FILED: ONEIDA COUNTY CLERK 01/27/ :26 PM

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONEIDA x FRANK JAKUBOWSKI and GLORIA JAKUBOWSKI, -against- Plaintiffs, A.O. SMITH WATER PRODUCTS, et al., Defendants x Index No.: EFCA DEFENDANT CRANE CO. S VERIFIED ANSWER, SEPARATE DEFENSES AND CROSS-CLAIMS TO PLAINTIFFS VERIFIED COMPLAINT Defendant CRANE CO., through its undersigned counsel, K&L Gates LLP, for its Verified Answer to Plaintiffs Verified Complaint, dated December 6, 2016, states as follows: THE PARTIES 1. Defendant CRANE CO. lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1, 2, 3 and 4 of the Verified Complaint. 2. Defendant CRANE CO. denies each and every allegation contained in paragraph 5 of the Verified Complaint, except that CRANE CO. admits that it has done business in the State of New York. 3. Defendant CRANE CO. lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Verified Complaint. 4. Defendant CRANE CO. denies each and every allegation contained in paragraph 22 of the Verified Complaint, except that CRANE CO. admits that it has done business in the State of New York. 1 of 26

2 5. Defendant CRANE CO. lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67 and 68 of the Verified Complaint. 6. Defendant CRANE CO. denies each and every allegation contained in paragraphs 69, 70, 71, 72, 73, 74, 75 and 76 of the Verified Complaint, except that CRANE CO. admits that it has done business in the State of New York. ANSWERING THE FIRST CAUSE OF ACTION 7. In response to paragraph 77 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 76 of the Verified Complaint as if fully set forth herein. 8. Defendant CRANE CO. denies each and every allegation contained in paragraphs 78, 79, 80, 81, 82 (a) - (m), 83, 84 and 85 of the Verified Complaint. ANSWERING THE SECOND CAUSE OF ACTION 9. In response to paragraph 86 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 85 of the Verified Complaint as if fully set forth herein. 10. Defendant CRANE CO. denies each and every allegation contained in paragraphs 87, 88, 89 and 90 of the Verified Complaint. ANSWERING THE THIRD CAUSE OF ACTION 11. In response to 91 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 90 of the Verified Complaint as if fully set forth herein of 26

3 12. Defendant CRANE CO. denies each and every allegation contained paragraphs 92, 93, 94, 95, 96, 97, 98, 99 and 100 of the Verified Complaint. ANSWERING THE FOURTH CAUSE OF ACTION 13. In response to paragraph 101 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 100 of the Verified Complaint as if fully set forth herein. 14. Defendant CRANE CO. denies each and every allegation contained paragraphs 102, 103, 104, 105, 106, 107, 108, 109, 110, 111 (a) - (f), 112, 113, 114, 115, 116, 117, 118 and 119 of the Verified Complaint. ANSWERING THE FIFTH CAUSE OF ACTION 15. In response to paragraph 120 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 119 of the Verified Complaint as if fully set forth herein. 16. Defendant CRANE CO. lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 121, 122, 123, 124, 125, 126 and 127 of the Verified Complaint. ANSWERING THE SIXTH CAUSE OF ACTION 17. In response to paragraph 128 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 127 of the Verified Complaint as if fully set forth herein. 18. Defendant CRANE CO. denies each and every allegation contained paragraphs 129, 130, 131, 132, 133, 134, 135, 136 (i) - (iii), 137, 138, 139, 140, 141, 142 and 143 of the Verified Complaint of 26

4 ANSWERING THE SEVENTH CAUSE OF ACTION 19. In response to paragraph 144 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 143 of the Verified Complaint as if fully set forth herein. 20. Defendant CRANE CO. denies each and every allegation contained paragraphs 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156 and 157 of the Verified Complaint. ANSWERING THE EIGHTH CAUSE OF ACTION 21. In response to paragraph 158 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 157 of the Verified Complaint as if fully set forth herein. 22. Insofar as the allegations contained in paragraphs 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172 and 173 of the Verified Complaint do not pertain to Defendant CRANE CO., no response is required nor made thereto. Inasmuch as the allegations may be construed as pertaining to Defendant CRANE CO., CRANE CO. denies each and every allegation contained in paragraphs 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172 and 173 of the Verified Complaint. ANSWERING THE NINTH CAUSE OF ACTION 23. In response to paragraph 174 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 173 of the Verified Complaint as if fully set forth herein of 26

