caused by the plaintiff when he assumed and voluntarily exposed himself to specific and appreciated risks pursuant to the doctrine of volenti non fit injuria and assumption of risk, for which plaintiff is barred from receiving damages, or, in the alternative, for which recovery is reduced of 26

13 AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE, 52. That after the product(s) left the control of this answering defendant, they were subject to abuse, alteration, change, improper installation or operation by persons not in the employ or control of this defendant; which alteration, change, abuse, improper installation or operation proximately caused the injuries complained of by plaintiff in plaintiffs Verified Complaint. Such change in condition bars the action as against this defendant. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE, 53. The alleged injuries and damages of which the plaintiff complain were caused by unauthorized, unattended, or improper use of the products complained of, and as a result of failure to exercise reasonable and ordinary care, caution and vigilance for which RC is not liable or not responsible. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE, 54. That any oral warranties upon which plaintiff allegedly relied are inadmissible and unavailable because of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE, 55. That plaintiff, his coworkers or employers misused, abused, mistreated and misapplied the product(s) designated as asbestos material as alleged in plaintiffs Verified Complaint herein. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE, 56. Whatever damages plaintiff may have suffered, if any, were due solely or in part to the failure of plaintiff's employers to take adequate precautions and provide plaintiff with a of 26

14 safe place to work. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE, 57. While this answering defendant denies the allegations of plaintiff with respect to negligence, statutory liability, strict liability, injury and damages, to the extent that plaintiff may be able to prove the same, they were the result of intervening and/or interceding acts of superseding negligence on the part of third-parties over which this defendant had neither control nor right of control and are not recoverable as against this defendant. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE, 58. In accordance with CPLR 1601 et seq., the liability of this answering defendant, if any, to the plaintiff for non-economic loss is limited to this defendant s equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability for non-economic loss, including named parties and others over whom plaintiff could have obtained personal jurisdiction with due diligence. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE, 59. In the event plaintiff recover a verdict or judgment against the defendant, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral source such as insurance, social security, workers compensation or employee benefit programs. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE, 60. If plaintiff have heretofore settled or should hereafter settle or have any judgment of 26

15 rendered in his favor for any of his alleged injuries and damages with any entity, then RC is entitled to a setoff in the amount of said settlement. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE, 61. Plaintiff contributed to his illness and/or injuries, in whole or in part, by the use of other substances, product, drugs or medications. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE, 62. The place of trial of this action is stated for an improper venue. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE, 63. In the event it should be proven at the time of trial that this answering defendant is subject to market share liability, then this defendant s respective share of such liability would be of such a de minimus amount as to make its contribution for damages negligible and this defendant would be entitled to contribution, either in whole or in part, from the co-defendants not represented by this answer. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE, 64. At all times material to plaintiffs claims, the state of medical and scientific knowledge did not provide RC with knowledge, either actual or constructive, and by the application of reasonable developed human skill and foresight RC had no reason to know the propensities, if any, of asbestos, asbestos dust, asbestos fibers and/or asbestos products to cause or contribute to the creation of medical conditions or circumstances involving alleged injuries to the lungs, respiratory system, larynx, stomach or other bodily organs, bone and tissue, and also including asbestosis, respiratory disorders, risk of mesothelioma or any other illness of of 26

16 any type whatsoever at the times relevant to plaintiffs claims. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE, 65. This answering defendant did not give, make or otherwise extend warranties, whether express or implied, upon which plaintiff could rely. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE, 66. This answering defendant breached no warranties, whether express or implied. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE, 67. Any cause of action against RC based on a breach of warranties is barred because of failure to give RC timely notice required by the Uniform Commercial Code enacted in New York. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE, 68. The doctrine of strict liability in tort is inapplicable to this litigation. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE, 69. To the extent plaintiffs Verified Complaint and the causes of action pled therein fail to identify RC as the manufacturer in fact of any injury-causing products, or fail to identify any product manufactured by RC as the cause in fact of any injuries to plaintiff, plaintiffs Verified Complaint fails to state a claim upon which relief can be granted, inasmuch as such claims, if granted, would contravene RC's constitutional rights to substantive and procedural due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of New York or any other applicable jurisdiction of 26

