FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`---------------------------------------------------------------------x
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`
`
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`
`
`-against-
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`
` Plaintiff(s),
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`
`TROY SHANE SMITH and ALLYSON JANE SMITH,
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`84 LUMBER COMPANY, et al.,
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` Defendants.
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`----------------------------------------------------------------------x
`COUNSELORS:
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`Index No: 814633/2023
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`
`GENERAL ELECTRIC
`COMPANY'S VERIFIED
`ANSWER TO PLAINTIFFS’
`VERIFIED COMPLAINT,
`AFFIRMATIVE DEFENSES,
`CROSS-CLAIMS, AND ANSWER
`TO CROSS-CLAIMS
`
`PLEASE TAKE NOTICE that Defendant GENERAL ELECTRIC COMPANY,
`
`(hereinafter “GE”), “by its attorneys, Tanenbaum Keale LLP, hereby answers Plaintiffs’ Verified
`Complaint (hereinafter "Complaint") as follows:
`
`
`THE PARTIES
`GE denies any knowledge or information sufficient to form a belief as to the truth of the
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`1.
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`allegations contained in paragraphs 1 through 3 of Plaintiffs’ Complaint and leaves the Plaintiffs
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`to their proofs.
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`2.
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`The statements contained in paragraph 4 of Plaintiffs’' Complaint do not require any
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`admissions or denials as said statements merely define "Defendants" as used within the context of
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`Plaintiffs’ Complaint.
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`3.
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`GE, other than admitting that it is a New York Corporation, denies the remaining
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`allegations contained in paragraphs 5 through 64 of Plaintiffs’ Complaint to the extent they pertain
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`to GE. GE denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations contained in paragraphs 5 through 64 of Plaintiffs’ Complaint as they relate to any
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`other defendant or third party in this action. GE also refers all conclusions of law contained in
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`paragraphs 5 through 64 to the Court.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`4.
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`GE denies each and every allegation contained in paragraphs 65 through 69 of Plaintiffs’
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`Complaint to the extent that such allegations are directed toward GE. GE denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 65
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`through 69 of Plaintiffs’ Complaint as they relate to any other defendant or third party in this
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`action. GE also refers all conclusions of law contained in paragraphs through 65 through 69 to the
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`Court.
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` AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE,
`GE ANSWERS AS FOLLOWS:
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`5.
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`GE repeats and reiterates each and every answer to each and every allegation contained in
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`paragraphs 1 through 69 of Plaintiffs’ Complaint with the same force and effect as if fully set forth
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`at length herein answer to paragraph 70 of Plaintiffs’ Complaint.
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`6.
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`GE denies the allegations contained in paragraphs 71 through 78 of Plaintiffs’ Complaint,
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`including their subparts, to the extent they pertain to GE and 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 any other
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`defendant in this action. GE also refers all conclusions of law contained in 71 through 78 to the
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`Court.
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`AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH
`OF WARRANTY,
`GE ANSWERS AS FOLLOWS
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`7.
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`GE repeats and reiterates each and every answer to each and every allegation contained in
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`paragraphs 1 through 78 of Plaintiffs’ Complaint with the same force and effect as if fully set forth
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`at length herein answer to paragraph 79 f Plaintiffs’ Complaint.
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`8.
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`GE denies the allegations contained in paragraphs 80 through 83 of Plaintiffs’ Complaint
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`to the extent they pertain to GE and denies knowledge or information sufficient to form a belief as
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`to the truth of the allegations to the extent they pertain to any other defendant in this action. GE
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`also refers all conclusions of law contained in paragraphs 80 through 83 to the Court.
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`AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT
`LIABILITY,
`GE ANSWERS AS FOLLOWS:
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`9.
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
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`paragraphs 1 through 83 of Plaintiffs’ Complaint with the same force and effect as if fully set forth
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`at length herein answer to paragraph 84 of Plaintiffs’ Complaint.
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`10.
