`NYSCEF DOC. NO. 18
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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
`- -------------------------------------------------------------------- X
`This Document Relates To:
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`:
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`: Index No.: 814633/2023
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`:
`TROY SHANE SMITH and ALLYSON JANE SMITH,
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`:
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`: VERIFIED ANSWER
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`84 LUMBER COMPANY; et al.,
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` Defendants.
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` :
`-- ------------------------------------------------------------------- X
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`Plaintiff(s),
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`- against -
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`Defendant CANVAS MW, LLC, formerly known as The Marley-Wylain Company,
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`LLC, incorrectly sued as WEIL McLAIN, a division of Marley Wylain Company (hereinafter
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`“Canvas MW”), by its attorneys, Leader Berkon Colao & Silverstein LLP, hereby acknowledges
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`receipt and answers Plaintiffs’ Verified Complaint (“Complaint”), upon information and belief,
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`as follows:
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`THE PARTIES
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`1.
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`Canvas MW denies knowledge and information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “1” through “3” of the Complaint and refers all
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`questions of law to this honorable Court.
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`2.
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`Canvas MW denies the allegations contained in paragraphs “4” and “5” of the
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`Complaint to the extent that such allegations are directed towards Canvas MW and refers all
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`questions of law to this honorable Court. Canvas MW admits that it did conduct business in this
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`state from time to time; however, Canvas MW denies that such business is in any way related to
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`the allegations contained these paragraphs.
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`3.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`allegations contained in paragraphs “4” and “5” of the Complaint to the extent that such allegations
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`relate to other parties and refers all questions of law to this honorable Court.
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`NYSCEF DOC. NO. 18
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`Canvas MW denies knowledge and information to form a belief as to the truth of
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`4.
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`the allegations contained in paragraphs “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”,
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`“16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, “30”, “31”,
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`“32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47”,
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`“48”, “49”, “50”, “51”, “52”, “53”, “54”, “55”, “56”, “57”, “59”, “60”, and “61” of the Complaint
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`and refers all questions of law to this honorable Court.
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`5.
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`Canvas MW denies the allegations contained in paragraph “58” of the Complaint
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`and refers all questions of law to this honorable Court. Canvas MW admits that it did conduct
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`business in this state from time to time; however, Canvas MW denies that such business is in any
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`way related to the allegations contained this paragraph.
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`6.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “62”, “63”, “64”, “65”, “66”, “67”, “68”, and
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`“69” of the Complaint to the extent that such allegations relate to other parties and refers all
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`questions of law to this honorable Court.
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`7.
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`Canvas MW denies the allegations contained in paragraph “62” of the Complaint
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`to the extent that such allegations are directed towards Canvas MW and refers all questions of law
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`to this honorable Court. Canvas MW admits that it did conduct business in this state from time to
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`time; however, Canvas MW denies that such business is in any way related to the allegations
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`contained this paragraph.
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`8.
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`Canvas MW denies the allegations contained in paragraphs “63”, “64”, “65”, “66”,
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`“67”, “68”, and “69” of the Complaint to the extent that such allegations are directed towards
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`Canvas MW and refers all questions of law to this honorable Court.
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`AS TO THE FIRST CAUSE OF ACTION
`SOUNDING IN NEGLIGENCE
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`Canvas MW repeats and reiterates each and every response hereinbefore made
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`9.
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`with the same force and effect as though the same were set forth at length herein in response to
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`paragraph “70” of the Complaint.
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`10.
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`Canvas MW denies the allegations contained in paragraphs “71” through “78” of
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`the Complaint to the extent that such allegations are directed towards Canvas MW and refers all
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`questions of law to this honorable Court.
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`11.
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` Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “71” through “78” of the Complaint to the extent
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`that such allegations relate to other parties and refers all questions of law to this honorable Court.
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`AS TO THE SECOND CAUSE OF ACTION
`SOUNDING IN BREACH OF WARRANTY
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`12.
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`Canvas MW repeats and reiterates each and every response hereinbefore made with
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`the same force and effect as though the same were set forth at length herein in response to
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`paragraph “79” of the Complaint.