17 AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE, 70. Plaintiffs claim for relief, if granted, would constitute a taking of private property for public use without just compensation, and would contravene RC's rights as preserved by the Fifth and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of New York or any other applicable jurisdiction. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE, 71. To the extent plaintiffs Verified Complaint and the causes of action pled therein fail to identify RC as the manufacturer in fact of any injury-causing products, or fail to identify any product manufactured by RC as the cause in fact of any injuries to plaintiff, said Verified Complaint fails to state a claim upon which relief can be granted, inasmuch as such claims, if granted, would constitute a denial by this court of this defendant's right to equal protection of the law, as preserved by the Fourteenth Amendment to the Constitution of the United States as well as the Constitution of the State of New York or any other applicable jurisdiction. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE, 72. To the extent plaintiffs Verified Complaint and the causes of action pled therein fail to identify RC as the manufacturer in fact of any injury-causing products, or fail to identify any product manufactured by RC as the cause in fact of any injuries to plaintiff, said Verified Complaint fails to state a claim upon which relief can be granted, inasmuch as such claims, if granted, would constitute an invalid burden by this court on interstate commerce, and a burden without resort to less burdensome alternatives, in violation of the Commerce Clause, Article I, Section 8, of the Constitution of the United States of 26

18 AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE, 73. Plaintiffs claims are barred as a result of the unconstitutionality of the applicable revival statute. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE, 74. Plaintiffs claims are barred because of plaintiffs failure to join necessary and indispensable parties. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE, 75. Insofar as plaintiffs Verified Complaint is premised upon any claims accruing on or after September 1, 1975, to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to the plaintiff and defendants other than this answering defendant, including contributory negligence and assumption of the risk, in the proportion to which the culpable conduct attributable to plaintiff and/or others bears to the culpable conduct which caused the damages. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE, 76. The damages allegedly sustained by the plaintiff were caused, in whole or in part, through the operation of nature. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE, 77. At all times relevant to this litigation, the agents, servants and/or employees of this answering defendant utilized proper methods in the conduct of its operations, in conformity with the available knowledge and research of the scientific and industrial communities of 26

19 AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE, 78. Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries alleged in plaintiffs Verified Complaint. AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE, 79. While denying the allegations of plaintiff(s) Standard Complaint with respect to liability, to the extent that they may be able to prove negligence or improper conduct, the acts of this answering defendant were not a proximate cause of any injuries to plaintiff(s). AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE, 80. To the extent that plaintiff(s) claims have been revived by amendments to New York s Civil Practice Law and Rules, said claims can be no greater than what they were at the time when they originally accrued. Therefore, plaintiff(s) cannot rely on the doctrine of strict liability in tort, and plaintiff(s) warranty claims are barred for lack of privity. AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE, 81. Liability based on the Uniform Commercial Code, pure comparative negligence, strict liability in tort, or other legal doctrines or statutes, before the dates such legal doctrines were adopted in this jurisdiction, violate the due process clause of the Fourteenth Amendment to the United States Constitution. AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE, 82. Plaintiff(s)' claim for punitive damages is in violation of the Due Process clause of the Fifth and Fourteenth Amendments of the United States Constitution, and violates the Constitution of the State of New York or any other applicable jurisdiction of 26

20 AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE, 83. Plaintiff(s)' claim for punitive damages is in violation of the Eighth Amendment prohibition of ex post facto laws and laws impairing the obligations of contracts contained in Section 20, Paragraph 1, of Article 1 of the United States Constitution. AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE, 84. Plaintiffs Verified Complaint fails to allege any allegations about, concerning or directed at this answering defendant and therefore fails to state a claim against this defendant. AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE, 85. The claims asserted herein are barred by the doctrines of Estoppel and Waiver. AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE, 86. RC has a defense founded upon documentary evidence. AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE, 87. Plaintiffs or any other parties asserting causes of action in this matter have not the legal capacity to sue. AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE, 88. There is another action pending between the same parties for the same cause of action in a court of any state or the United States. AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE, 89. The causes of action herein, or any of them, may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of of 26

21 the moving party, payment, release, res judicata, statute of limitations, or statute of frauds. AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE, 90. With respect to any counterclaim, it may not properly be interposed in this action AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE, 91. All defenses which have been or will be asserted by other defendants and/or thirdparty defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to plaintiffs Verified Complaint. In addition, this answering defendant will rely upon any and all other and further defenses which become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend its answer for the purposes of asserting any such additional affirmative defenses. AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE, 92. If it is determined that the plaintiffs were exposed to any RC product, which product or components of those products were acquired from or sold by or used on behalf of the United States of America or any State or agency thereof, then RC is entitled to any sovereign or government immunity or defense available to the United States and/or relevant state and/or relevant agency thereof including, but not limited to, the federal government contractor defense. AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE, 93. Plaintiffs' purported exposure to asbestos occurred on a federal enclave. All claims arising from alleged incidents on a federal enclave must be determined in accordance with federal laws of 26

