FILED: NEW YORK COUNTY CLERK 12/08/2016 11:03 PM INDEX NO. 190300/2016 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------X VESTON LORDE and WENDY LORDE, Index No. 190300/2016 Plaintiffs, VERIFIED ANSWER -against- AIR & LIQUID SYSTEMS CORPORATION, as Successor by Merger to Buffalo Pumps, Inc., Defendants. ----------------------------------------X Defendant, Prevost Car (US) Inc., Individually and as Successor to Nova Bus, by its attorneys, MAIMONE & ASSOCIATES, PLLC, answering the Verified Compliant and First Amended Verified Complaint of the plaintiffs, respectfully state as follows: ANSWERING PLAINTIFFS VERIFIED COMPLAINT 1. The answering defendant denies having sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraphs 1, 4 and 66 of the plaintiffs Verified Complaint and refers all conclusions of to this Honorable Court. 2. The answering defendant denies sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraphs 2, 3 and 6-58 of the plaintiffs Verified Complaint. 1 of 19
3. The answering defendant denies the allegations contained in Paragraphs 5 and 59-65 of the plaintiffs Verified Complaint as to this answering defendant and denies having sufficient knowledge or information to from a belief as to the truth of the allegations as to the remaining defendants to this action. ANSWERING THE FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE 4. Answering Paragraph 67 of the plaintiffs Verified paragraphs of the Verified Complaint referenced herein. 5. The answering defendant denies the allegations contained in Paragraphs 68-75 of the plaintiffs Verified Complaint as to this answering defendant and denies having sufficient knowledge or information to form a belief as to the truth of the allegations as to the remaining defendants to this action. ANSWERING THE SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARANTY 6. Answering Paragraph 76 of the plaintiffs Verified paragraphs of the Verified Complaint referenced herein. - 2-2 of 19
7. The answering defendant denies the allegations contained in Paragraphs 77-80 of the plaintiffs Verified Complaint as to this answering defendant and denies having sufficient knowledge or information to form a belief as to the truth of the allegations as to the remaining defendants to this action. ANSWERING THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 8. Answering Paragraph 81 of the plaintiffs Verified paragraphs of the Verified Complaint referenced herein. 9. The answering defendant denies the allegations contained in Paragraph 82-90 of the plaintiffs Verified Complaint as to this answering defendant and denies having sufficient knowledge or information to form a belief as to the truth of the allegations as to the remaining defendants to this action. ANSWERING THE FOURTH CAUSE OF ACTION SOUNDING IN LABOR LAW VIOLATIONS 10. Answering Paragraph 91 of the plaintiffs Verified paragraphs of the Verified Complaint referenced therein. - 3-3 of 19
11. The answering defendant denies the allegations contained in Paragraphs 92-107 and 109 of the plaintiffs Verified Complaint as to this answering defendant and denies having sufficient knowledge or information to form a belief as to the truth of the allegations a to the remaining defendants to this action. 12. The answering defendant denies the allegation contained in Paragraph 108 of the plaintiffs Verified Complaint. ANSWERING THE FIFTH CAUSE OF ACTION AGAINST METROPOLITAN LIFE INSURANCE 13. Answering Paragraph 110 of the plaintiffs Verified paragraphs of the Verified Complaint referenced therein. 14. The answering defendant denies sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraphs 111-117 of the plaintiffs Verified Complaint. ANSWERING THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION 15. Answering Paragraph 118 of the plaintiffs Verified paragraphs of the Verified Complaint referenced therein. - 4-4 of 19
16. The answering defendant denies the allegations contained in Paragraphs 119-127 of the plaintiffs Verified Complaint as to this answering defendant and denies having sufficient knowledge or information to form a belief as to the truth of the allegations as to the remaining defendants to this action. 17. The answering defendant denies the allegation contained in Paragraph 128 of the plaintiffs Verified Complaint. 18. The answering defendant denies the allegations contained in Paragraphs 129, 130, 132 and 133 of the plaintiffs Verified Complaint as to this answering defendant, denies having sufficient knowledge or information to form a belief as to the truth of the allegations as to the remaining defendants to this action, and refers all conclusions of law to this Honorable Court. 19. The answering defendant denies the allegation contained in Paragraph 131 of the plaintiffs Verified Complaint and refers all conclusions of law to this Honorable Court. ANSWERING THE SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS 20. Answering Paragraph 134 of the plaintiffs Verified Compliant, the answering defendant repeats, reiterates and - 5-5 of 19