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`GE denies the allegations contained in paragraphs 85 through 93 of Plaintiffs’ Complaint
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`to the extent they pertain to GE and denies knowledge or information sufficient to form a belief as
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`to the truth of the allegations to the extent they pertain to any other defendant in this action. GE
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`also refers all conclusions of law contained in paragraphs 85 through 93 to the Court.
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`AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS,
`GE ANSWERS AS FOLLOWS:
`
`11.
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
`
`paragraphs 1 through 93 of Plaintiffs’ Complaint with the same force and effect as if fully set forth
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`at length herein answer to paragraph 94 of Plaintiffs’ Complaint.
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`12.
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`GE denies each and every allegation contained in paragraphs 95 through 112 of Plaintiffs’
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`Complaint, including their subparts, to the extent that such allegations are directed toward GE. GE
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations
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`contained in paragraphs 95 through 112 of Plaintiffs’ Complaint as they relate to any other party
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`or third party in this action. GE also refers all conclusions of law contained in paragraphs 95
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`through 112 to the Court.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
`METROPOLITAN LIFE INSURANCE COMPANY,
`GE ANSWERS AS FOLLOWS:
`
`
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`13.
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
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`paragraphs 1 through 112 of Plaintiffs’ Complaint with the same force and effect as if fully set
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`forth at length herein answer to paragraph 113 of Plaintiffs’ Complaint.
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`14.
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`GE denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations contained in paragraphs 114 through 120 of Plaintiffs’ Complaint as they relate to
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`defendant Metropolitan Life Insurance Company and leaves the Plaintiffs to their proofs.
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`AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
`COLLECTIVE LIABILITY/CONCERT OF ACTION,
`GE ANSWERS AS FOLLOWS:
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`15.
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
`
`paragraphs 1 through 120 of Plaintiffs’ Complaint with the same force and effect as if fully set
`
`forth at length herein answer to paragraph 121 of Plaintiffs’ Complaint.
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`16.
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`GE denies each and every allegation contained in paragraphs 122 through 136 of
`
`Plaintiffs’ Complaint, including their subparts, to the extent that such allegations are directed
`
`toward GE. GE denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraphs 122 through 136 of Plaintiffs’ Complaint as they relate to any
`
`other party or third party in this action. GE also refers all conclusions of law contained in
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`paragraphs 122 through 136 to the Court.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT
`CONTRACTORS,
`GE ANSWERS AS FOLLOWS:
`
`17.
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
`
`paragraphs 1 through 136 of Plaintiffs’ Complaint with the same force and effect as if fully set
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`forth at length herein answer to paragraph 137 of Plaintiffs’ Complaint.
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`18.
`
`The statements contained in paragraph 138 of Plaintiffs’ Complaint do not require any
`
`admissions or denials as said statements merely define "contractor(s)" as used within the context
`
`of Plaintiffs’ Complaint.
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`19.
`
`GE denies each and every allegation contained in paragraphs 139 through 150 of Plaintiffs’
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`Complaint, including their subparts, to the extent that such allegations are directed toward GE. GE
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations
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`contained in paragraphs 139 through 150 of Plaintiffs’ Complaint as they relate to any other party
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`or third party in this action. GE also refers all conclusions of law contained in paragraphs 139
`
`through 150 to the Court.
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`AS AND FOR AN EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY
`AGAINST CERTAIN DEFENDANTS,
`GE ANSWERS AS FOLLOWS:
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`20.
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
`
`paragraphs 1 through 150 of Plaintiffs’ Complaint with the same force and effect as if fully set
`
`forth at length herein answer to paragraph 151 of Plaintiffs’ Complaint.
`
`21.
`
`GE denies each and every allegation contained in paragraphs 152 through 165 of Plaintiffs’
`
`Complaint to the extent that such allegations are directed toward GE. GE denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 152
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`through 165 of Plaintiffs’ Complaint as they relate to any other party or third party in this action.
`
`GE also refers all conclusions of law contained in paragraphs 152 through 165 to the Court.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`22.
