throbber
FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
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`
`TROY SHANE SMITH and ALLYSON JANE
`SMITH,
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` x
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`INDEX NO. 814633/2023
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`VERIFIED ANSWER TO
`PLAINTIFFS’ VERIFIED
`COMPLAINT, AFFIRMATIVE
`DEFENSES, CROSS-CLAIMS
`AND ANSWER TO
`CROSS-CLAIMS OF ABB INC.
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` x
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`Plaintiffs,
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` -
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` against -
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`84 LUMBER COMPANY, et al.,
`ABB INC., formerly known as Brown Boveri,
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`Defendants.
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`Defendant ABB Inc., (sued herein as ABB INC., formerly known as Brown
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`Boveri) (hereinafter “ABB Inc.” or “Defendant”), by its attorneys Malaby & Bradley, LLC, hereby
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`answers the Verified Complaint (“Complaint”) as follows:
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`AS TO THE PARTIES
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`1.
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`ABB Inc. denies knowledge or information sufficient to form a belief as to
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`the truth of the allegations contained in paragraphs 1 through 3 of the Complaint and refers all
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`questions of law and/or fact to the Court.
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`2.
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`Paragraph 4 of the Complaint is stylistic in nature and does not require an
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`admission or denial by ABB Inc.
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`3.
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`ABB Inc. denies the allegations contained in paragraphs 5 and 8 of the
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`Complaint to the extent they pertain to ABB Inc. except admits that at times ABB Inc. may have
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`transacted business within the State of New York, however such transactions upon information
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`and belief do not give rise to jurisdiction by the Courts of the State of New York in this matter with
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`respect to ABB Inc., denies knowledge or information sufficient to form a belief as to the truth of
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`the allegations to the extent they pertain to or are directed at Plaintiffs or any other defendant in
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`this action, and refers all questions of law and/or fact to the Court.
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`4.
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`ABB Inc. denies knowledge or information sufficient to form a belief as to
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`the truth of the allegations contained in paragraphs 6 through 7 (inclusive) and paragraphs 9
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`through 61 (inclusive) of the Complaint insofar as these allegations are not directed against it.
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`5.
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`ABB Inc. denies the allegations contained in paragraph 62 of the Complaint
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`except admits that ABB Inc. was and is a foreign corporation with its principal place of business
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`outside of New York State that may have transacted business at times within the State of New
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`York, however such transactions upon information and belief do not give rise to jurisdiction by the
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`Courts of the State of New York in this matter with respect to ABB Inc. and refers all questions of
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`law and/or fact to the Court.
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`6.
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`ABB Inc. denies the allegations contained in paragraphs 63 through 69 of
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`the Complaint to the extent they pertain to ABB Inc., denies knowledge or information sufficient
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`to form a belief as to the truth of the allegations to the extent they pertain to or are directed at
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`Plaintiff or any other defendant in this action, and refers all questions of law and/or fact to the
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`Court.
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`{00201998.}
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
`SOUNDING IN NEGLIGENCE
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`7.
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`With regard to paragraph 70 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 69 of the Complaint as if more
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`fully set forth herein.
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`8.
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`ABB Inc. denies each and every allegation contained in paragraphs 76
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`through 78 of the Complaint, and each subparagraph therein to the extent that they pertain to ABB
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`Inc., denies knowledge or information sufficient to form a belief as to the truth of the allegations to
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`the extent they pertain to or are directed at Plaintiff or any other defendant in this action, and
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`respectfully refers all questions of law and/or fact to the Court.
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`AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
`SOUNDING IN BREACH OF WARRANTY
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`9.
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`With regard to paragraph 79 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 78 of the Complaint as if more
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`fully set forth herein.
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`10.
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`ABB Inc. denies the allegations contained in paragraph 80 of the Complaint
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`to the extent that they pertain to ABB Inc., except admits that ABB Inc.’s products were of good
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`and merchantable quality and fit for their intended uses and purposes, denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations to the extent they pertain to
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`or are directed at Plaintiff or any other defendant in this action, and respectfully refers all questions
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`of law and/or fact to the Court.
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`{00201998.}
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`3 of 26
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`11.
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`ABB Inc. denies the allegations contained in paragraphs 81 through 83 of
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`the Complaint to the extent that they pertain to ABB Inc., denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations to the extent they pertain to or are
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`directed at Plaintiff or any other defendant in this action, and refers all questions of law and/or fact