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`13.
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`Canvas MW denies the allegations contained in paragraphs “80” through “83” of
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`the Complaint to the extent that such allegations are directed towards Canvas MW and refers all
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`questions of law to this honorable Court.
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`14.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “80” through “83” of the Complaint to the extent
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`that such allegations relate to other parties and refers all questions of law to this honorable Court.
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS TO THE THIRD CAUSE OF ACTION
`SOUNDING IN STRICT LIABILITY
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`Canvas MW repeats and reiterates each and every response hereinbefore made with
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`15.
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`the same force and effect as though the same were set forth at length herein in response to
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`paragraph “84” of the Complaint.
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`16.
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`Canvas MW denies the allegations contained in paragraphs “85” through “93” of
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`the Complaint to the extent that such allegations are directed towards Canvas MW and refers all
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`questions of law to this honorable Court.
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`17.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “85” through “93” of the Complaint to the extent
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`that such allegations relate to other parties and refers all questions of law to this honorable Court.
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`AS TO THE FOURTH CAUSE OF ACTION
`[FOR] LABOR LAW VIOLATIONS
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`Canvas MW repeats and reiterates each and every response hereinbefore made with
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`18.
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`the same force and effect as though the same were set forth at length herein in response to
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`paragraph “94” of the Complaint.
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`19.
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`Canvas MW denies the allegations contained in paragraphs “95” through “112” of
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`the Complaint to the extent that such allegations are directed towards Canvas MW and refers all
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`questions of law to this honorable Court.
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`20.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “95” through “112” of the Complaint to the extent
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`that such allegations relate to other parties and refers all questions of law to this honorable Court.
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`1
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`4 of 19
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS TO THE FIFTH CAUSE OF ACTION
`AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY
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`Canvas MW repeats and reiterates each and every response hereinbefore made
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`21.
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`with the same force and effect as though the same were set forth at length herein in response to
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`paragraph “113” of the Complaint.
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`22.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “114” through “120” of the Complaint, as they
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`relate to another defendant, and refers all questions of law to this honorable Court. Insofar as the
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`allegations contained in these paragraphs are directed to Canvas MW, they are denied.
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`AS TO THE SIXTH CAUSE OF ACTION
`SOUNDING IN CONSPIRACY AND
`COLLECTIVE LIABILITY/CONCERT OF ACTION
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`Canvas MW repeats and reiterates each and every response hereinbefore made
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`23.
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`with the same force and effect as though the same were set forth at length herein in response to
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`paragraph “121” of the Complaint.
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`24.
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`Canvas MW denies the allegations contained in paragraphs “122” through “136”
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`of the Complaint to the extent that such allegations are directed towards Canvas MW and refers
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`all questions of law to this honorable Court.
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`25.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “122” through “136” of the Complaint to the
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`extent that such allegations relate to other parties and refers all questions of law to this honorable
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`Court.
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`AS TO THE SEVENTH CAUSE OF ACTION
`AGAINST DEFENDANT CONTRACTORS
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`Canvas MW repeats and reiterates each and every response hereinbefore made
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`26.
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`with the same force and effect as though the same were set forth at length herein in response to
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`paragraph “137” of the Complaint.
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`27.
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`truth of the allegations contained in paragraphs “138” through “150” of the Complaint, as they
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`relate to other parties, and refers all questions of law to this honorable Court. Insofar as the
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`allegations contained in these paragraphs are directed to Canvas MW, they are denied.
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`AS TO THE EIGHTH CAUSE OF ACTION
`FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
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`Canvas MW repeats and reiterates each and every response hereinbefore made
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`28.
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`with the same force and effect as though the same were set forth at length herein in response to
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`paragraph “151” of the Complaint.
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`29.
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`Canvas MW denies the allegations contained in paragraphs “152” through “166”
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`of the Complaint to the extent that such allegations are directed towards Canvas MW and refers
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`all questions of law to this honorable Court.
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`30.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “152” through “166” of the Complaint to the extent
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`that such allegations relate to other parties and refers all questions of law to this honorable Court.
