SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- x IN RE NEW YORK CITY ASBESTOS LITIGATION NYCAL -------------------------------------------------------------------- x LEROY BAKER, Index No: 190058/2017 - against - Plaintiff, AF SUPPLY USA INC, et al, EASCO BOILER CORP S VERIFIED ANSWER TO THIRD AMENDED VERIFIED COMPLAINT Defendants -------------------------------------------------------------------- x Defendant Easco Boiler Corp ( Easco ), individually and as successor to AL Eastmond & Sons Inc, incorrectly named in the Third Amended Verified Complaint ( Complaint ) as AL Eastmond & Sons a/k/a Easco Boiler Corp, by its attorneys, Day Pitney LLP, for its response to the Complaint of plaintiff Leroy Baker ( Plaintiff ), says: 1 Easco does not respond to the allegations contained in paragraph 1 of the Complaint inasmuch as they do not call for a response 2 Easco denies the allegations contained in paragraph 2 of the Complaint to the extent that they pertain to Easco, except it admits that it has conducted business in the City and State of New York, and it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 2 of the Complaint 3-8 Easco denies the allegations contained in paragraphs 3 through 8 of the Complaint to the extent that they pertain to Easco, and it is without knowledge or information 1 of 16
sufficient to form a belief as to the truth of the remaining allegations contained in paragraphs 3 through 8 of the Complaint FIRST CAUSE OF ACTION Easco repeats and makes a part hereof its responses to paragraphs 1 through 8 as if fully set forth at length herein 9-34 Easco denies the allegations contained in paragraphs 9 through 34 of the Complaint to the extent that they pertain to Easco, and it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraphs 9 through 34 of the Complaint SECOND CAUSE OF ACTION Easco repeats and makes a part hereof its responses to paragraphs 1 through 34 as if fully set forth at length herein 35-38 Easco denies the allegations contained in paragraphs 35 through 38 of the Complaint to the extent that they pertain to Easco, and it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraphs 35 through 38 of the Complaint THIRD CAUSE OF ACTION Easco repeats and makes a part hereof its responses to paragraphs 1 through 38 as if fully set forth at length herein - 2-2 of 16
39-40 Easco denies the allegations contained in paragraphs 39 and 40 of the Complaint to the extent that they pertain to Easco, and it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraphs 39 and 40 of the Complaint FOURTH CAUSE OF ACTION 41 Easco repeats and makes a part hereof its responses to paragraphs 1 through 40 as if fully set forth at length herein 42-67 Easco denies the allegations contained in paragraphs 42 through 67 of the Complaint to the extent that they pertain to Easco, and it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraphs 42 through 67 of the Complaint FIFTH CAUSE OF ACTION 68 Easco repeats and makes a part hereof its responses to paragraphs 1 through 67 as if fully set forth at length herein 69 Easco does not respond to the allegations contained in paragraph 69 of the Complaint inasmuch as they do not call for a response 70-81 Easco denies the allegations contained in paragraphs 70 through 81 of the Complaint to the extent that they pertain to Easco, and it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraphs 70 through 81 of the Complaint - 3-3 of 16
SIXTH CAUSE OF ACTION 82 Easco repeats and makes a part hereof its responses to paragraphs 1 through 81 as if fully set forth at length herein 83-94 Easco denies the allegations contained in paragraphs 83 through 94 of the Complaint to the extent that they pertain to Easco, and it is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraphs 83 through 94 of the Complaint SEPARATE DEFENSES Without admitting that Easco has the burden of proof or production, Easco asserts the following separate defenses: FIRST SEPARATE DEFENSE Easco was free of any and all negligence SECOND SEPARATE DEFENSE Easco acted reasonably and with due care was not violated by Easco THIRD SEPARATE DEFENSE Easco owed no duty to Plaintiff In the alternative, if any duty was owed, that duty - 4-4 of 16