5 24. Defendant CRANE CO. denies each and every allegation contained paragraphs 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185 and 186 of the Verified Complaint. ANSWERING THE TENTH CAUSE OF ACTION 25. In response to paragraph 187 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 186 of the Verified Complaint as if fully set forth herein. 26. Defendant CRANE CO. denies each and every allegation contained paragraph 188 of the Verified Complaint. ANSWERING THE ELEVENTH CAUSE OF ACTION 1. In response to paragraph 189 of the Verified Complaint, Defendant CRANE CO. repeats and re-alleges the answers contained in response to paragraphs 1 through 188 of the Verified Complaint as if fully set forth herein. 2. Defendant CRANE CO. lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 190 and 191 of the Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE This Court did not acquire personal jurisdiction over CRANE CO. due to insufficiency of service of process. AS AND FOR A SECOND AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter of this action of 26

6 granted. AS AND FOR A THIRD AFFIRMATIVE DEFENSE In whole or in part, the Verified Complaint fails to state a claim upon which relief can be AS AND FOR A FOURTH AFFIRMATIVE DEFENSE The Verified Complaint fails to contain allegations about, concerning, or directed at CRANE CO. and therefore fails to state a claim against CRANE CO. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE There is no justiciable issue or controversy. parties. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred because of their failure to join necessary and indispensable AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE To the extent that any Plaintiffs herein seek to maintain a claim for relief on behalf of any decedent, such Plaintiffs lack authority, capacity and/or standing to maintain such claim for relief against CRANE CO., including, but not limited to, the failure to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estates Powers and Trusts Law to AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE Venue is improper in this county of 26

7 AS AND FOR A NINTH AFFIRMATIVE DEFENSE The Claims asserted in the Verified Complaint are barred by the doctrines of laches and estoppel and waiver in that CRANE CO. has been substantially prejudiced by delay in filing of this action. AS AND FOR A TENTH AFFIRMATIVE DEFENSE The injuries and damages alleged in the Verified Complaint were caused, in whole or in part, by the negligence or other culpable conduct of the Plaintiffs, defendants, and/or non-parties, which conduct constituted a supervening cause of the alleged injuries and damages. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE Insofar as the Verified Complaint and each cause of action considered separately allege a cause of action occurring before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of the risk. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Insofar as the Verified Complaint is premised upon claims accruing on or after the adoption of the comparative fault standard to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to any Plaintiffs or and defendant other than CRANE CO., including contributory negligence and assumption of the risk, in the proportion to which culpable conduct attributable to any other party bears to the culpable conduct which caused the damages of 26

8 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE The injuries and damages alleged by the Plaintiffs were caused, in whole or in part, by the negligence or other culpable conduct of one or more persons or instrumentalities over which CRANE CO. had no control, is not responsible, and with whom it had no legal relationship. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Any and all risks, hazards, defects, or dangers, alleged by Plaintiffs were either (i) open, obvious and apparent, natural and inherent, and known or should have been known to the named plaintiff, or (ii) not within the knowledge of CRANE CO., and, therefore, all such risks, hazards, defects and dangers were assumed. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE The lawsuit was not commenced by the Plaintiffs within the time prescribed by law and the Plaintiffs, therefore, are barred from recovery pursuant to applicable statutes of limitations. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE All claims brought under New York Law, L c. 682 Section 4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs causes of action against CRANE CO. are barred or limited by and pursuant to 10, 11, and 29 of the Workers Compensation Law of the State of New York of 26