22 AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE, 94. The design, construction, maintenance, and all safety aspects of the equipment at issue implicate government contracts that give rise to federal laws, including but not limited to the War Powers Acts. AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE, 95. RC acted under the authority of an officer or agency of the United States, within the meaning of 28 U.S.C. 1442(a)(1). RC acted under the direction, control and demand of the U.S. Government, the Secretary of the Navy or his delegee based on extensive and strict government design specifications. AS AND FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE, 96. The government mandated precise specifications regarding the products it needed, and RC conformed to those specifications. RC cannot be liable to a third party in tort if the government approved reasonably precise specifications and RC conformed to those specifications. AS AND FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE, 97. Pursuant to the Defense Production Act, RC cannot be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to the Defense Production Act. AS AND FOR A CROSS-CLAIM AGAINST OTHER DEFENDANTS NAMED IN THIS CASE, 98. If plaintiff(s) sustained damages in the manner alleged in the Standard Complaint, all of which is denied by this answering defendant, such damages were caused by reason of of 26

23 negligence, breach of contract obligation or warranty, nuisance or trespass or are otherwise the proper responsibility of other defendants named in this case or plaintiff(s) culpable conduct. 99. By reason of the foregoing, the answering defendant is entitled to indemnification or contribution from, and to have judgment over against, its co-defendants, or some of them, for all or part of any verdict or judgment that plaintiff(s) may recover against the answering defendant. ANSWER TO ALL CROSS-CLAIMS 100. RC hereby answers the cross-claims of each of the other defendants and any thirdparty defendant named in this action, however asserted or alleged, and says: 101. All cross-claims for contribution alleged against RC by any party defendant or third-party defendant are denied All cross-claims for indemnification alleged against RC by any party defendant or third-party defendant are denied All cross-claims for contractual indemnification alleged against RC by any party defendant or third-party defendant are denied of 26

24 DEMAND FOR JURY TRIAL RESEARCH-COTTRELL, INC. n/k/a AWT AIR COMPANY, INC. hereby demands a trial by jury in this action. Dated: March 8, 2017 Newark, New Jersey TANENBAUM KEALE LLP By: /s/ Michael A. Tanenbaum, Esq. Attorneys for Defendant RESEARCH-COTTRELL, INC. n/k/a AWT AIR COMPANY, INC Raymond Boulevard One Newark Center, 16th Floor Newark, New Jersey (973) To: Joseph W. Belluck, Esq. BELLUCK & FOX, LLP Attorneys for Plaintiffs th Avenue, 4 th Floor New York, New York (212) All Known Defense Counsel of Record of 26

25 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY x DAVID BROWN and MARIA BROWN, -against- 3M COMPANY and RESEARCH-COTTRELL, INC., et al. Plaintiffs, Index No.: /2017 ATTORNEY'S VERIFICATION Defendants x The undersigned affirms the truth of the following statement to be true under penalties of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules. That he is duly admitted to practice law in the State of New York and is a member of the law firm of TANENBAUM KEALE LLP, attorneys for defendant RESEARCH-COTTRELL, INC. n/k/a AWT AIR COMPANY, INC. That he has read the foregoing document and knows the contents thereof, and that the same is true to the knowledge of your affiant, except as to the matters therein alleged upon information and belief, and that as to those matters he believes them to be true. That the reason why this affirmation is being made by affirmant and not the defendant is that the defendant does not maintain an office in the county where affirmant maintains his offices. That the source of affirmant s information and the grounds of his belief as to all the matters therein alleged upon information and belief are reports from and communications had with said defendant. Dated: Newark, New Jersey March 8, 2017 /s/ Michael A. Tanenbaum, Esq. 25 of 26

26 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY x DAVID BROWN and MARIA BROWN, -against- 3M COMPANY and RESEARCH-COTTRELL, INC., et al. Plaintiffs, Index No.: /2017 CERTIFICATION OF SERVICE Defendants x I HEREBY CERTIFY that on the 8th day of March 2017, a copy of the foregoing RESEARCH-COTTRELL, INC. S ANSWER TO PLAINTIFFS COMPLAINT, AFFIRMATIVE DEFENSES, CROSS-CLAIMS, AND ANSWER TO CROSS-CLAIMS 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. Dated: March 8, 2017 Newark, New Jersey /s/ Michael A. Tanenbaum, Esq of 26