FILED: NEW YORK COUNTY CLERK 10/28/ :04 PM INDEX NO /2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/28/2016

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1 FILED: NEW YORK COUNTY CLERK 10/28/ :04 PM INDEX NO /2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X VINCENT ASCIONE, v. ALCOA, INC., et al., Plaintiff, Defendants. Index No /2016 VERIFIED ANSWER TO PLAINTIFF S VERIFIED COMPLAINT, CROSS- CLAIM AND ANSWER TO CROSS-CLAIMS OF IMO INDUSTRIES INC. Defendant Imo Industries Inc., sued incorrectly as IMO INDUSTRIES, INC. f/k/a Delaval, Inc., Individually and as Successor to Turbine Equipment Company (hereinafter Imo ), by its attorneys Leader & Berkon LLP, hereby acknowledges receipt and answers the plaintiff s Verified Complaint, filed on September 27, 2016 (hereinafter the Complaint ), and alleges, upon information and belief, as follows: THE PARTIES 1. Imo denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1 through 4 of the Complaint. 2. Imo denies the allegations contained in paragraph 5 of the Complaint insofar as they are directed at Imo, except admits that Imo has conducted and/or transacted business in the State of New York. 3. Imo denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6 through 46 of the Complaint. 4. Imo denies the allegations contained in paragraph 47 of the Complaint except admits that Imo is a duly organized foreign corporation that has done and/or transacted business in the State of New York. X 1 of 15

2 5. Imo denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 48 through 92 of the Complaint. 6. Imo denies the allegations contained in paragraph 93 of the Complaint insofar as they are directed at Imo, except admits that Imo has conducted and/or transacted business in the State of New York. 7. Imo denies the truth of the allegations contained in paragraphs 94 through 99 (inclusive) of the Complaint insofar as they are directed at Imo, and otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in said paragraphs. 8. Imo denies the truth of the allegations contained in paragraph 100 of the Complaint insofar as they are directed at Imo, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in said paragraph, and refers all questions of law to the Court. AS TO THE FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE 9. With regard to paragraph 101 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 100 of the Complaint as if more fully 10. Imo denies the truth of the allegations contained in paragraphs 102 through 109 of the Complaint, including all sub-parts, insofar as they are directed at Imo, and otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in said paragraphs. AS TO THE SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY 11. With regard to paragraph 110 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 109 of the Complaint as if more fully 2 2 of 15

3 12. Imo denies the truth of the allegations contained in paragraphs 111 through 114 of the Complaint, insofar as they are directed at Imo, and otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in said paragraphs. AS TO THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 13. With regard to paragraph 115 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 114 of the Complaint as if more fully 14. Imo denies the truth of the allegations contained in paragraphs 116 through 124 of the Complaint, insofar as they are directed at Imo, and otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in said paragraphs. AS TO THE FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS 15. With regard to paragraph 125 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 124 of the Complaint as if more fully 16. Imo denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 126 through 143 (inclusive), including all sub-parts therein, as these allegations do not pertain to it. 3 3 of 15

4 AS TO THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY 17. With regard to paragraph 144 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 143 of the Complaint as if more fully 18. Imo denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 145 through 151 (inclusive), as these allegations do not pertain to it. AS TO THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION 19. With regard to paragraph 152 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 151 of the Complaint as if more fully 20. Imo denies the truth of the allegations contained in paragraphs 153 through 167 of the Complaint, including all sub-parts, insofar as they are directed at Imo, and otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in said paragraphs. AS TO THE SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS 21. With regard to paragraph 168 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 167 of the Complaint as if more fully 4 4 of 15

5 22. Imo denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 169 through 181 (inclusive), as these allegations do not pertain to it. AS TO THE EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS 23. With regard to paragraph 182 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 181 of the Complaint as if more fully 24. Imo denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 183 through 197 (inclusive), including all sub-parts therein, as these allegations do not pertain to it. AS TO THE NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY 25. With regard to paragraph 198 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 197 of the Complaint as if more fully 26. Imo denies the truth of the allegations contained in paragraphs 199 through 210 of the Complaint insofar as they are directed at Imo, and otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in said paragraphs, and refers all questions of law to the Court. 5 5 of 15

6 AS TO THE TENTH CAUSE OF ACTION PUNITIVE DAMAGES 27. With regard to paragraph 211 of the Complaint, Imo repeats, reiterates and realleges each and every response as to paragraphs 1 through 210 of the Complaint as if more fully 28. Imo denies the truth of the allegations contained in paragraph 212 of the Complaint, insofar as they are directed at Imo, and otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in said paragraphs, and refers all questions of law to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 29. The Complaint fails to state a cause of action upon which relief can be granted against Imo. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 30. Plaintiff s claims are time barred by reason of the applicable statute(s) of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 31. Plaintiff s claims are barred by the operation of the doctrine of estoppel. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 32. Plaintiff has waived all claims against Imo. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 33. This Court lacks personal jurisdiction over Imo. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 34. The venue of this action is improper. 6 6 of 15