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`to the Court.
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`AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION
`SOUNDING IN STRICT LIABILITY
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`12. With regard to paragraph 84 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 83 of the Complaint as if more
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`fully set forth herein.
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`13.
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`ABB Inc. denies the allegations contained in paragraphs 84 through 93 of
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`the Complaint to the extent that they pertain to ABB Inc., denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations to the extent they pertain to or are
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`directed at Plaintiff or any other defendant in this action, and refers all questions of law and/or fact
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`to the Court.
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`AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION
`LABOR LAW VIOLATIONS
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`14. With regard to paragraph 94 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 93 of the Complaint as if more
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`fully set forth herein.
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`15.
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`ABB Inc. denies the allegations contained in paragraphs 94 through 112 of
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`the Complaint and each subparagraph therein to the extent that they pertain to ABB Inc., denies
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`knowledge or information sufficient to form a belief as to the truth of the allegations to the extent
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`{00201998.}
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`they pertain to or are directed at Plaintiff or any other defendant in this action, and refers all
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`questions of law and/or fact to the Court.
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`AS AND FOR A RESPONSE TO THE FIFTH CAUSE OF ACTION AGAINST
`DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY
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`16. With regard to paragraph 113 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 112 of the Complaint as if more
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`fully set forth herein.
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`17.
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`ABB Inc. denies knowledge or information sufficient to form a belief as to
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`the truth of the allegations contained in paragraphs 114 through 120.
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`AS AND FOR A RESPONSE TO THE SIXTH CAUSE OF ACTION SOUNDING IN
`CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION
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`18. With regard to paragraph 121 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 120 of the Complaint as if more
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`fully set forth herein.
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`19.
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`ABB Inc. denies the allegations contained in paragraphs 122 through 136 of
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`the Complaint, and each subparagraph therein to the extent that they pertain to ABB Inc., denies
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`knowledge or information sufficient to form a belief as to the truth of the allegations to the extent
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`they pertain to or are directed at Plaintiff or any other defendant in this action, and refers all
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`questions of law and/or fact to the Court.
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`{00201998.}
`4870-1215-4777, v. 1
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`5 of 26
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS AND FOR A RESPONSE TO THE SEVENTH CAUSE OF ACTION AGAINST
`DEFENDANT CONTRACTORS
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`20. With regard to paragraph 137 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 136 of the Complaint as if more
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`fully set forth herein.
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`21.
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`Paragraph 138 of the Complaint is stylistic in nature and does not require an
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`admission or denial by ABB Inc.
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`22.
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`ABB Inc. denies the allegations contained in paragraphs 139 through 150 of
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`the Complaint, and each subpart therein to the extent that they pertain to ABB Inc., denies
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`knowledge or information sufficient to form a belief as to the truth of the allegations to the extent
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`they pertain to or are directed at Plaintiff or any other defendant in this action, and refers all
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`questions of law and/or fact to the Court.
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`AS AND FOR A RESPONSE TO THE EIGHTH CAUSE OF ACTION FOR
`PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
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`23. With regard to paragraph 151 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 150 of the Complaint as if more
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`fully set forth herein.
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`24.
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`ABB Inc. denies the allegations contained in paragraphs 152 through 166 of
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`the Complaint to the extent that they pertain to ABB Inc., denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations to the extent they pertain to or are
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`directed at Plaintiff or any other defendant in this action, and refers all questions of law and/or fact
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`to the Court.
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`{00201998.}
`4870-1215-4777, v. 1
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`6 of 26
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS AND FOR A RESPONSE TO THE NINTH CAUSE OF ACTION
`JOINT AND SEVERAL LIABILITY
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`25. With regard to paragraph 167 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 166 of the Complaint as if more
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`fully set forth herein.
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`26.
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`ABB Inc. denies the allegations contained in paragraphs 167 through 179 of
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`the Complaint to the extent they pertain to ABB Inc., denies knowledge or information sufficient
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`to form a belief as to the truth of the allegations to the extent they pertain to or are directed at
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`Plaintiff or any other defendant in this action, and refers all questions of law and/or fact to the
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`Court.
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`AS AND FOR A RESPONSE TO THE TENTH CAUSE OF ACTION
`PUNITIVE DAMAGES
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`27. With regard to paragraph 180 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 179 of the Complaint as if more
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`fully set forth herein.