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`In response to paragraph 166 of Plaintiffs’ Complaint, GE agrees that the Substantive Law
`
`of Admiralty governs some or all of the allegations contained in Plaintiffs’ causes of action but
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`denies that the applicability of the Substantive Law of Admiralty precludes removal of some of all
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`or those allegations.
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`AS AND FOR A NINTH CAUSE OF ACTION
`FOR JOINT AND SEVERAL LIABILITY,
`GE ANSWERS AS FOLLOWS:
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`23.
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
`
`paragraphs 1 through 166 of Plaintiffs’ Complaint with the same force and effect as if fully set
`
`forth at length herein answer to paragraph 167 of Plaintiffs’ Complaint.
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`24.
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`GE denies each and every allegation contained in paragraphs 168 through 179 of Plaintiffs’
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`Complaint to the extent that such allegations are directed toward GE. GE denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 166
`
`through 177 of Plaintiffs’ Complaint as they relate to any other party or third party in this action.
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`GE also refers all conclusions of law contained in paragraphs 168 through 179 to the Court.
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`AS AND FOR A TENTH CAUSE OF ACTION FOR PUNITIVE
`DAMAGES,
`GE ANSWERS AS FOLLOWS:
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`25.
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
`
`paragraphs 1 through 179 of Plaintiffs’ Complaint with the same force and effect as if fully set
`
`forth at length herein answer to paragraph 180 of Plaintiffs’ Complaint.
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`26.
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`GE denies each and every allegation contained in paragraph 181 of Plaintiffs’ Complaint
`
`to the extent that such allegations are directed toward GE. GE denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in paragraph 181 of Plaintiffs’
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`Complaint as they relate to any other party or third party in this action. GE also refers all
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`conclusions of law contained in paragraph 181 to the Court.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`AS AND FOR AN ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF
`CONSORTIUM,
` GE ANSWERS AS FOLLOWS:
`
`GE repeats and reiterates each and every answer to each and every allegation contained in
`
`27.
`
`paragraphs 1 through 181 of Plaintiffs’ Complaint with the same force and effect as if fully set
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`forth at length herein answer to paragraph 182 of Plaintiffs’ Complaint.
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`28.
`
`GE denies each and every allegation contained in paragraphs 183 and 184 of Plaintiffs’
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`Complaint to the extent that such allegations are directed toward GE. GE denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 183
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`and 184 of Plaintiffs’ Complaint as they relate to any other party or third party in this action. GE
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`also refers all conclusions of law contained in paragraphs 183 and 184 to the Court.
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`29.
`
`Plaintiffs’ Complaint fails to contain any allegations whatsoever against GE and fails to
`
`state a claim upon which relief can be granted against GE.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`30.
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`That GE acted reasonably and with due care toward Plaintiffs.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`31.
`
`That GE owed no duty to Plaintiffs.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`32.
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`That GE violated no duty owed to Plaintiffs.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`33.
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`That at all times relevant hereto, GE complied with all applicable laws, regulations and
`
`standards.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`34.
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`In the event that Plaintiffs relies on New York Law, L. 1986 C. 682 Sections 4 and 12 as
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`grounds for maintaining this action, these sections are unconstitutional, and this action is time
`
`barred.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`35.
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`The claims are barred by the doctrines of res judicata and/or collateral estoppel.
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`
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`36.
`
`That GE was not served in accordance with the provisions of the New York Civil Practice
`
`Law and Rules and therefore Plaintiffs’ Complaint must be dismissed due to insufficient process
`
`and insufficient service of process.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`37.
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`Plaintiffs’ Complaint contains no information regarding dates of exposure, injury or
`
`diagnosis, or any other information necessary to determine whether Plaintiffs’ claims were timely
`
`filed. GE asserts the claims may be barred under the terms of any relevant statutes of limitations
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`or repose from the jurisdiction or jurisdictions whose limitations or repose provisions govern.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`38.
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`Plaintiffs have failed to plead any basis for claims of misrepresentation, deliberate
`
`concealment, or fraud against GE, much less state such claims with the specificity required by the
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`New York Civil Practice Law and Rules and Federal Rules of Civil Procedure.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`39.