9 AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE To the extent that any alleged injury occurred in the context of an employer - employee relationship, this action is barred by virtue of the provisions of the Workers Compensation Law, including, but not limited to, the Omnibus Workers Compensation Reform Act, which amended 11 of the Workers Compensation Law and the lack of a grave injury on the part of the named plaintiffs. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE Any alleged acts or omissions of CRANE CO. were not a proximate cause of any injuries or damages as alleged by Plaintiffs. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE Any asbestos-containing product associated with a CRANE CO. product that may have been present at Plaintiffs job locations were placed in any such location upon specification, approval, or at the instruction of governmental or legislative agencies or bodies. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs claims are barred to the extent CRANE CO., in manufacturing, distributing, and selling its products, followed the plans, specifications, and contracts set by a governmental body and did not deviate from said plans, specifications and contracts. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE Any injuries or damages claimed by Plaintiffs that allegedly arose from exposure to asbestos-containing products associated with equipment allegedly manufactured by CRANE CO of 26

10 (the "Equipment"), were caused, in whole or in part, by the improper use and operation of the Equipment, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Equipment by CRANE CO. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE Any injuries or damages claimed by Plaintiffs that allegedly arose from the Equipment were caused by the alteration, misuse and/or improper maintenance of the Equipment by one or more persons or instrumentalities other than CRANE CO., rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Equipment by CRANE CO. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE The Equipment was not defective or dangerous at any time when defendant CRANE CO. had possession or control of it. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE CRANE CO. did not give, make, or otherwise extend warranties, whether express or implied, upon which Plaintiffs can rely. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs claims have been revived by amendments to New York s Civil Practice Law and Rules, such claims can be no greater than what they were at the time when they originally accrued. Therefore, Plaintiffs cannot rely on the doctrine of strict liability in tort, and Plaintiffs warranty claims are barred for lack of privity of 26

11 AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE Any claims by Plaintiffs for breach of warranty are barred because there was a failure to comply with the terms and conditions of any claimed warranty, including, but not limited to failure to give proper notice, lack of duty, and compliance with any applicable provisions of the Uniform Commercial Code. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE Any alleged oral warranties alleged by Plaintiffs are unavailable as violative of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE Any injuries or damages claimed by Plaintiffs that allegedly arose from the use of a product alleged to contain asbestos, which is specifically denied, Plaintiffs, Plaintiffs decedents, other defendants or other parties not under the control of CRANE CO. misused, abused, misapplied and otherwise mishandled the product alleged to contain asbestos. Therefore, the amount of damages that may be recoverable must be diminished by the proportion that said misuse, abuse, misapplication, and mishandling bears to the conduct which caused the alleged damage or injury. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE The allegations set forth in the Verified Complaint do not state a claim against CRANE CO. to the extent that Plaintiffs rely upon the doctrines of market share, alternate liability, or any other theory providing for liability without proof of causation of 26

12 AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE In the event it should be proven at the time of trial that all the defendants are subject to market share liability, then CRANE CO.'s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and CRANE CO. would be entitled to contribution, either in whole or in part, from co-defendants. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE The asbestos-containing products alleged in the Verified Complaint are products within the meaning and scope of the Restatement of Torts Section 402A and as such the Verified Complaint fails to state a cause of action in strict liability. to Plaintiff. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE CRANE CO. owed no duty to Plaintiffs or performed each and every duty, if any, owing AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE CRANE CO. had no knowledge or reason to know of any alleged risks associated with asbestos and/or asbestos-containing products at any time during the periods complained of. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE The Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from CRANE CO of 26

13 AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE CRANE CO. specifically denies that the Plaintiffs used or was exposed to any asbestoscontaining product manufactured, supplied, or specified for use by CRANE CO.; therefore, CRANE CO. is not liable for any injuries or damage claimed by Plaintiffs. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE If CRANE CO. incorporated into its products any asbestos-containing materials supplied by others, any asbestos fibers within such materials were fully encapsulated, were not friable, and would not and did not cause the injuries or damages alleged. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE Any injuries or damages claimed by Plaintiffs that allegedly arose from an exposure to asbestos that was in any way associated with a product manufactured by CRANE CO., which is specifically denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease as alleged in the Verified Complaint and not actionable at law or equity. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE Any exposure to asbestos fibers that may, in any way, be associated with a product manufactured by CRANE CO., which is specifically denied, is so minimal as to be insufficient to establish to a reasonable degree of probability that such exposures are capable of causing injury or damages and must be considered speculative as a matter of law of 26