7 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 35. Plaintiff s claims are barred by the doctrines of res judicata and/or collateral estoppel. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 36. Plaintiff s speculative, uncertain and/or contingent damages have not accrued and are not recoverable. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 37. This cause of action must be dismissed in the event Plaintiff has another action pending against Imo for the same cause of action in another court. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 38. In the event Plaintiff executed a settlement agreement releasing and discharging Imo from all claims arising out of Plaintiff s alleged injury, all claims alleged by Plaintiff should be dismissed. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 39. To the extent that Plaintiff has given a release or covenant not to sue or not to enforce a judgment to an alleged co-tortfeasor of Imo, Plaintiff s claim herein is reduced to the extent of any amount stipulated by the release or covenant, in the amount of the consideration paid for it, or in the amount of the released tortfeasor s equitable share of the damages, whichever is greater. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 40. Plaintiff was not injured by exposure to Imo s products. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 41. In the event that Plaintiff was employed by any of the Defendants, Plaintiff s sole and exclusive remedy is under the Worker s Compensation Law of the State of New York. 7 7 of 15

8 AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 42. Insofar as the Complaint, and each cause of action considered separately, alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiff, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 43. Insofar as the Complaint, and each cause of action considered separately, alleges a cause of action accruing on or after 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 risk. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 44. To the extent that Plaintiff was injured as alleged in the Complaint, which Imo denies, said injury was proximately caused by the negligence, breach of warranty and/or strict liability of persons and/or entities other than Imo. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 45. To the extent that Plaintiff was injured as alleged in the Complaint, which Imo denies, such injury was the result of intervening and/or superseding acts or omissions of parties over whom Imo had no control or right to control. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 46. At all times relevant hereto, the knowledge of Plaintiff s employer(s) was superior to that of Imo with respect to possible health hazards associated with Plaintiff s employment, and, therefore, if there was any duty to warn or provide protection to Plaintiff, it 8 8 of 15

9 was the duty of said employer, not of Imo, and breach of that duty was an intervening and/or superseding cause of the injuries allegedly sustained by Plaintiff. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 47. At all times during the conduct of their corporate operations, the agents, servants and/or employees of Imo used proper methods in their production activities in conformity to the available knowledge and research of the scientific and industrial communities. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 48. To the extent that Plaintiff sustained injuries from the use of Imo products, which Imo denies, such injuries resulted from the unforeseeable misuse, abuse, alteration, modification, and/or unauthorized handling of the product by Plaintiff, or by third-parties, over whom Imo had no control or right to control. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 49. Plaintiff voluntarily assumed the risks associated with the use of or exposure to the products at issue. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 50. Imo had no knowledge or reason to know of any alleged risks associated with finished asbestos-containing products at any time during the purported peril complained of in the Complaint. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 51. Plaintiff contributed to the injuries alleged by the use of other substances, products, medications and drugs. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 52. As to all causes of action pleaded in the Complaint which are based upon expressed or implied representations, such causes of action are legally insufficient as against Imo as there was no privity of contract between Plaintiff and Imo. 9 9 of 15

10 AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 53. Plaintiff never purchased, directly or indirectly, any asbestos-containing product or materials from Imo, nor did Plaintiff ever receive or rely upon any representation allegedly made by Imo. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 54. To the extent that Plaintiff was exposed to any product manufactured by Imo, which Imo denies, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiff may have developed, thus requiring dismissal of the Complaint against Imo. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 55. Plaintiff s claims are barred because of Plaintiff s failure to join necessary and indispensable parties. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 56. To the extent that Plaintiff is entitled to damages, which Imo denies, Imo is entitled to a set-off for all Workers Compensation payments received by Plaintiff. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 57. In accordance with CPLR 1601, Imo s liability for non-economic loss is limited to its equitable share of the total liability for non-economic loss. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 58. In accordance with CPLR 4545(c), Imo is entitled to a set-off for any past or future costs or expenses incurred or to be incurred by Plaintiff for medical care, custodial care of rehabilitation services, loss of earnings or other economic loss, which has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source of 15

11 AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 59. Plaintiff s action is barred by the government contractor s defense because Imo was a contractor supplying materials, labor and or services to the United States Government. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 60. At all relevant times, the state of the medical, scientific, and industrial knowledge, the state of the art, practice, and prevailing industry standards regarding asbestoscontaining products was such that Imo neither knew, had reason to know, nor could have known of any foreseeable or significant risk or harm to Plaintiff in the normal or expected use of Imo s products. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 61. Any injuries sustained by Plaintiff resulted from Plaintiff s alleged use of or exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance with mandatory specifications established by persons or entities other than Imo, including, without limitation, agencies, agents and departments of the United States, which persons or entities possessed, at the time of such manufacture or sale, knowledge equal to or greater than that of Imo concerning the properties and characteristics of asbestos and asbestos-containing products. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 62. Any asbestos-containing Imo products were supplied according to the purchaser s or user s specifications and standards. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 63. Imo was under no legal duty to warn Plaintiff of any hazards from the use of any asbestos-containing products. The actual purchasers and/or those under the purchasers control, Plaintiff s employer(s), and the owners and lessors of the properties at which Plaintiff alleges exposure to such products, were in a far better position to warn Plaintiff and, if any such of 15