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`That one or more of the causes of action have not been maintained in a timely fashion and
`
`Plaintiffs have neglected the same and should be barred by the doctrine of laches.
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`40.
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`That any injuries and/or damages sustained by the Plaintiffs, as alleged in Plaintiffs’
`
`Complaint herein, were caused in whole or in part by the contributory negligence and/or culpable
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`conduct of said Plaintiffs and not as a result of any contributory negligence and/or culpable conduct
`
`on the part of the answering defendant, which either bars or reduces Plaintiffs’ claims herein an
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`amount to be determined by the trier of fact.
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`41.
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`If Plaintiffs sustained any injury as alleged, which is denied, the same resulted, upon
`
`information and belief, from their own negligence in failing to care for their own health by using
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`tobacco products over an extended period of time. The use of said tobacco products is the sole,
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`direct and proximate cause, or a contributing cause, of the alleged injury or damage, if any, about
`
`which Plaintiffs complain.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
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`42.
`
`If Plaintiffs sustained any injuries or damages as alleged in Plaintiffs’ Complaint, all of
`
`which GE specifically denies, then such injuries and damages were caused or contributed to by
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`reason of the negligence of said Plaintiffs, by reason of, but not limited to, said Plaintiffs’ failure
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`to wear a respirator, engage in safe work practices or to protect themselves adequately from risk
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`of harm.
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`
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`43.
`
`If Plaintiffs sustained any injury or damage, which is denied, then such injury or damage
`
`were proximately caused or contributed to by exposure to and inhalation of noxious and deleterious
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`fumes and residues from industrial products and by-products prevalent on Plaintiffs’ job sites and
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`substances other than those manufactured or sold by GE, if any, and by cumulative exposure to all
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`types of environmental and industrial pollutants of air and water.
`
`
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`Insofar as Plaintiffs’ Complaint and each cause of action considered separately allege a
`
`44.
`
`cause of action accruing before September 1, 1975, each such cause of action is barred by reason
`
`of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption
`
`of the risk.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`This action may be barred by the applicable state and/or federal industrial insurance and/or
`
`45.
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`worker's compensation laws which may provide an exclusive remedy for the damages which
`
`Plaintiffs allegedly sustained, if any.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`In the event that Plaintiffs were employed by this answering defendant, Plaintiffs’ sole and
`
`46.
`
`exclusive remedy is under the Workers’ Compensation Law of the State of New York.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`That the accident and injuries complained of in the Plaintiffs’ Complaint were caused or
`
`47.
`
`brought about by the negligence of a third person or persons over whom this answering defendant
`
`had no control and for whose acts the answering defendant was in no way responsible.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`48.
`
`That by entering into the activity in which the Plaintiffs were engaged at the time of the
`
`occurrence set forth in Plaintiffs’ Complaint, said Plaintiffs knew the hazards thereof and the
`
`inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries
`
`and damages were sustained by the Plaintiffs herein as alleged in Plaintiffs’ Complaint arose from
`
`and were caused by the reason of such risks voluntarily undertaken by the Plaintiffs in their
`
`activities and such risks were assumed and accepted by them in performing and engaging in said
`
`activities.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`49.
`
`There should be no recovery against GE because of any failure to warn or inadequacy of
`
`warning because, upon information and belief, at all times pertinent to Plaintiffs’ claims, said
`
`Plaintiffs were possessed of or should have been possessed of good and adequate knowledge which
`
`negated any need for said warning and/or Plaintiffs were required to follow specific written safety
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`procedures as established by their employers which negated the need or requirement for any such
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`warning.
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`50. Whatever damages Plaintiffs may have suffered, if any, were solely or proximately caused
`
`by the Plaintiffs when they assumed and voluntarily exposed themselves to specific and
`
`appreciated risks pursuant to the doctrine of volenti non fit injuria and assumption of risk, for
`
`which Plaintiffs are barred from receiving damages, or, in the alternative, for which recovery is
`
`reduced.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`51.