14 AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE If CRANE CO. was on notice of any hazard or defect for which the Plaintiffs seek relief, which is specifically denied, the named Plaintiffs also had such notice and is thereby barred from recovery. contingent. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE The claims for damages have not accrued, are purely speculative, uncertain and AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE None of the alleged injuries or damages was foreseeable during any time periods at issue as alleged in the Verified Complaint. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE The alleged injuries suffered by the Plaintiffs are due to an idiosyncratic reaction, and as such, CRANE CO. is not responsible for such injuries. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE CRANE CO. was not under any duty to warn purchasers, those who performed work, or those under their control, who were in a better position to warn; if warning was required, their failure to do so was a superseding proximate cause of injury of 26

15 AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE The named Plaintiffs were warned of risks associated with exposure from use of asbestos-containing materials. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred as a matter of public policy, because social utility and benefit of asbestos-containing products outweighed the risk. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs failed to take reasonable steps to mitigate any alleged injuries or damages; CRANE CO. bears no liability for damages or injuries that would otherwise have been avoided or prevented. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE The allegations set forth in the Verified Complaint do not state a claim against CRANE CO. that will authorize or entitle Plaintiffs to recover punitive or exemplary damages. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek punitive damages against CRANE CO., such damages are improper, unwarranted, not authorized by law, and are unconstitutional in the context of this litigation. Subjecting CRANE CO. to multiple trials and multiple imposition of punitive damages for the same alleged course of conduct is a violation of both substantive and procedural due process under the United States Constitution and the Constitution of the State of New York. The standard for the imposition of an award for punitive damages is constitutionally void for of 26

16 vagueness. Also, the imposition of an award for punitive damages in the context of this litigation results in an unconstitutional denial of due process. AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek punitive damages against CRANE CO., the award of such damages in this litigation are barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE The injuries allegedly suffered by the Plaintiffs, if any and which are specifically denied, were the result of culpable conduct or fault of third persons for whose conduct CRANE CO. is not legally responsible, and the damages recovered by the plaintiffs, if any, should be diminished or reduced in the proportion to which the culpable conduct bears on the total culpable conduct causing the damages. Any liability on the part of CRANE CO., which liability is specifically denied, is fifty-percent or less of the liability of all persons who are the cause of the alleged injuries, if any, and the liability of CRANE CO. for non-economic loss does not exceed CRANE CO. s equitable share of the liability determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss pursuant to CPLR 1601 through of 26

17 AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE This action does not fall within one or more of the exceptions set forth in CPLR 1602 and CRANE CO. is responsible only for its pro rata share of any verdict that may be rendered against it. AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE In the event of any judgment or verdict on behalf of the Plaintiffs, CRANE CO. is entitled to a set-off of the verdict by the amount of any payments made to the Plaintiffs for medical and other expenses prior or subsequent thereto pursuant to CPLR AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE Any verdict or judgment against any defendant, including CRANE CO., is entitled to a reduction pursuant to General Obligations Law , on the basis of any and all prior settlements and compromises. AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE At all times relevant to this litigation, this defendant complied with all applicable law, regulations and standards. AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE That at all times relevant to Plaintiffs allegations, the agents, servants and/or employees of CRANE CO. utilized proper methods in the conduct of its operations, in conformity with the available knowledge, research, and state of the art of the scientific and industrial communities of 26