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`28.
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`ABB Inc. denies the allegations contained in paragraph 181 of the
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`Complaint to the extent that they pertain to ABB Inc., denies knowledge or information sufficient
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`to form a belief as to the truth of the allegations to the extent they pertain to Plaintiff or any other
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`defendant in this action, and refers all questions of law and/or fact to the Court.
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`AS AND FOR A RESPONSE TO THE ELEVENTH CAUSE OF ACTION
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`SPOUSAL LOSS OF CONSORTIUM
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`29. With regard to paragraph 182 of the Complaint, ABB Inc. repeats, reiterates
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`and realleges each and every response as to paragraphs 1 through 181 of the Complaint as if more
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`fully set forth herein.
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`{00201998.}
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`30.
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`ABB Inc. denies knowledge or information sufficient to form a belief as to
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`the truth of the allegations contained in paragraph 183 of the Complaint and refers all questions of
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`law and/or fact to the Court.
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`31.
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`ABB Inc. denies the allegations contained in paragraph 184 of the
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`Complaint.
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`32.
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`The Verified Complaint fails to state a cause of action upon which relief can
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`be granted against ABB Inc.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`33.
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`Plaintiffs’ claims are time barred by reason of the applicable statute(s) of
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`limitations.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
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`34.
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`In the event that Plaintiffs rely on New York Law, L. 1986 C. 682 Sections
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`4 and 12 as grounds for maintaining this action, these sections are unconstitutional and this action
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`is time barred.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`35.
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`Plaintiffs’ claims are barred by the operation of the doctrine of laches.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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`36.
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`Plaintiffs’ claims are barred by the operation of the doctrine of estoppel.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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`37.
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`Plaintiffs have waived all claims against ABB Inc.
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`{00201998.}
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
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`38.
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`This Court lacks jurisdiction over the subject matter of this action.
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
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`39.
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`This Court lacks personal jurisdiction over ABB Inc.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`40.
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`The venue of this action is improper.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
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`41.
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`Plaintiffs lack the capacity, standing or authority to bring this action, in
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`whole or in part.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`42.
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`Plaintiffs’ claims are barred by the doctrines of res judicata and/or collateral
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`estoppel.
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
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`43.
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`Plaintiffs’ speculative, uncertain and/or contingent damages have not
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`accrued and are not recoverable.
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
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`44.
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`Joinder of individual Plaintiffs in this action is improper because they do
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`not assert any right to relief jointly, severally, or, in the alternative, do not arise out of the same
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`transaction, occurrence, or series of transactions or occurrences.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`45.
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`This cause of action must be dismissed in the event Plaintiff/Plaintiffs have
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`another action pending against ABB Inc. for the same cause of action in another court.
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`{00201998.}
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`9 of 26
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`46.
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`In the event either Plaintiff executed a settlement agreement releasing and
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`discharging ABB Inc. from all claims arising out of Plaintiffs’ alleged injury, all claims alleged by
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`Plaintiffs should be dismissed.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`47.
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`To the extent that either Plaintiff has given a release or covenant not to sue
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`or not to enforce a judgment to an alleged co-tortfeasor of ABB Inc., Plaintiff’s claim herein is
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`reduced to the extent of any amount stipulated by the release or covenant, in the amount of the
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`consideration paid for it, or in the amount of the released tortfeasor’s equitable share of the
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`damages, whichever is greater.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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`48.
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`Neither Plaintiff was injured by exposure to a ABB Inc. product.
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
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`49.
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`In the event that either Plaintiff was employed by any of the Defendants,
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`Plaintiffs’ sole and exclusive remedy is under the Worker’s Compensation Law of the State of
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`New York.
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
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`50.
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`Insofar as the Complaint, and each cause of action considered separately,
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`alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal
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`injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable
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`conduct attributable to Plaintiffs, including contributory negligence and assumption of risk, in the
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`proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which
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`{00201998.}
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`caused the damages.
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
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`51.
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`Insofar as the Complaint, and each cause of action considered separately,
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`alleges a cause of action accruing on or after September 1, 1975 each such cause of action is barred
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`by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and
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`assumption of risk.
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`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
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`52.
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`To the extent that Plaintiffs were injured as alleged in the Complaint, which
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`ABB Inc. denies, said injury was proximately caused by the negligence, breach of warranty and/or
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`strict liability of persons and/or entities other than ABB Inc.
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`53.
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`To the extent that Plaintiffs were injured as alleged in the Complaint, which
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`ABB Inc. denies, such injury was the result of intervening and/or superseding acts or omissions of
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`parties over whom ABB Inc. had no control or right to control.
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`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
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`54.
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`At all times relevant hereto, the knowledge of Plaintiffs’ employer(s) was
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`superior to that of ABB Inc. with respect to possible health hazards associated with Plaintiffs’
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`employment, and, therefore, if there was any duty to warn or provide protection to Plaintiff, it was
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`the duty of said employer, not of ABB Inc., and breach of that duty was an intervening and/or
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`superseding cause of the injuries allegedly sustained by Plaintiffs.
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`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`55.
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`At all times during the conduct of their corporate operations, the agents,
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
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`servants and/or employees of ABB Inc. used proper methods in their production activities in
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`conformity to the available knowledge and research of the scientific and industrial communities.
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`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`56.
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`To the extent that Plaintiffs sustained injuries from the use of ABB Inc.
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`products, which ABB Inc. denies, such injuries resulted from the unforeseeable misuse, abuse,
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`alteration, modification, and/or unauthorized handling of the product by Plaintiffs, or by
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`third-parties, over whom ABB Inc. had no control or right to control.
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`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`57.
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`Plaintiffs voluntarily assumed the risks associated with the use of or
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`exposure to the products at issue.
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`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`58.
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`ABB Inc. had no knowledge or reason to know of any alleged risks
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`associated with finished asbestos-containing products at any time during the purported peril
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`complained of in the Complaint.
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`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`59.
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`Plaintiffs contributed to the injuries alleged by the use of tobacco products
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`and/or other substances, products, medications and drugs.
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`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
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`60.
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`Plaintiffs’ injuries were caused directly, solely and proximately by
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`sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiffs and not found in the general
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`public, of which ABB Inc. neither knew, had reason to know, nor could have foreseen.
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`{00201998.}
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`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
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` 61.
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`As to all causes of action pleaded in the Complaint which are based upon
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`expressed or implied representations, such causes of action are legally insufficient as against ABB
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`Inc. as there was no privity of contract between either Plaintiff and ABB Inc..
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` AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
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`62.
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`Plaintiffs never purchased, directly or indirectly, any asbestos-containing
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`product or materials from ABB Inc., nor did Plaintiffs ever receive or rely upon any representation
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`allegedly made by ABB Inc.
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`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
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`63.
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`Plaintiffs lack capacity and/or standing to maintain a claim for relief against
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`ABB Inc. with respect to injuries alleged to have been suffered by Plaintiffs.
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`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
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`64.
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`To the extent that either Plaintiff was exposed to any product manufactured
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`by ABB Inc., which ABB Inc. 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 ABB Inc.
`
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`
`65.
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary
`
`and indispensable parties.
`
`
`
`
`
`
`
`
`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`
`66.
`
`To the extent that Plaintiffs are entitled to damages, which ABB Inc. denies,
`
`ABB Inc. is entitled to a set-off for all Workers’ Compensation payments received by Plaintiffs.
`
`
`{00201998.}
`4870-1215-4777, v. 1
`
`13 of 26
`
`