`
`That after the product(s) left the control of this answering defendant, they were subject to
`
`abuse, alteration, change, improper installation or operation by persons not in the employ or control
`
`of this defendant, which alteration, change, abuse, improper installation or operation proximately
`
`caused the injuries complained of by Plaintiffs in Plaintiffs’ Complaint. Such change in condition
`
`bars the action as against this defendant.
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`52.
`
`The alleged injuries and damages of which the Plaintiffs complain were caused by
`
`unauthorized, unattended, or improper use of the products complained of, and as a result of failure
`
`to exercise reasonable and ordinary care, caution and vigilance for which GE is not liable or not
`
`responsible.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`53.
`
`That any oral warranties upon which Plaintiffs allegedly relied are inadmissible and
`
`unavailable because of the provisions of the applicable Statute of Frauds.
`
`
`
`
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`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE,
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`DEFENDANT GE STATES:
`
`54.
`
`That Plaintiffs, their coworkers or employers misused, abused, mistreated and misapplied
`
`the product(s) designated as asbestos material as alleged in Plaintiffs’ Complaint herein.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`55. Whatever damages Plaintiffs may have suffered, if any, were due solely or in part to the
`
`failure of Plaintiffs’ employers to take adequate precautions and provide Plaintiffs with a safe place
`
`to work.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`56. While this answering defendant denies the allegations of Plaintiffs with respect to
`
`negligence, statutory liability, strict liability, injury and damages, to the extent that Plaintiffs may
`
`be able to prove the same, they were the result of intervening and/or interceding acts of superseding
`
`negligence on the part of third-parties over which this defendant had neither control nor right of
`
`control and are not recoverable as against this defendant.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`57.
`
`In accordance with CPLR 1601 et seq., the liability of this answering defendant, if any, to
`
`the Plaintiffs for non-economic loss is limited to this defendant’s equitable share, determined in
`
`accordance with the relative culpability of all persons or entities contributing to the total liability
`
`for non-economic loss, including named parties and others over whom Plaintiffs could have
`
`obtained personal jurisdiction with due diligence.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`58.
`
`In the event Plaintiffs recover a verdict or judgment against the defendant, then said verdict
`
`or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been, or
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`FILED: ERIE COUNTY CLERK 12/29/2023 05:57 PM
`NYSCEF DOC. NO. 22
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`will, with reasonable certainty, replace or indemnify Plaintiffs, in whole or in part, for any past or
`
`future claimed economic loss, from any collateral source such as insurance, social security,
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`workers compensation or employee benefit programs.
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`59.
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`If Plaintiffs have heretofore settled or should hereafter settle or have any judgment rendered
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`in their favor for any of their alleged injuries and damages with any entity, then GE is entitled to
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`a setoff in the amount of said settlement.
`
`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`60.
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`Plaintiffs contributed to their illness and/or injuries, in whole or in part, by the use of other
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`substances, product, drugs or medications.
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`61.
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`The place of trial of this action is stated for an improper venue.
`
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`62.
`
`In the event it should be proven at the time of trial that this answering defendant is subject
`
`to market share liability, then this defendant’s respective share of such liability would be of such
`
`a de minimus amount as to make its contribution for damages negligible and this defendant would
`
`be entitled to contribution, either in whole or in part, from the co-defendants not represented by
`
`this answer.
`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`63.
`
`At all times material to Plaintiffs’ claims, the state of medical and scientific knowledge did
`
`not provide GE with knowledge, either actual or constructive, and by the application of reasonable
`
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`developed human skill and foresight GE had no reason to know the propensities, if any, of
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`“asbestos,” “asbestos dust,” “asbestos fibers” and/or “asbestos products” to cause or contribute to
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`the creation of medical conditions or circumstances involving alleged injuries to the lungs,
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`respiratory system, larynx, stomach or other bodily organs, bone and tissue, and also including
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`asbestosis, respiratory disorders, risk of mesothelioma or any other illness of any type whatsoever
`
`at the times relevant to Plaintiffs’ claims.
