FILED: NEW YORK COUNTY CLERK 05/12/2014 INDEX NO. 190087/2014 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/12/2014 SUPREME COURT OF THE STATE OF NEW YORK ALL COUNTIES WITHIN NEW YORK CITY ------------------------------------------------------------------------X In Re: NEW YORK CITY ASBESTOS LITIGATION ------------------------------------------------------------------------X WALTER MILLER, -against- Plaintiff(s), ATK LAUNCH SYSTEMS GROUP, et al., Defendants. -------------------------------------------------------------------------X NYCAL Index No. 190087/2014 VWGoA S ANSWER TO PLAINTIFF S VERIFIED COMPLAINT VOLKSWAGEN GROUP OF AMERICA, INC. ( VWGoA ), by its attorneys, Herzfeld & Rubin, P.C., 125 Broad Street, New York, New York 10004, as and for its Answer to Plaintiff s Verified Complaint, alleges upon information and belief as follows: AS TO PLAINTIFF S VERIFIED COMPLAINT 1. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 of the Plaintiff s Verified Complaint. 2. Denies each and every allegation contained in paragraph 28 of the Plaintiff s Verified Complaint, except states that VWGoA is authorized to conduct business in the State of New York. 3. Denies each and every allegation contained in paragraph 29 of the Plaintiff s Verified Complaint, except states that VWGoA is authorized to, and does, conduct business in the State of New York.
4. Repeats and realleges each and every response to NYCAL Karst & von Oiste, LLP Standard Complaint for Personal Injury No. 1 below with the same force and effect as if fully set forth at length herein. AS TO PLAINTIFF S STANDARD COMPLAINT FOR PERSONAL INJURY NO. 1 5. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 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, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 294, 305, 319, 329, 336, 346, 356, 358, 359, 360, 361, 2
362, 363, 364, 366 and 367 of Plaintiff s Standard Complaint for Personal Injury No. 1. 6. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph 247, 272, 277, 293, 324, 331, 351 and 354 of Plaintiff s Standard Complaint for Personal Injury No. 1, except specifically denies each and every allegation as concerns or relates to VWGoA, and refers all questions of law to the Court. 7. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph 3 of Plaintiff s Standard Complaint for Personal Injury No. 1, except specifically denies each and every allegation as concerns or relates to VWGoA, but states that VWGoA is authorized to conduct business in the State of New York. 8. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 241, 242, 243, 244, 245, 246, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 274, 275, 276, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 296, 297, 298, 299, 300, 301, 302, 303, 304, 306, 307, 308, 309, 310, 312, 313, 314, 315, 316, 317, 318, 320, 321, 322, 323, 326, 327, 328, 330, 332, 333, 334, 335, 337, 338, 339, 340, 341, 342, 343, 344, 345, 348, 349, 350, 352, 353 and 355 of Plaintiff s Standard Complaint for Personal Injury No. 1, except specifically denies each and every allegation as concerns or relates to VWGoA. 9. With respect to the allegations contained in paragraphs 248, 259, 273, 278, 295, 311, 325, 347, 357 and 365, VWGoA repeats and realleges its responses to the respective allegations of Plaintiff s Standard Complaint for Personal Injury No. 1 referred to therein 3
as if the same were fully set forth at length herein. FIRST AFFIRMATIVE DEFENSE 10. The Complaint fails to state a cause of action as against VWGoA. SECOND AFFIRMATIVE DEFENSE 11. Upon information and belief, at all times relevant, any products manufactured, distributed or sold by VWGoA did not emit or create any hazardous or harmful substance to which Plaintiff could have been exposed. THIRD AFFIRMATIVE DEFENSE 12. If Plaintiff sustained any of the injuries, losses and damages complained of in the Complaint, such injuries, losses and damages were caused and brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault, want of care, or other culpable conduct of Plaintiff, non-parties or parties to this action other than VWGoA and for whose acts, omissions or breach of legal duty VWGoA is not liable. FOURTH AFFIRMATIVE DEFENSE 13. Upon information and belief, that any recovery herein by the Plaintiff, if any, must be diminished and reduced in the proportion which the said culpable conduct of the Plaintiff bears to the alleged culpable conduct of the defendants, if any, which allegedly caused said injuries, losses and damages. FIFTH AFFIRMATIVE DEFENSE 14. To the extent that the injuries and/or illnesses of Plaintiff, if any, were caused or contributed to, in whole or in part, by intervening and superseding causative factors, the claims of Plaintiff against VWGoA should be barred. 4