18 AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE That at all times relevant to Plaintiffs allegations, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable, unsafe, inherently dangerous, or hazardous character or nature of asbestos-containing material when used in the manner and purpose arising from the allegations of the Verified Complaint and, therefore, there was no duty owed on the part of CRANE CO. to know of any such character or nature or to warn or protect Plaintiff or others similarly situated. AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE The named Plaintiffs contributed to the illnesses alleged, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE Some or all of the causes of action may not be maintained because of arbitration and award, collateral estoppel, a discharge in bankruptcy, infancy (or some other disability) of the Plaintiffs, payment and release, and/or res judicata. AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE The damages allegedly sustained by the plaintiffs were caused, in whole or in part, through the operation of nature of 26

19 AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE All defenses which have been or will be asserted by other defendants and/or any 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, CRANE CO. will rely upon any and all other 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-SECOND AFFIRMATIVE DEFENSE To the extent that Plaintiffs allege successor-in-interest liability, CRANE CO. denies that is liable for any alleged wrongdoing by any alleged predecessor entities. AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE At all relevant times, Plaintiffs and Plaintiffs employers were sophisticated users of asbestos, therefore, CRANE CO. had no duty to warn Plaintiffs. AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs failed to plead any basis for claims of misrepresentation, deliberate concealment or fraud against CRANE CO. and have failed to plead any such claims with the specificity required by the CPLR of 26

20 AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE CRANE CO. denies that it willfully, wantonly, or intentionally withheld or prevented the dissemination of information concerning the alleged hazards of asbestos products and further denies that was guilty of fraudulent misrepresentations to the Plaintiffs and members of the general public, and further denies that it conspired with anyone to withhold such information from the Plaintiffs and other members of the general public. AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE CRANE CO. had no knowledge or reason to know of any other defendant's knowledge or actions and therefore bears no liability for other parties or non-parties who may have acted in concert. AS AND FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE CRANE CO. is entitled to rely on the learned intermediary defense. AS AND FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE The Plaintiffs employers, their agents, servants, employees and/or directors failed to act in a manner consistent with an employer's non-delegable duties as established by Occupational Safety & Health Administration and the New York State Department of Labor, thus proximately causing the alleged injuries and damages, if any, claimed by the Plaintiffs in this case. Such failure on the part of Plaintiffs employers includes, but is not limited to: (a) Failure to adequately train the Plaintiff on how to safely utilize equipment, as an ordinary prudent employer would have done in similar circumstances; (b) Failure to adequately disseminate product information as to the safe use of equipment as an ordinary prudent employer would have done in like or similar circumstances; of 26

21 (c ) Failure to timely establish a written respiratory protection program; (d) Failure to provide properly trained supervisors for the Plaintiffs work crews; (e) Failure to provide appropriate ventilation equipment and respiratory protection equipment; and (f) Failure to provide proper filtering and monitoring devices for air-fed respiratory protection equipment. AS AND FOR A SIXTY-NINTH AFFIRMATIVE DEFENSE The injuries allegedly suffered by the Plaintiffs, if any and which are specifically denied, were the result of culpable conduct or fault of Plaintiffs Merchant Mariner employer for whose conduct CRANE CO. is not legally responsible, and the damages recovered by the Plaintiffs, if any, should be diminished or reduced in the proportion to which the culpable conduct bears on the total culpable conduct causing the damages as defined by the Merchant Mariner Act of AS AND FOR A SEVENTIETH AFFIRMATIVE DEFENSE Plaintiff is barred from maintaining this action against CRANE CO. under the provisions of the Longshore and Harbor Workers Compensation Act, 33 U.S.C. 901 et. seq of 26

22 AS AND FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE Any orders of any bankruptcy court that prevents CRANE CO. from joining indispensable parties who have declared bankruptcy, cause CRANE CO. to defend this action without the bankrupt parties as co-defendants and prevent the triers of fact from hearing and judging all the relevant evidence and, as such, are unconstitutional and otherwise improper. remedies. AS AND FOR A SEVENTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs may not maintain their claims as they have failed to exhaust their administrative AS AND FOR A SEVENTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs claims are barred to the extent that CRANE CO., in manufacturing, distributing, and selling it products, followed the plans, specifications, design, and contract set forth by the premises owner and/or Plaintiffs employer. AS AND FOR A SEVENTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred because Plaintiffs employer and/or the premises owner was a sophisticated user which constitutes intervening/superseding cause of the alleged injuries and damages. AS AND FOR A SEVENTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred because Plaintiffs employer and/or the premises owner had a duty to provide a safe work place for its employees, invites, and guests, including the plaintiff of 26