FOURTH SEPARATE DEFENSE The injuries and damages alleged by Plaintiff were the proximate result of wrongdoing of third parties over whom Easco had no control including, but not limited to, fellow servants of Plaintiff FIFTH SEPARATE DEFENSE Plaintiff s fault was greater than any alleged fault of Easco and, accordingly, Plaintiff is barred from recovery SIXTH SEPARATE DEFENSE The sole proximate cause of the incident and injuries complained of by Plaintiff was the unauthorized, unintended and improper use of the product by Plaintiff SEVENTH SEPARATE DEFENSE Plaintiff s recovery is reduced pursuant to CPLR 1411 EIGHTH SEPARATE DEFENSE Plaintiff s recovery is limited pursuant to CPLR 1601 NINTH SEPARATE DEFENSE To the extent that Plaintiff asserts claims against Easco arising under the New York General Municipal Law, such claims must be dismissed insofar as they seek recovery based upon supposed violations of laws, statutes, rules or regulations that do not apply Easco - 5-5 of 16
TENTH SEPARATE DEFENSE Plaintiff s action should be dismissed or stayed because it should be heard in a forum outside the State of New York pursuant to the doctrine of forum non conveniens ELEVENTH SEPARATE DEFENSE If Easco supplied asbestos-containing products to Plaintiff or his employers, which is specifically denied, those products conformed to the specifications of his employers TWELFTH SEPARATE DEFENSE Plaintiff failed to join indispensable parties to this action THIRTEENTH SEPARATE DEFENSE Plaintiff s claims are barred for lack of timely notice to Easco forum state FOURTEENTH SEPARATE DEFENSE Plaintiff s claims are governed by the law of a country or state other than the limitations FIFTEENTH SEPARATE DEFENSE Plaintiff s action is barred, in whole or in part, by the applicable statute(s) of SIXTEENTH SEPARATE DEFENSE Easco denies any breach of warranties, express, implied, written or oral - 6-6 of 16
SEVENTEENTH SEPARATE DEFENSE Easco is not liable to Plaintiff as a successor to any corporation or other entity EIGHTEENTH SEPARATE DEFENSE Easco is not liable to Plaintiff in strict liability in tort NINETEENTH SEPARATE DEFENSE The alleged sale and/or manufacture of products by Easco as referred to in Plaintiff s Third Amended Verified Complaint is not subject to the warranty acts as embodied in the New York Commercial Code TWENTIETH SEPARATE DEFENSE The incident and injuries complained of were caused by Plaintiff s failure to exercise reasonable and ordinary care, caution or vigilance TWENTY-FIRST SEPARATE DEFENSE Plaintiff s damages were caused by the superseding and intervening acts or the fault of other parties over whom Easco has no control and for whose actions Easco is not liable TWENTY-SECOND SEPARATE DEFENSE Plaintiff s action is barred by the doctrines of waiver, estoppel, and laches TWENTY-THIRD SEPARATE DEFENSE Inasmuch as Plaintiff is unable to identify the manufacturers or suppliers of the products which allegedly caused his damages, Plaintiff fails to state a claim upon which relief can be granted, because if relief were granted in the absence of product identification, it would - 7-7 of 16
contravene Easco s constitutional rights to substantive and procedural due process of law and equal protection as preserved by the Fourteenth Amendment to the United States Constitution and the New York State Constitution and standards TWENTY-FOURTH SEPARATE DEFENSE At all times relevant hereto, Easco complied with all applicable laws, regulations TWENTY-FIFTH SEPARATE DEFENSE Plaintiff s claim for punitive damages violates Easco s procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution and under the New York State Constitution TWENTY-SIXTH SEPARATE DEFENSE Plaintiff s claim for punitive damages is barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, prohibiting the imposition of excessive fines, and Article I, Section 5 of the New York State Constitution TWENTY-SEVENTH SEPARATE DEFENSE Easco denies the applicability of punitive damage theories under the facts of this litigation and, in any event, denies it is liable under said theories - 8-8 of 16