`

`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/28/2023
`
`
`
`
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`
`
`
`67.
`
`In accordance with CPLR 1601, ABB Inc.’s liability for non-economic loss
`
`is limited to its equitable share of the total liability for non-economic loss.
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`
`
`
`
`
`68.
`
`In accordance with CPLR 4545(c), ABB Inc. is entitled to a set-off for any
`
`past or future costs or expenses incurred or to be incurred by Plaintiffs 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.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`
`
`
`
`
`69.
`
`At all relevant times, the state of the medical, scientific, and industrial
`
`knowledge, the state of the art, practice, and prevailing industry standards regarding
`
`asbestos-containing products was such that ABB Inc. neither knew, had reason to know, nor could
`
`have known of any foreseeable or significant risk or harm to Plaintiffs in the normal or expected
`
`use of ABB Inc.’s products.
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`
`
`
`
`
`70.
`
`Any injuries sustained by either Plaintiff resulted from Plaintiffs’ 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 ABB Inc.,
`
`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 ABB Inc. concerning the properties and characteristics of asbestos and
`
`asbestos-containing products.
`
`
`{00201998.}
`4870-1215-4777, v. 1
`
`14 of 26
`
`

`

`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/28/2023
`
`
`
`
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`
`
`
`71.
`
`Any asbestos-containing ABB Inc. products were supplied according to the
`
`purchaser’s or user’s specifications and standards.
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`
`
`
`
`
`72.
`
` ABB Inc. was under no legal duty to warn either Plaintiff of any hazards
`
`from the use of any asbestos-containing products. The actual purchasers and/or those under the
`
`purchasers’ control, Plaintiffs’ employer(s), and the owners and lessors of the properties at which
`
`Plaintiffs allege exposure to such products, were in a far better position to warn Plaintiffs and, if
`
`any such 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 FORTY-SECOND AFFIRMATIVE DEFENSE
`
`
`
`
`
`73.
`
`Plaintiffs were reasonably and adequately warned of any alleged risks
`
`associated with the use of or exposure to asbestos-containing products and failed to take necessary
`
`or recommended precautions to prevent against the risk of injury.
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`
`
`
`
`
`74.
`
`Timely and/or proper notice was not given to ABB Inc. as to any alleged;
`
`breach of warranty.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`
`
`
`
`
`75.
`
`To the extent Plaintiffs’ claims are based on an alleged breach of warranty;
`
`Plaintiffs did not rely on any warranty.
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`
`
`
`
`
`76.
`
`Any oral warranties upon which Plaintiffs allegedly relied are inadmissible
`
`{00201998.}
`
`4870-1215-4777, v. 1
`
`
`
`15 of 26
`
`

`

`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/28/2023
`
`
`under the Statute of Frauds.
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`
`
`
`
`
`77.
`
`Any claims by Plaintiffs for exemplary and/or punitive damages are barred
`
`because such damages are not recoverable or warranted.
`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`
`
`
`
`
`78.
`
`ABB Inc.’s conduct was not reckless, malicious, willful or grossly
`
`negligent, and consequently, Plaintiffs are not entitled to exemplary and/or punitive damages.
`
`
`
`
`
`
`
`
`
`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
`
`79.
`
`Any claims for punitive damages is barred by the double jeopardy clause of
`
`the Fifth Amendment to the United States Constitution, as applied to the states through the
`
`Fourteenth Amendment, as Article I, Section 6 of the New York State Constitution.
`
`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
`
`
`
`
`
`80.
`
`Any claims for punitive damages are barred by the ex post facto clause of
`
`Article I, Section 10 of the United States Constitution.
`
`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
`
`
`
`
`
`81.
`
`Any claims for punitive damages are barred by the proscription of Article I,
`
`Section 5 of the New York State Constitution prohibiting the imposition of excessiveness.
`
`AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
`
`
`
`
`
`82.
`
`To the extent the law of any other jurisdiction is applicable to this action;
`
`any demand for punitive damages is barred by the applicable proscriptions of the constitution of
`
`such jurisdiction.
`
`
`
`{00201998.}
`
`4870-1215-4777, v. 1
`
`
`
`16 of 26
`
`