relleges each and every denial set forth in response to the paragraphs of the Verified Complaint referenced herein. 21. The answering defendant denies having sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraphs 135, 144, 146 and 147 of the plaintiffs Verified Complaint and refers all conclusions of law to this Honorable Court. 22. The answering defendant denies having sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraphs 136-143 and 145 of the plaintiffs Verified Complaint. ANSWERING THE EIGHTH CAUSE OF ACTION AGAINST PREMISE DEFENDANTS 23. Answering Paragraph 148 of the plaintiffs Verified paragraphs of the Verified Complaint referenced therein. 24. The answering defendant denies the allegation contained in Paragraph 149 of the plaintiffs Verified Complaint as to this answering defendant and denies having sufficient knowledge or information to form a belief as to the truth of the allegation as to the remaining defendants to this action. 25. The answering defendant denies having sufficient knowledge or information to form a belief as to the truth of the - 6-6 of 19
allegations contained in Paragraphs 150-157 and 163 of the plaintiffs Verified Complaint and refers all conclusions of law to this Honorable Court. 26. The answering defendant denies the allegations contained in Paragraphs 158-161 of the plaintiffs Verified Complaint as to this answering defendant, denies having sufficient knowledge or information to form a belief as to the truth of the allegations as to the remaining defendants to this action, and refers all conclusions of law to this Honorable Court. 27. The answering defendant denies the allegation contained in Paragraph 162 of the plaintiffs Verified Complaint and refers all conclusions of law to the plaintiffs Verified Complaint. ANSWERING THE NINTH CAUSE OF ACTION SOUNDING IN JOINT AND SEVERAL LIABILITY 28. Answering Paragraph 164 of the plaintiffs Verified paragraphs of the Verified Complaint referenced therein. 29. The answering defendant denies the allegations contained in Paragraphs 165-176 of the plaintiffs Verified Complaint and refers all conclusions of law to this Honorable Court. - 7-7 of 19
ANSWERING THE TENTH CAUSE OF ACTION SOUNDING IN PUNITIVE DAMAGES 30. Answering Paragraph 177 of the plaintiffs Verified paragraphs of the Verified Complaint referenced therein. 31. The answering defendant denies the allegation contained in Paragraph 178 of the plaintiffs Verified Complaint as to this answering defendant, denies having sufficient knowledge or information to form a belief as to the truth of the allegation as to the remaining defendants to this action, and refers all conclusions of law to this Honorable Court. ANSWERING THE ELEVENETH CAUSE OF ACTION SOUNDING IN SPOUSAL LOSS OF CONSORTIUM 32. Answering Paragraph 179 of the plaintiffs Verified paragraphs of the Verified Complaint referenced therein. 33. The answering defendant denies having sufficient knowledge or information to form a belief as to the truth of the allegation contained in Paragraph 180 of the plaintiffs Verified Complaint. 34. The answering defendant denies the allegation contained in Paragraph 181 of the plaintiffs Verified Complaint as to this answering defendant and denies having sufficient - 8-8 of 19
knowledge or information to form a belief as to the truth of the allegation as to the remaining defendants to this action. ANSWERING PLAINTIFFS FIRST AMENDED VERIFIED COMPLAINT 35. The answering defendant denies having sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraphs 1 and 4 of the plaintiffs First Amended Verified Complaint and refers all conclusions of law to this Honorable Court. 36. The answering defendant denies having sufficient knowledge or information to form a belief as to the truth of the allegations contained in Paragraphs 2, 3, 6-8 and 10 of the plaintiffs First Amended Verified Complaint. 37. The answering defendant denies the allegations contained in Paragraph 5 of the plaintiffs First Amended Verified Complaint as to this answering defendant and denies having sufficient knowledge or information to form a belief as to the truth of the allegations as to the remaining defendants to this action. 38. The answering defendant denies the allegations contained in Paragraph 9 of the plaintiffs First Amended Verified Complaint except admits that it is a foreign corporation duly authorized to do business and transacting business in the State of New York. - 9-9 of 19
AS FOR A FIRST AFFIRMATIVE DEFENSE 39. If the plaintiffs sustained any damages, then said damages were caused in whole or in part by their own culpable conduct, including negligence and assumption of the risk, and the amount of damages otherwise recoverable in this action should be reduced and diminished thereby in accordance with Article 14-A of the CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 40. The plaintiffs Complaint and all liability and damages alleged therein shall be controlled, limited and subject to Article 50-b of the Civil Practice Law and Rules, in relation to periodic payments of judgments in personal injury actions. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 41. The plaintiffs Complaint and all liability and damages alleged therein for non-economic loss shall be controlled, limited and subject to Article 16 of the Civil Practice Law and Rules in relation to persons jointly liable. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 42. The answering defendant demands an itemized verdict in accordance with Rule 4111 of the Civil Practice Law and Rules. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 43. The answering defendant demands that any award to plaintiffs be reduced by amounts that have been or will be - 10-10 of 19