`
`
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`64.
`
`This answering defendant did not give, make or otherwise extend warranties, whether
`
`express or implied, upon which Plaintiffs could rely.
`
`
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`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`65.
`
`This answering defendant breached no warranties, whether express or implied.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`66.
`
`Any cause of action against GE based on a breach of warranties is barred because of failure
`
`to give GE timely notice required by the Uniform Commercial Code enacted in New York.
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`67.
`
`The doctrine of strict liability in tort is inapplicable to this litigation.
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`68.
`
`To the extent Plaintiffs’ Complaint and the causes of action pled therein fail to identify
`
`GE as the manufacturer in fact of any injury-causing products, or fail to identify any product
`
`manufactured by GE as the cause in fact of any injuries to Plaintiffs, Plaintiffs’ Complaint fails to
`
`
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`state a claim upon which relief can be granted, inasmuch as such claims, if granted, would
`
`contravene GE's constitutional rights to substantive and procedural due process of law as
`
`guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and
`
`the Constitution of the State of New York or any other applicable jurisdiction.
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`69.
`
`Plaintiffs’ claim for relief, if granted, would constitute a taking of private property for
`
`public use without just compensation, and would contravene GE's rights as preserved by the Fifth
`
`and Fourteenth Amendments to the Constitution of the United States and the Constitution of the
`
`State of New York or any other applicable jurisdiction.
`
`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`70.
`
`To the extent Plaintiffs’ Complaint and the causes of action pled therein fail to identify
`
`GE as the manufacturer in fact of any injury-causing products, or fail to identify any product
`
`manufactured by GE as the cause in fact of any injuries to Plaintiffs, said Complaint fails to state
`
`a claim upon which relief can be granted, inasmuch as such claims, if granted, would constitute a
`
`denial by this court of this defendant's right to equal protection of the law, as preserved by the
`
`Fourteenth Amendment to the Constitution of the United States as well as the Constitution of the
`
`State of New York or any other applicable jurisdiction.
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`71.
`
`To the extent Plaintiffs’ Complaint and the causes of action pled therein fail to identify
`
`GE as the manufacturer in fact of any injury-causing products, or fail to identify any product
`
`manufactured by GE as the cause in fact of any injuries to Plaintiffs, said Complaint fails to state
`
`a claim upon which relief can be granted, inasmuch as such claims, if granted, would constitute an
`
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/29/2023
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`invalid burden by this court on interstate commerce, and a burden without resort to less
`
`burdensome alternatives, in violation of the Commerce Clause, Article I, Section 8, of the
`
`Constitution of the United States.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`72.
`
`Plaintiffs’ claims are barred as a result of the unconstitutionality of the applicable revival
`
`statute.
`
`
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`73.
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
`
`indispensable parties.
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`74.
`
`Insofar as Plaintiffs’ Complaint is premised upon any claims accruing on or after
`
`September 1, 1975, to recover damages for personal injuries, the amount of damages recoverable
`
`thereon must be diminished by reason of the culpable conduct attributable to the Plaintiffs and
`
`defendants other than this answering defendant, including contributory negligence and assumption
`
`of the risk, in the proportion to which the culpable conduct attributable to Plaintiffs and/or others
`
`bears to the culpable conduct which caused the damages.
`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`75.
`
`The damages allegedly sustained by the Plaintiffs were caused, in whole or in part, through
`
`the operation of nature.
`
`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
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`76.
`
`At all times relevant to this litigation, the agents, servants and/or employees of this
`
`answering defendant utilized proper methods in the conduct of its operations, in conformity with
`
`the available knowledge and research of the scientific and industrial communities.
`
`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`77.
`
`Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries alleged in
`
`Plaintiffs’ Complaint.
`
`
`
`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE,
`DEFENDANT GE STATES:
`
`78. While denying the allegations of Plaintiffs’ Complaint with respect to liability, to the extent
`
`that they may be able to prove negligence or improper conduct, the acts of this answering defendant
`
`wer