TWENTY-EIGHTH SEPARATE DEFENSE To the extent that Plaintiff seeks recovery of exemplary or punitive damages from Easco, such recovery is unavailable because Easco s conduct was not reckless, malicious, willful, or grossly negligent TWENTY-NINTH SEPARATE DEFENSE At no time did Easco act with reckless disregard for the safety of others, either within the meaning of CPLR 1602 or otherwise THIRTIETH SEPARATE DEFENSE Plaintiff failed to mitigate or minimize any damages allegedly sustained by him THIRTY-FIRST SEPARATE DEFENSE To the extent that the cause of action set forth in Plaintiff s Third Amended Verified Complaint seeks damages for which payment was received from collateral sources, such damages must be reduced pursuant to the provisions of CPLR 4545(a) THIRTY-SECOND SEPARATE DEFENSE Easco is entitled to set-off pursuant to GOL 15-108, including, without limitation, set-off of the liability shares of bankrupt non-parties THIRTY-THIRD SEPARATE DEFENSE The damages allegedly sustained by Plaintiff were not caused by any product produced, manufactured, sold, distributed or installed by Easco - 9-9 of 16
THIRTY-FOURTH SEPARATE DEFENSE The asbestos-containing products manufactured by Easco, if any, with which Plaintiff came in contact were materially modified or altered subsequent to their release from the control of Easco THIRTY-FIFTH SEPARATE DEFENSE Easco asserts that Plaintiff s claim is barred from recovery because the product in question, if any, was state-of-the-art at the time of its manufacture THIRTY-SIXTH SEPARATE DEFENSE All Plaintiff s claims and/or causes of action are preempted by the federal regulations of the Occupational Safety and Health Administration and other applicable federal laws and regulations THIRTY-SEVENTH SEPARATE DEFENSE All Plaintiff s claims and/or causes of action are barred or limited by the provisions of the New York Workers Compensation Laws, Article 2, 11 THIRTY-EIGHTH SEPARATE DEFENSE Plaintiff assumed the risk and was fully cognizant of any and all circumstances surrounding the alleged incident and Plaintiff is therefore barred from recovery THIRTY-NINTH SEPARATE DEFENSE Easco denies the existence and/or the applicability of the doctrines of absolute, enterprise, market share, concerted action, conspiracy, risk contribution or alternative liability - 10-10 of 16
under New York law and the facts of this case, and denies that it is liable under any of those theories FORTIETH SEPARATE DEFENSE To the extent that Plaintiff alleges exposure to products supplied or distributed by Easco for a government or shipyard contract, the government approved reasonably precise specifications and Easco complied with those specifications As a result, Easco is immune from suit pursuant to the doctrine enunciated in Boyle v United Technologies Corp, 487 US 500 (1988) and the Federal Tort Claims Act, 28 USC 2671 et seq FORTY-FIRST SEPARATE DEFENSE No exposure for which Easco may be responsible was a substantial factor in causing Plaintiff any illness, injury, and/or disease FORTY-SECOND SEPARATE DEFENSE Plaintiff is not entitled to recover under the doctrine of peculiar risk FORTY-THIRD SEPARATE DEFENSE Plaintiff s claims are barred by the doctrine of sophisticated intermediaries FORTY-FOURTH SEPARATE DEFENSE Any alleged violations of New York State Labor Law asserted by Plaintiff are inapplicable to Easco in this action - 11-11 of 16