reimbursed from collateral sources, pursuant to Section 4545(c) of the Civil Practice Law and Rules. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 44. Any allegations and causes of action sounding in warranty are barred by plaintiffs lack of privity with the defendant. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 45. The Complaint and/or the Standard Complaint, and each cause of action stated therein, fail to state a claim upon which relief can be granted. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 46. The allegations and claims set forth in the Complaint and/or the Standard Complaint are barred, in whole or in part, by the applicable Statute of Limitations. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 47. All claims brought under an Act of the New York State Legislature, entitled Toxic Tort-Statute of Limitations Laws of 1986, Chapter 682, Section 4, are time barred in that the statute is in violation of the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 48. The allegations and claims set forth in the Complaint and/or the Standard Complaint are barred, in whole or in part, by the applicable statutes of repose. - 11-11 of 19
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 49. The Complaint and/or the Standard Complaint fails to join necessary and indispensable parties in whose absence complete and fair relief cannot be accorded. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 50. To the extent that plaintiffs are able to prove the allegations with respect to negligence, injury, and damages, all of which the answering defendant denies, any such injuries and/or damages to plaintiffs were the result of intervening and/or interceding acts of superseding negligence on the part of persons over whom defendant had no control or right of control. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 51. All causes of action asserted in the Complaint fail to state a claim upon which an award of punitive damages may be made. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 52. The answering defendant is entitled a set-off or reduction of any verdict or judgment against it pursuant to General Obligations Law 15-108, on the basis of prior judgments, settlements and/or compromises. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 53. The answering defendant is entitled to an equitable credit toward any judgment that might be rendered against it for any Workers Compensation payment or award that might have been - 12-12 of 19
made with respect to the alleged asbestos-related injuries or other damages. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 54. As a result of the acts, conduct, and omissions of the plaintiffs and the plaintiffs agents, the allegations set forth in the Complaint and/or the Standard Complaint are barred by the doctrines of estoppel and waiver. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 55. The plaintiffs claims are barred, in whole or in part, by the doctrine of laches. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 56. The damages, if any, alleged by the plaintiffs in the Complaint and/or the Standard Complaint were proximately caused by the misuse and abuse of the products or material referred to in the Complaint and/or the Standard Complaint, if any, either by plaintiffs or others. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 57. Any express and implied warranties alleged by the plaintiffs to have been made by the defendant, if made at all, were expressly disclaimed and excluded by product labels, notices, and other warnings that provided that the manufacturer made no warranties, express or implied, concerning the products or the use of said products, and that all statements made concerning said products applied only when used as directed. - 13-13 of 19
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 58. The plaintiffs failed to give notice to the answering defendant within a reasonable time, of the claimed breach of warranty alleged in the Complaint and/or the Standard Complaint, in the manner and form prescribed by law. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 59. Any allegations and causes of action sounding in warranty are barred by the applicable Statute of Limitations. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 60. All conduct and activities of the answering defendant alleged in the Complaint and/or the Standard Complaint conformed to statutes, government regulations and industry standards based upon the state of knowledge existing at the time alleged in the Complaint and/or the Standard Complaint. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 61. Plaintiffs and/or others modified, altered or changed the answering defendant s alleged products or materials referred to in the Complaint and/or the Standard Complaint, if any, so that such changes in any said products or materials proximately caused the plaintiffs injuries, loss and damages, if any, and thereby the answering defendant is not liable. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 62. Plaintiffs and plaintiffs employer(s), including said employers agents, servants, and employees, are and were - 14-14 of 19