SIXTH AFFIRMATIVE DEFENSE 15. In the event that any person or entity liable or claimed to be liable for the injuries alleged in this action has been given or may hereafter be given a release or covenant not to sue, VWGoA will be entitled to a reduction of any damages which may be determined to be due against VWGoA. SEVENTH AFFIRMATIVE DEFENSE 16. To the extent that the Complaint herein and the claims made by Plaintiff were not commenced within the time limited by law, the Complaint is barred by the Statute of Limitations. EIGHTH AFFIRMATIVE DEFENSE 17. Upon information and belief, that insofar as the Plaintiff alleges, as against VWGoA, any willful and wanton misconduct, and that it allegedly knowingly and intentionally sold a product or products that it knew to be unreasonably dangerous, all of which said defendant denies, any such cause of action or causes of action accrued more than one year prior to the commencement of this lawsuit and are time-barred by the one-year Statute of Limitations. NINTH AFFIRMATIVE DEFENSE 18. To the extent that the Plaintiff alleges rights hereunder allegedly derived from oral warranties or undertakings on the part of VWGoA, the Complaint is barred by the applicable Statute of Frauds. TENTH AFFIRMATIVE DEFENSE 19. To the extent that the causes pleaded by Plaintiff herein fail to accord with the Uniform Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint is barred. 5
ELEVENTH AFFIRMATIVE DEFENSE 20. To the extent that the use, application, employment, surrounding conditions, safety precautions and other circumstances attendant upon the product(s) allegedly used by the Plaintiff were determined, controlled, selected or limited by Plaintiff, Plaintiff s employer(s) or by others for whose acts, omissions, or breach, VWGoA is not liable, the Complaint is barred, in whole or in part. TWELFTH AFFIRMATIVE DEFENSE 21. The employer(s) of the Plaintiff, and Plaintiff, were sophisticated purchasers that developed all responsibility for the use of the products referred to in the Complaint. THIRTEENTH AFFIRMATIVE DEFENSE 22. To the extent that the injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Worker s Compensation statutes and shall have constituted an industrial disability, then the exclusive remedy, if any, shall lie within the terms and ambit of said statutes. FOURTEENTH AFFIRMATIVE DEFENSE 23. Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty- Eight Insulations, Standard Insulations, Celotex, Owens-Corning Fiberglas, etc., and all other entities in Bankruptcy relating thereto, would be in violation of said defendant s constitutional rights. FIFTEENTH AFFIRMATIVE DEFENSE 24. Any recovery by the Plaintiff herein must be reduced by collateral source payments pursuant to Civil Practice Laws and Rules section 4545. SIXTEENTH AFFIRMATIVE DEFENSE 25. If Plaintiff sustained any damages, the liability of VWGoA, if any, is limited by Civil Practice Laws and Rules section 1601, et seq. 6
SEVENTEENTH AFFIRMATIVE DEFENSE 26. To the extent that Plaintiff seeks punitive damages against VWGoA, those damages are improper and unwarranted, not authorized by law, prohibited by the terms of the New York Case Management Order herein, and are unconstitutional. Subjecting said defendant to multiple trials and the multiple impositions of punitive damages for a single 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. Furthermore, the standard governing the award of punitive damages is constitutionally void for vagueness. EIGHTEENTH AFFIRMATIVE DEFENSE 27. Any demand for punitive damages is barred by Article 1, Section 5, of the New York State Constitution prohibiting the imposition of excessive fines as well as