`

`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/28/2023
`
`
`
` AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
`
`
`
`
`
`
`
`83.
`
`The damages allegedly sustained by plaintiffs were caused, in whole or in
`
`part, by the negligence or other culpable conduct of plaintiffs and/or other defendants, which
`
`conduct constituted a supervening case of plaintiffs’ alleged injuries.
`
`
`
`
`
`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
`
`
`
`
`
`84.
`
`Any damages allegedly sustained by the plaintiffs were the proximate result
`
`of an unforeseen occurrence and/or unforeseeable negligence, gross negligence, wanton, reckless
`
`or intentional conduct constituting an intervening or superseding act or omission or other conduct
`
`by third parties.
`
`
`
`
`
`
`
`
`
`AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
`
`85.
`
`The damages allegedly sustained by plaintiffs were caused, in whole or in
`
`part, through unavoidable natural consequences.
`
`
`
`
`
`
`
`AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
`
`86.
`
`If the plaintiffs sustained damages as alleged, such damages occurred while
`
`they engaged in activities into which they entered, knowing the hazard, risk and danger of the
`
`activities and they assumed the risks incidental to and attendant to the activities.
`
`
`
`
`
`
`
`
`
`
`
`AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
`
`87.
`
`No acts or omissions of ABB Inc. proximately caused plaintiffs’ damages.
`
`
`
`AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`
`88.
`
`Any asbestos-containing product of or used in conjunction with products
`
`sold by ABB Inc. that may have been present at Plaintiffs’ job locations were installed or
`
`configured on the basis of the specifications, approval or the instruction of governmental or
`
`{00201998.}
`
`4870-1215-4777, v. 1
`
`
`
`17 of 26
`
`

`

`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/28/2023
`
`
`legislative agencies or other regulatory bodies.
`
`
`
`
`
`
`
`AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`
`89.
`
`The damages sustained by Plaintiffs arising from their alleged exposure to
`
`asbestos-containing products while working on or near the equipment or other product allegedly
`
`manufactured or sold by ABB Inc. (the “Product”), were caused, in whole or in part, by the
`
`improper use and operation of the Product, rather than any defect in the design, manufacture,
`
`production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
`
`of the Product by ABB Inc.
`
`
`
`
`
`
`
`AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
`
`90.
`
`The damages sustained by Plaintiffs which allegedly arose from the Product
`
`were caused by its alteration, misuse and/or improper maintenance by one or more persons or
`
`instrumentalities other that ABB Inc., rather than any defect in the design, manufacture,
`
`production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
`
`of the Product by ABB Inc.
`
`
`
`
`
`
`
`AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
`
`91.
`
`The Product was in all respects fit and suitable for its intended and
`
`reasonably foreseeable uses and was not in a defective or dangerous condition when it left ABB
`
`Inc.’s possession and control.
`
`
`
`
`
`
`
`
`
`AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
`
`
`
`92.
`
`No implied warranties, including the warranties of merchantability and
`
`fitness for particular purpose, because a part of the basis of the bargain in the sale of the Product.
`
`
`
`{00201998.}
`
`4870-1215-4777, v. 1
`
`
`
`18 of 26
`
`

`

`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/28/2023
`
`
`
`
`
`
`
`
`
`AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
`
`
`
`93.
`
`In the event it should be proven at the time of trial that all defendants are
`
`subject to market share liability, then ABB Inc.’s share of such liability would be of such a de
`
`minimis amount as to make its contribution for damages negligible, and ABB Inc. would be
`
`entitled to contribution, either in whole or in part, from co-defendants.
`
`
`
`
`
`AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
`
`94.
`
`ABB Inc. denies that the asbestos products alleged in plaintiff’s 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.
`
`
`
`
`
`
`
`AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE
`
`
`
`95.
`
`Exposure to asbestos fibers allegedly attributable to ABB Inc. or its
`
`predecessor was so de minimis so as to be insufficient as a matter of law to enable plaintiff to
`
`establish to a reasonable degree of probability that the Products are capable of causing injury or
`
`damages and must be considered speculative as a matter of law.
`
`
`
`
`
`AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE
`
`96.
`
`Finished or otherwise encapsulated asbestos-containing products are not
`
`unreasonably dangers as a matter of law.
`
`
`
`
`
`AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE
`
`97.
`
`If ABB Inc. or its predecessor was on notice of any hazard or defect for
`
`which plaintiff seeks relief, which ABB Inc. denies, plaintiff also had such notice of the existing
`
`hazard at or about the same time as ABB Inc., and is thereby barred from recovery.
`
`
`
`{00201998.}
`
`4870-1215-4777, v. 1
`
`
`
`19 of 26
`
`

`

`FILED: ERIE COUNTY CLERK 12/28/2023 12:29 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/28/2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`AS AND FO

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