sophisticated users of any and all products or materials referred to in the Complaint and/or the Standard Complaint, and thereby acquired a separate and affirmative duty to warn their employees, including plaintiffs, of any alleged potential harmful effects from the use or misuse of said products or materials. By reason of the foregoing, said employers failure to discharge said duty directly and proximately caused any and all damages and injuries, if any, complained of by the plaintiffs. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 63. The claim for punitive or exemplary damages, if any, alleged by the plaintiffs is barred by the Fifth, Eight and Fourteenth Amendment to the United States Constitution. Furthermore, there is no standard for determining the amount of the award; state law does not define with sufficient clarity requisite conduct or mental state; the state cannot protect the defendant from future punishment for the same wrong. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 64. The imposition of punitive damages based on the facts alleged in the Complaint and/or the Standard Complaint would violate the excessive fines and due process clauses of the Constitutions of the United States and of the State of New York. - 15-15 of 19
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 65. The answering defendant refers, alleges and adopts such other defenses as may have been raised by any of the other defendants to this proceeding. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 66. Since plaintiffs are unable to identify the manufacturers of the substance, produce or equipment which allegedly caused injury to them, plaintiffs fail to state a claim upon which relief may be granted, since if such relief were granted, it would deprive the answering defendant of its constitutional rights to substantive and procedural due process of law and equal protection under the laws guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of New York. In addition, in would constitute an invalid burden by the 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. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 67. The causes of action asserted herein by plaintiffs, who admittedly are unable to identify the manufacturer of the alleged injury-causing product, fail to state a claim upon which relief can be granted, in that plaintiffs have asserted claims - 16-16 of 19
for relief which, if granted, would constitute a taking of private property for public use, without just compensation. Such a taking would contravene the answering defendant s Constitutional rights as preserved for it by the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 68. To the extent to which plaintiffs seek punitive damages against the answering defendant, these damages are improper, unwarranted, not authorized by law and are unconstitutional in the context of this litigation. The imposition of punitive damages violates the due process, contract and excessive fines clauses of the United States Constitution. AS AND FOR A CROSS CLAIM AGAINST THE OTHER NAMED DEFENDANTS, THE ANSWERING DEFENDANT ALLEGES THE FOLLOWING UPON INFORMATION AND BELIEF 69. If the plaintiffs were caused to sustain damages as set forth in the plaintiffs Verified Complaint, due to any carelessness, recklessness and/or negligence other than that attributable to the plaintiffs, then said damages were sustained by reason of the carelessness, recklessness, negligence or other liability of the other named defendants and their agents, servants and/or employees, and if any recovery is had herein by the plaintiffs against the answering defendant, they will then be damaged by the aforesaid defendants, and said defendants are - 17-17 of 19
or will be responsible thereof in whole or in part by virtue of contribution. 70. If the plaintiffs herein recover from the answering defendant then the other named defendants will be required to indemnify said answering defendant to the full extent of the plaintiffs recovery by virtue of common law indemnity and contractual indemnity. 71. By reason of the foregoing, the other named defendants, will be liable to the answering defendant in the event, and in full amount, of any recovery had herein by the plaintiffs, or for that portion thereof caused by the relative responsibility of said defendants, and said defendants will be bound to pay any and all fees and disbursements. WHEREFORE, Prevost Car (US) Inc. demands judgment dismissing the plaintiffs Verified Complaint and First Amended Verified Complaint, on the merits as to the answering defendant, or in the alternative, that the ultimate rights of all other named defendants be determined in this action, and that the answering defendant has judgment over and against the other named defendants, for all or that portion of any recovery that may be had herein by the plaintiffs as against the answering defendant to the extent of the responsibility of the other named defendants contributing thereto, together with the costs, disbursements and other fees associated with this action. - 18-18 of 19
Dated: Port Washington, New York December 8, 2016 Yours, etc. MAIMONE & ASSOCIATES, PLLC BY: /s/thomas J. Maimone THOMAS J. MAIMONE Attorneys for Defendant PREVOST CAR (US) INC. 150 Haven Avenue, Port Washington, NY 11050 (516) 390-9595 TO: BELLUCK & FOX Attorneys for Plaintiffs 546 Fifth Avenue, 4 th Floor New York, New York 10036 Counsel of Record for all Co-Defendants Served via the Electronic Filing System of the Courts of the State of New York on all registered parties on December 8, 2016. - 19-19 of 19