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`AS TO THE NINTH CAUSE OF ACTION
`[FOR] JOINT AND SEVERAL LIABILITY
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`Canvas MW repeats and reiterates each and every response hereinbefore made
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`31.
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`with the same force and effect as though the same were set forth at length herein in response to
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`paragraph “167” of the Complaint.
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`32.
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`Canvas MW denies the allegations contained in paragraphs “168” through “179”
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`of the Complaint to the extent that such allegations are directed towards Canvas MW and refers
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`all questions of law to this honorable Court.
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`33.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs “168” through “179” of the Complaint to the extent
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`that such allegations relate to other parties and refers all questions of law to this honorable Court.
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`NYSCEF DOC. NO. 18
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`AS TO THE TENTH CAUSE OF ACTION
`[FOR] PUNITIVE DAMAGES
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`Canvas MW repeats and reiterates each and every response hereinbefore made with
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`34.
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`the same force and effect as though the same were set forth at length herein in response to
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`paragraph “180” of the Complaint.
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`35.
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`Canvas MW denies the allegations contained in paragraph “181” of the Complaint
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`to the extent that such allegations are directed towards Canvas MW and refers all questions of law
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`to this honorable Court.
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`36.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraph “181” of the Complaint to the extent that such
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`allegations relate to other parties and refers all questions of law to this honorable Court.
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` AS TO THE ELEVENTH CAUSE OF ACTION
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` [FOR] SPOUSAL LOSS OF CONSORTIUM
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`Canvas MW repeats and reiterates each and every response hereinbefore made
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`37.
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`with the same force and effect as though the same were set forth at length herein in response to
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`paragraph “182” of the Complaint.
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`38.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraph “183” of the Complaint and refers all questions of
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`law to this honorable Court.
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`39.
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`Canvas MW denies the allegations contained in paragraph “184” of the Complaint
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`to the extent that such allegations are directed towards Canvas MW and refers all questions of law
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`to this honorable Court.
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`40.
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`Canvas MW denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraph “184” of the Complaint to the extent that such
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`allegations relate to other parties and refers all questions of law to this honorable Court.
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`7 of 19
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`1.
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`The Complaint fails to state a cause of action upon which relief can be granted
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`against Canvas MW.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`2.
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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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`3.
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`Plaintiffs’ claims are barred by the operation of the doctrine of estoppel.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`4.
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`Plaintiff has waived all claims against Canvas MW.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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`5.
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`This Court lacks both general and specific personal jurisdiction over Canvas MW.
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`The answering defendant further objects to and denies an exercise of general jurisdiction over it,
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`notwithstanding any Plaintiffs’ allegations in the complaint purporting to establish a basis for
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`general jurisdiction (see, e.g., Daimler AG v. Bauman, 571 U.S. 117 (2014); BNSF Ry. Co. v.
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`Tyrrell, 137 S.Ct. 1549 (2017); Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., S.F. Cty, 137 S.Ct.
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`1773 (2017); cf., Gibson v. Air & Liquid Sys. Corp., 173 AD3d 519 [1st Dept., 2019]).
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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`6.
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`The venue of this action is improper.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
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`7.
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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 AN EIGHTH AFFIRMATIVE DEFENSE
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`8.
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`Plaintiffs’ speculative, uncertain and/or contingent damages have not accrued and
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`are not recoverable.
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`9.
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`This cause of action must be dismissed in the event Plaintiff has another action
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`pending against Canvas MW for the same cause of action in another court.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
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`10.
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`In the event Plaintiff executed a settlement agreement releasing and discharging
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`Canvas MW from all claims arising out of Plaintiffs’ alleged injury, all claims alleged by
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`Plaintiff should be dismissed.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`11.
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`To the extent that Plaintiff has given a release or covenant not to sue or not to
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`enforce a judgment to an alleged co-tortfeasor of Canvas MW, Plaintiffs’ claim herein is reduced
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`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 TWELFTH AFFIRMATIVE DEFENSE
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`12.
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`Plaintiff was not injured by exposure to Canvas MW’s products.
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
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`13.