the applicable federal constitutional standards relating thereto. NINETEENTH AFFIRMATIVE DEFENSE 28. Any demand for punitive damages is barred by the double jeopardy clauses of the Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment and Article 1, Section 6, of the New York State Constitution. TWENTIETH AFFIRMATIVE DEFENSE 29. If Plaintiff has sustained any injuries as a result of the use of asbestos and asbestoscontaining products, which VWGoA specifically denies, then such damages were due to products of other entities not named as defendants in this action and, in the absence of these necessary and indispensable entities being named a party, complete relief cannot be afforded among those already parties to this suit. 7
TWENTY-FIRST AFFIRMATIVE DEFENSE 30. At all times relevant, the accepted state of medical and scientific knowledge recognized that persons working with and/or exposed to friction products were not at an increased risk for injury and/or disease, and, therefore, plaintiff s claims against VWGoA are barred. TWENTY-SECOND AFFIRMATIVE DEFENSE 31. VWGoA 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. CROSS-CLAIMS 32. VWGoA asserts a claim for contribution and indemnification against codefendant(s). If the Plaintiff was caused to sustain injuries and damages at the time and place and in the manner alleged in the Complaint, said injuries and damages were caused by reason of the carelessness, recklessness and negligence and/or affirmative acts or omission of co-defendant(s) and, in the event, VWGoA is entitled to contribution and indemnification in part or whole by any or all co-defendant(s). ANSWER TO CROSS-CLAIMS 33. VWGoA denies any and all cross-claims for contribution and indemnification now or hereafter asserted against VWGoA; asserts all defenses including those set forth above; and avers that it is not liable to plaintiff, co-defendants, any third-party defendants or others. 8
WHEREFORE, defendant VOLKSWAGEN GROUP OF AMERICA, INC. demands judgment dismissing the Complaint as against it, together with the costs and disbursements of this action and such other and further relief as this Court deems just and proper. Dated: New York, New York May 13, 2014 HERZFELD & RUBIN, P.C. By: /s Adrianne Joy Leven Adrianne J. Leven, Esq. Michael B. Sena, Esq. Patrick A. Florentino, Esq. 125 Broad Street New York, New York, 10004 Tel: (212) 471-8500 Attorneys for Defendant Volkswagen Group of America, Inc. TO: Doug von Oiste, Esq. Karst & von Oiste, LLP 19500 State Hwy 249 Suite 420 Houston, Texas 77070 Tel: (281) 970-9988 Attorneys for Plaintiff Walter Miller -and- All Known Defense Counsel Service of this Verified Answer was made on all parties by way of the Electronic Court Filing System ( ECF ). 9
SUPREME COURT OF THE STATE OF NEW YORK ALL COUNTIES WITHIN NEW YORK CITY -----------------------------------------------------------------------------X In Re: NEW YORK CITY ASBESTOS LITIGATION -----------------------------------------------------------------------------X WALTER MILLER, -against- Plaintiff(s), ATK LAUNCH SYSTEMS GROUP, et al., NYCAL Index No. 190087/2014 VERIFICATION Defendants. -----------------------------------------------------------------------------X ADRIANNE JOY LEVEN, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms under information and belief that following is true and correct: 1. I am an associate at the law firm of Herzfeld & Rubin, P.C., 125 Broad Street, New York, New York 10004, attorneys for defendant, VOLKSWAGEN GROUP OF AMERICA, INC., in the above-captioned action. 2. I have read the annexed Answer and am familiar with the contents. The same is true to my own knowledge except as to the matters stated therein to be alleged upon information and belief, and as to those matters I believe to be true. 3. The grounds of my belief as to the matters stated within the Answer are based upon the files in my office, any investigation caused to be made, reports and communications with the defendant in this action. 10
4. This verification is made pursuant to CPLR 3020(d)(3) in that defendant, VOLKSWAGEN GROUP OF AMERICA, INC, is a foreign corporation. Dated: New York, New York May 12, 2014 /s Adrianne Joy Leven Adrianne J. Leven, Esq. 11