23 AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS, CRANE CO. ALLEGES AS FOLLOWS: That if the Plaintiffs sustained the injuries and damages in the manner and at the time and place(s) alleged, and if it is found that CRANE CO. is liable to Plaintiffs herein, all of which is specifically denied, then CRANE CO., on the basis of apportionment of responsibility for the alleged occurrence, is entitled to contribution from the co-defendants, to pay for all or part of any verdict or judgment that Plaintiffs may recover against CRANE CO. proportionate to the codefendants percentage of liability. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS, CRANE CO. ALLEGES AS FOLLOWS: That if the Plaintiffs sustained the injuries and damages in the manner and at the time and place(s) alleged, and if it is found that CRANE CO. is liable to Plaintiffs herein, all of which is specifically denied, then CRANE CO., on the basis of contractual and common law indemnification, is entitled to recovery from the co-defendants to pay for all or part of any verdict or judgment that Plaintiffs may recover against CRANE CO. ANSWERS AND AFFIRMATIVE DEFENSES TO CROSS CLAIMS 1. In answer to any cross-claims filed or which may be filed in the future by any and all other parties to these proceedings, Crane Co. denies all allegations asserted, or to be asserted, against it that allege that Plaintiffs were exposed to asbestos from a Crane Co. product or that such exposure caused Plaintiffs injuries. Crane Co. further denies each and every allegation of facts and conclusions of law in such actions. Crane Co further denies that any party to this action is entitled to any relief from Crane Co., either directly or indirectly, by way of indemnification, lien, contribution, contract or otherwise of 26

24 2. Crane Co. re-alleges and incorporates by reference all of its affirmative defenses to the Verified Complaint as set forth in Crane Co. s Verified Answer to Plaintiffs Verified Complaint. WHEREFORE, Defendant CRANE CO. requests judgment in its favor dismissing the Verified Complaint with prejudice, judgment in its favor diminishing the damages otherwise recoverable pursuant to Article 14, 14-A and Article 16 of the New York CPLR, judgment in its favor and against all co-defendants for all or part of any sum awarded in favor of the plaintiff and against CRANE CO., and for such other and further relief as the Court may deem just and proper. Dated: New York, New York January 27, 2017 K&L GATES LLP Attorneys for Defendant Crane Co. By: /s/ Kirsten Alford Kneis Kirsten Alford Kneis 599 Lexington Avenue New York, New York (212) of 26

25 ATTORNEY S VERIFICATION The undersigned affirms the following statement to be true under penalties of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules. That she is an attorney at law and a member of the firm of K&L Gates LLP, attorneys for the Defendant, Crane Co. That she has read the foregoing document and knows the contents thereof, and that the same is true to the knowledge of the affirmant except as to the matters therein alleged upon information and belief and that as to those matters she believes them to be true. That the reason why this affirmation is being made by the affirmant and not the defendant is that the defendant is a foreign corporation and does not maintain an office with an officer having knowledge of the facts in the county where the law firm for the defendant maintains its offices. That the source of the affirmant s information and the grounds of her belief as to all the matters therein alleged upon information and belief, are reports from and communication had with said corporation. Dated: New York, New York January 27, 2017 /s/ Kirsten Alford Kneis KIRSTEN ALFORD KNEIS of 26

26 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Defendant Crane Co. s Answer, Separate Defenses and Cross-Claims to Plaintiffs Verified Complaint was electronically filed on January 27, 2017 and is available for viewing and downloading from the Court s Electronic Filing System. /s/ Kirsten Alford Kneis Kirsten Alford Kneis, Esq. Attorney for Defendant Crane Co of 26