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`In the event that Plaintiff was employed by any of the Defendants, Plaintiffs’ sole
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`and exclusive remedy is under the Worker’s Compensation Law of the State of New York.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`14.
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`Insofar as the Complaint, and each cause of action considered separately, alleges a
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`cause of action accruing on or after September 1, 1975 to recover damages for personal injuries,
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`the amount of damages recoverable thereon must be diminished by reason of the culpable
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`conduct attributable to Plaintiff, 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
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`which caused the damages.
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`1
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`15.
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`Insofar as the Complaint, and each cause of action considered separately, alleges a
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`cause of action accruing on or after September 1, 1975 each such cause of action is barred by
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`reason of the culpable conduct attributable to Plaintiff, including contributory negligence and
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`assumption of risk.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`16.
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`To the extent that Plaintiff was injured as alleged in the Complaint, which Canvas
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`MW 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 Canvas MW.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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`17.
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`To the extent that Plaintiff was injured as alleged in the Complaint, which Canvas
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`MW denies, such injury was the result of intervening and/or superseding acts or omissions of
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`parties over whom Canvas MW had no control or right to control.
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
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`18.
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`At all times relevant hereto, the knowledge of Plaintiffs’ employer(s) was superior
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`to that of Canvas MW 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
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`was the duty of said employer, not of Canvas MW, and breach of that duty was an intervening
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`and/or superseding cause of the injuries allegedly sustained by Plaintiff.
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
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`19.
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`At all times during the conduct of their corporate operations, the agents, servants
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`and/or employees of Canvas MW 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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`1
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`20.
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`To the extent that Plaintiff sustained injuries from the use of Canvas MW
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`products, which Canvas MW denies, such injuries resulted from the unforeseeable misuse, abuse,
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`alteration, modification, and/or unauthorized handling of the product by Plaintiff, or by third
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`parties, over whom Canvas MW had no control or right to control.
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`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
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`21.
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`Plaintiff voluntarily assumed the risks associated with the use of or exposure to
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`the products at issue.
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`22.
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`Canvas MW had no knowledge or reason to know of any alleged risks associated
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`with finished asbestos-containing products at any time during the purported peril complained of
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`in the Complaint.
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`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
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`23.
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`Plaintiff contributed to the injuries alleged by the use of other substances,
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`products, medications and drugs.
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`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`24.
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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
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`Canvas MW as there was no privity of contract between Plaintiff and Canvas MW.
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`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`25.
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`Plaintiff never purchased, directly or indirectly, any asbestos-containing product
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`or materials from Canvas MW, nor did Plaintiff ever receive or rely upon any representation
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`allegedly made by Canvas MW.
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`1
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`26.
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`To the extent that Plaintiff was exposed to any product manufactured or supplied
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`by Canvas MW, which Canvas MW denies, said exposure was de minimis and not a substantial
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`contributing factor to any asbestos-related disease which Plaintiff may have developed, thus
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`requiring dismissal of the Complaint against Canvas MW.
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`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`27.
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`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
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`indispensable parties.
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`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`28.
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`To the extent that Plaintiff is entitled to damages, which Canvas MW denies,
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`Canvas MW is entitled to a set-off for all Workers’ Compensation payments received by
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`Plaintiff.
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`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
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`29.
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`In accordance with CPLR 1601, Canvas MW’s liability for non-economic loss is
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`limited to its equitable share of the total liability for non-economic loss.
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`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
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`30.
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`In accordance with CPLR 4545(c), Canvas MW is entitled to a set-off for any past
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`or future costs or expenses incurred or to be incurred by Plaintiff for medical care, custodial care
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`of rehabilitation services, loss of earnings or other economic loss, which has been or will with
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`reasonable certainty be replaced or indemnified in whole or in part from a collateral source.
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`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
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`31.
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`Plaintiffs’ action is barred by the government contractor’s defense to the extent
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`Canvas MW was a contractor supplying materials, labor and or services to the United States
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`Government.
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`1
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`12 of 19
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 PM
`NYSCEF DOC. NO. 18
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`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`32.