FORTY-FIFTH SEPARATE DEFENSE Easco is not liable for Plaintiff s injuries to the extent that they were caused by harmful substances manufactured, distributed, or supplied by others WHEREFORE, defendant Easco Boiler Corp demands that Plaintiff s Third Amended Verified Complaint against it be dismissed with prejudice CROSSCLAIMS Defendant Easco Boiler Corp ( Easco ), individually and as successor to AL Eastmond & Sons Inc, by way of Crossclaim against all other defendants (the Crossclaim Defendants ), however constituted, joined in this action, or to be joined in this action, says: FIRST COUNT 1 While denying any liability for the alleged incident and damages alleged in Plaintiff s Third Amended Verified Complaint, if judgment is recovered by Plaintiff against Easco, the damages allegedly sustained by Plaintiff arose through the direct and primary negligence of and/or other tortious actions of the Crossclaim Defendants, and the alleged negligence of Easco was merely secondary, constructive, technical, imputed and/or vicarious 2 Accordingly, said Crossclaim Defendants are obligated, by the operation of law or otherwise, to indemnify Easco and to hold and save Easco harmless from any and all claims as to the subject incident and damages - 12-12 of 16
WHEREFORE, defendant Easco Boiler Corp demands judgment against all Crossclaim Defendants and indemnification for any and all sums as may be found due against it in favor of Plaintiff, together with interest and costs SECOND COUNT 3 Pursuant to CPLR 1401, Easco is entitled to contribution from and against all persons and entities that share liability to Plaintiff, including, without limitation, bankrupt non-parties and parties not joined in this action WHEREFORE, defendant Easco Boiler Corp demands judgment against all Crossclaim Defendants and contribution for any and all sums as may be found due against it in favor of Plaintiff, together with interest and costs ANSWER TO ALL CROSSCLAIMS Defendant Easco Boiler Corp denies any and all allegations in any Crossclaims or other claims for contribution or indemnity asserted or to be asserted against it by any other party - 13-13 of 16
DEMAND FOR JURY TRIAL contained herein Defendant Easco Boiler Corp hereby demands a trial by jury as to all issues Dated: New York, New York April 28, 2017 DAY PITNEY LLP Attorneys for Defendant Easco Boiler Corp, individually and as successor to AL Eastmond & Sons Inc By: s/ Marc D Crowley Marc D Crowley For the Firm 7 Times Square New York, New York 10036 (212) 297-5800 - and - One Jefferson Road Parsippany, New Jersey 07054 (973) 966-6300 - 14-14 of 16
VERIFICATION MARC D CROWLEY, an attorney-at-law admitted to practice in the Courts of the State of New York, affirms the following to be true under the penalties of perjury pursuant to CPLR Rule 2106: 1 I am Senior Counsel at Day Pitney LLP, attorneys for defendant Easco Boiler Corp ( Easco ) in this action I make this verification on behalf of Easco because Easco is located outside New York County, NY and Morris County, NJ, where my firm maintains its offices 2 I have read the foregoing Verified Answer of Easco to Plaintiff s Third Amended Verified Complaint and all of the allegations contained therein I have no personal knowledge of the information contained in the Answer, however, I am informed and believe that all of the allegations in the Answer are true based upon the records of Easco or information available through employees of Easco Affirmed by me this 28 th day of April, 2017 s/ Marc D Crowley MARC D CROWLEY - 15-15 of 16
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------- x IN RE NEW YORK CITY ASBESTOS LITIGATION NYCAL -------------------------------------------------------------------- x EPIFANIO FIGUEROA, Index No: 190101/2017 Plaintiff, - against - AFFIRMATION OF SERVICE AO SMITH WATER PRODUCTS COMPANY, et al, Defendants -------------------------------------------------------------------- x MARC D CROWLEY, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following under penalty of perjury: I am over eighteen years of age, am not a party to this action, and reside in the County of Morris, State of New Jersey On the 28 th day of April, 2017, I caused a true copy of the within Verified Answer of Easco Boiler Corp to be served upon the following: Jason M Hodrinsky, Esq Gori Julian & Associates, PC Attorneys for Plaintiff 360 Lexington Avenue, 20 th Floor New York, NY 10017 and all defense counsel of record by electronically filing a true copy of same with the New York State Courts Electronic Filing System s/ Marc D Crowley MARC D CROWLEY Affirmed by me this 28 th day of April, 2017-16 - 16 of 16