12 warning was legally required, which is expressly denied; their failure to do so was a superseding and proximate cause of Plaintiff s alleged injury. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 64. Plaintiff was reasonably and adequately warned of any alleged risks associated with the use of or exposure to asbestos-containing products. of warranty. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 65. Timely and/or proper notice was not given to Imo as to any alleged breach AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 66. To the extent Plaintiff s claims are based on an alleged breach of warranty, Plaintiff did not rely on any warranty. under the Statute of Frauds. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 67. Any oral warranties upon which Plaintiff allegedly relied are inadmissable AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE 68. Any claims by Plaintiff for exemplary and/or punitive damages are barred because such damages are not recoverable or warranted. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 69. Imo s conduct was not reckless, malicious, willful or grossly negligent, and consequently, Plaintiff is not entitled to exemplary and/or punitive damages. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 70. All defenses which have been or will be asserted by other Defendants in this action are adopted and incorporated by reference as if fully In addition, Imo will rely upon any and all other further defenses which become available or appear during of 15

13 discovery in this action and hereby specifically reserves its right to amend its answer for the purpose of asserting any such additional affirmative defenses. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE 71. This action does not fall within one or more of the exceptions set forth in CPLR 1602 and Imo is responsible only for its allocated share of any verdict that may be rendered against it. AS AND FOR A CROSS-CLAIM AGAINST EACH OF THE OTHER DEFENDANTS 72. If damages were sustained at the time(s) and place(s) set forth in the Complaint through any carelessness, recklessness and/or negligence other than that of Plaintiff, including, but not limited to, the manufacture and distribution of asbestos-containing products, breach of warranty or misrepresentations, either express or implied, and/or through strict liability in tort, such damages, in whole or in part, will have been caused and brought about by reason of the carelessness, recklessness and/or negligence of each of the other Defendants named in this action. 73. If Plaintiff should recover a judgment against Imo, by operation of law or otherwise, Imo will be entitled to judgment, contribution and/or indemnification, in whole or in part, from each of the other Defendants named in this action, their agents, servants and/or employees, by reason of their carelessness, recklessness, and/or negligence for the amount of any such recovery, in accordance with principles of law regarding apportionment of fault and damages, along with costs, disbursements and reasonable expenses of the investigation and defense of this action, including reasonable attorneys fees. WHEREFORE, Defendant Imo demands judgment dismissing the Complaint as to it, together with the costs and disbursements of this action, and, to the extent of any recovery by Plaintiff against Imo herein, further demands judgment for contribution and/or of 15

14 indemnification against each of the other defendants named in the Complaint together with Imo costs and disbursements in this action. ANSWER TO ALL CROSS-CLAIMS Imo hereby answers the cross-claims of each of the other defendants named in this action, however asserted or alleged, and says: Defendant are denied. Defendant are denied. 74. All cross-claims for contribution alleged against Imo by any party 75. All cross-claims for indemnification alleged against Imo by any party 76. All cross-claims for contractual indemnification alleged against Imo by any party Defendant are denied. WHEREFORE, Defendant Imo demands judgment in its favor and against all other Defendants and requests the Court to dismiss all cross-claims filed against Imo with prejudice and award Imo its costs, attorneys fees and disbursements in this action. Dated: New York, New York October 28, 2016 LEADER & BERKON LLP by: /s/ David J. Goodearl David J. Goodearl Attorneys for Defendant Imo Industries Inc. 630 Third Avenue New York, New York (212) of 15

15 VERIFICATION STATE OF NEW YORK ) : SS: COUNTY OF NEW YORK ) David J. Goodearl, being duly sworn, deposes and says that I am an attorney at law with the firm of Leader & Berkon, LLP, having their offices at 630 Third Avenue, in the City, County and State of New York, attorneys for defendant Imo Industries Inc., in the within action; that I have read the foregoing Verified Answer to Plaintiff s Verified Complaint, Cross- Claim and Answer to Cross-Claims of Imo Industries Inc., and know the contents thereof; that the same is true upon information and belief and I believe it to be true; that the grounds of my belief are public records, records and documents currently in my possession pertaining to this matter, and conversations with client s agents; and that the reason why this verification is made by me and not by said defendant is that said defendant s principal place of business is in Hamilton Township, New Jersey, which is located outside New York County where Leader & Berkon maintains its offices. of perjury. The undersigned affirms that the foregoing statements are true, under the penalties Dated: October 28, 2016 LEADER & BERKON LLP by: /s/ David J. Goodearl David J. Goodearl 15 of 15