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`At all relevant times, the state of the medical, scientific, and industrial knowledge,
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`the state of the art, practice, and prevailing industry standards regarding asbestos-containing
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`products was such that Canvas MW neither knew, had reason to know, nor could have known of
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`any foreseeable or significant risk or harm to Plaintiff in the normal or expected use of Canvas
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`MW’s products.
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`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
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`33.
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`Any injuries sustained by Plaintiff resulted from Plaintiffs’ alleged use of or
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`exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance
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`with mandatory specifications established by persons or entities other than Canvas MW,
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`including, without limitation, agencies, agents and departments of the United States, which
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`persons or entities possessed, at the time of such manufacture or sale, knowledge equal to or
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`greater than that of Canvas MW concerning the properties and characteristics of asbestos and
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`asbestos-containing products.
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`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
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`34.
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`Any asbestos-containing products were supplied according to the purchaser’s or
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`user’s specifications and standards.
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`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
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`35.
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`Canvas MW was under no legal duty to warn Plaintiff of any hazards from the use
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`of any asbestos-containing products. The actual purchasers and/or those under the purchasers’
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`control, Plaintiffs’ employer(s), and the owners and lessors of the properties at which Plaintiff
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`alleges exposure to such products, were in a far better position to warn Plaintiff and, if any such
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`warning was legally required, which is expressly denied; their failure to do so was a superseding
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`and proximate cause of Plaintiffs’ alleged injury.
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`NYSCEF DOC. NO. 18
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`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`36.
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`Plaintiff was reasonably and adequately warned of any alleged risks associated
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`with the use of or exposure to asbestos-containing products.
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`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
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`37.
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`Timely and/or proper notice was not given to Canvas MW as to any alleged
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`breach of warranty.
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`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
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`38.
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`To the extent Plaintiffs’ claims are based on an alleged breach of warranty,
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`Plaintiff did not rely on any warranty.
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`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
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`39.
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`Any oral warranties upon which Plaintiff allegedly relied are inadmissible under
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`the Statute of Frauds.
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`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
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`40.
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`That to the extent that plaintiff relies on Section 4 of the New York Laws 1986, c.
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`682 as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and
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`deprive(s) the answering Defendant of its constitutional rights and is/are wholly void and
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`unenforceable.
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`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
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`41.
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`This action does not fall within one or more of the exceptions set forth in CPLR§
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`1602 and Canvas MW is responsible only for its allocated share of any verdict that may be
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`rendered against it.
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`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
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`42.
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`Canvas MW’s conduct was not reckless, malicious, willful, or grossly negligent,
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`and consequently, Plaintiff is not entitled to exemplary and/or punitive damages.
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`NYSCEF DOC. NO. 18
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`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`43.
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`Any claims by Plaintiff for exemplary and/or punitive damages are barred
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`because such damages are not recoverable or warranted.
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`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
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`44.
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`That to the extent the plaintiff seeks punitive damages against this answering
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`Defendant, and rely on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving and
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`maintaining the action, such damages are improper and are not authorized by law since this statute
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`does not revive any claims for punitive damages, leaving such claims time-barred in their entirety.
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`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
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`45.
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`These actions and the causes pleaded by the plaintiffs herein are barred by virtue of
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`Article 1, Section 10 of the United States Constitution.
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`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
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`46.
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`That to the extent that plaintiff seeks punitive damages against the answering
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`Defendant, these damages are improper and unwarranted, not authorized by law, and are
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`unconstitutional. Subjecting this Defendant to multiple trials and the multiple imposition of
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`punitive damages for a single course of conduct is a violation of both substantive and procedural
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`due process under the Constitution of the United States and the Constitution of the State of New
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`York.
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`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
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`47.
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`That plaintiff’s demand for punitive damages is barred by the proscription of the
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`Eighth Amendment to the United States Constitution, as applied to the States through the
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`Fourteenth Amendment and Article I, Section 5 of the New York State Constitution, prohibiting
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`the imposition of excessive fines.
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`1
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`NYSCEF DOC. NO. 18
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`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
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`RECEIVED NYSCEF: 12/28/2023
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`48.
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`That plaintiff’s demand for punitive damages is barred by the “ex post facto” clause
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`of the United States Constitution.
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`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
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`49.
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`All defenses which have been or will be asserted by other Defendants in this
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`action are adopted and incorporated by reference as if fully set forth herein. In addition, Canvas
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`MW will rely upon any and all other further defenses which become available or appear during
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`discovery in this action and hereby specifically reserves its right to amend its answer for the
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`purpose of asserting any such additional affirmative defenses.
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`AS AND FOR CROSS-CLAIMS
`AGAINST EACH OF THE OTHER DEFENDANTS
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`1.
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`If damages were sustained at the time(s) and place(s) set forth in the Complaint
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`through any carelessness, recklessness and/or negligence other than that of Plaintiff, including,
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`but not limited to, the manufacture and distribution of asbestos-containing products, breach of
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`warranty or misrepresentations, either express or implied, and/or through strict liability in tort,
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`such damages, in whole or in part, will have been caused and brought about by reason of the
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`carelessness, recklessness and/or negligence of each of the other Defendants named in this
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`action.
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`2.
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`If Plaintiff should recover a judgment against Canvas MW, by operation of law
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`or otherwise, Canvas MW will be entitled to judgment, contribution and/or indemnification, in
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`whole or in part, from each of the other Defendants named in this action, their agents, servants
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`and/or employees, by reason of their carelessness, recklessness, and/or negligence for the amount
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`of any such recovery, in accordance with principles of law regarding apportionment of fault and
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`damages, along with costs, disbursements and reasonable expenses of the investigation and
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`defense of this action, including reasonable attorneys’ fees.
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`1
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`NYSCEF DOC. NO. 18
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`ANSWER TO ALL CROSS-CLAIMS
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`Canvas MW hereby answers the cross-claims of each of the other defendants named in
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`this action, however asserted or alleged, and says:
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`1.
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`All cross-claims for contribution and/or indemnification alleged against Canvas
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`MW by any party Defendant are denied.
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`NYSCEF DOC. NO. 18
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`WHEREFORE, Defendant Canvas MW demands judgment dismissing the Complaint as
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
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`to it, with prejudice, together with the costs, attorney fees and disbursements of this action, and,
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`to the extent of any recovery by Plaintiffs against Canvas MW herein, further demands judgment
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`for contribution and/or indemnification against each of the other defendants named in the
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`Complaint together with Canvas MW’s costs and disbursements in this action.
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`Dated: New York, New York
`December 28, 2023
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`TO:
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`LEADER BERKON COLAO
`& SILVERSTEIN LLP
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`/s/ Ryan Hersh
`By:
` Ryan Hersh, Esq.
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`Attorneys for Defendant
` Canvas MW, LLC, formerly known as
`The Marley-Wylain Company, LLC
`630 Third Avenue
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` New York, New York 10017
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`(212) 486-2400
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`Joseph W. Belluck, Esq.
`BELLUCK & FOX, LLP
`Attorneys for Plaintiff(s)
`546 Fifth Avenue, 5th Floor
`New York, New York, 10036
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`1
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`FILED: ERIE COUNTY CLERK 12/28/2023 02:39 P
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`NYSCEF DOC. NO. 18
`NYSCEF DOC. NO. 18
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`INDEX NO. 814633/2023
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/28/2023
`RECEIVED NYSCEF: 12/28/2023
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`VERIFICATION
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`SS:
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`)x
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`STATE OF NEW YORK
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`COUNTY OF NEW YORK.)
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`Ryan Hersh, being duly sworn, deposes and says that I am an attorney at law with the
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`firm of Leader Berkon Colao & Silverstein LLP, having their offices at 630 Third Avenue, in the
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`City, County and State of New York, attorneys for defendant Canvas MW, LLC, formerly
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`known as The Marley-Wylain Company, LLC (“Canvas MW”’), in the within action; that I have
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`read the foregoing Verified Answerto Plaintiffs’ Verified Complaint, Cross-Claim and Answer
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`to Cross-Claims of Canvas MW,and knowthe contents thereof; that the sameis true upon
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`information and belief and I believe it to be true; that the grounds of my belief are public records,
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`records and documents currently in m