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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
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`TROY SHANE SMITH and ALLYSON JANE
`SMITH,
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`Plaintiffs,
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`- against -
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`84 LUMBER COMPANY, et al.,
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`Defendants.
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`VERIFIED ANSWER OF DEFENDANT FLOWSERVE US, INC., SOLELY AS
`SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVES,
`INC., NORDSTROM VALVES, INC., AND EDWARD VOGT VALVE COMPANY TO
`PLAINTIFFS’ VERIFIED COMPLAINT
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`Defendant Flowserve US, Inc., solely as successor to Rockwell Manufacturing Company,
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`Edward Valves, Inc., Nordstrom Valves, Inc., and Edward Vogt Valve Company (hereinafter
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`“Flowserve US” or “Defendant”), by its attorneys, McElroy, Deutsch, Mulvaney & Carpenter,
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`LLP, hereby responds to the Verified Complaint as follows:
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`THE PARTIES
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`1.
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`Defendant lacks sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in Paragraphs 1 and 2 of the Verified Complaint and,
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`accordingly, leaves plaintiffs to their proofs.
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`2.
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`Defendant denies the allegations of Paragraph 3 of the Verified Complaint to the
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`extent they are directed towards it.
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`3.
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`There are no allegations contained in Paragraph 4 of the Verified Complaint and,
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`accordingly, no response is made.
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`
`TROY SHANE SMITH and ALLYSON JANE
`SMITH,
`
`Plaintiffs,
`
`- against -
`
`84 LUMBER COMPANY, et al.,
`
`Defendants.
`
`VERIFIED ANSWER OF DEFENDANT FLOWSERVE US, INC., SOLELY AS
`SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, EDWARD VALVES,
`INC., NORDSTROM VALVES, INC., AND EDWARD VOGT VALVE COMPANY TO
`PLAINTIFFS’ VERIFIED COMPLAINT
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`Defendant Flowserve US, Inc., solely as successor to Rockwell Manufacturing Company,
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`Edward Valves, Inc., Nordstrom Valves, Inc., and Edward Vogt Valve Company (hereinafter
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`“Flowserve US” or “Defendant”), by its attorneys, McElroy, Deutsch, Mulvaney & Carpenter,
`
`LLP, hereby responds to the Verified Complaint as follows:
`
`THE PARTIES
`
`1.
`
`Defendant lacks sufficient knowledge or information to form a belief as to the
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`truth of the allegations contained in Paragraphs 1 and 2 of the Verified Complaint and,
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`accordingly, leaves plaintiffs to their proofs.
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`2.
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`Defendant denies the allegations of Paragraph 3 of the Verified Complaint to the
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`extent they are directed towards it.
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`3.
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`There are no allegations contained in Paragraph 4 of the Verified Complaint and,
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`accordingly, no response is made.
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`4.
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`Defendant denies the allegations of Paragraph 5 of the Verified Complaint to the
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`extent they are directed towards it and refers all questions of law to the Court. Answering
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`further, the allegation that Defendant has conducted and/or transacted business in New York is a
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`question of law to be adjudicated by this Court.
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`5.
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`The allegations of Paragraphs 6 through 28 of the Verified Complaint are not
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`directed towards this Defendant, and, accordingly, no response is made to them.
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`6.
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`Defendant denies the allegations of Paragraph 29 of the Verified Complaint to the
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`extent they are directed towards it and refers all questions of law to the Court. Answering
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`further, the allegation that Defendant has conducted and/or transacted business in New York is a
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`question of law to be adjudicated by this Court.
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`7.
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`The allegations of Paragraphs 30 through 61 of the Verified Complaint are not
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`directed towards this Defendant, and, accordingly, no response is made to them.
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`8.
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`Defendant denies the allegations of Paragraphs 62 and 63 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`Answering further, the allegation that Defendant has conducted and/or transacted business in
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`New York is a question of law to be adjudicated by this Court.
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`9.
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`Defendant denies the allegations of Paragraphs 64 through 69 of the Verified
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`Complaint to the extent they are directed towards it.
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`AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE
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`10.
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`In response to Paragraph 70 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 69 of the Verified Complaint as if set
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`forth at length herein.
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`11.
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`Defendant denies the allegations of Paragraphs 71 through 78 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN
`BREACH OF WARRANTY
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`12.
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`In response to Paragraph 79 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 78 of the Verified Complaint as if set
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`forth at length herein.
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`13.
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`Defendant denies the allegations of Paragraphs 80 through 83 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY
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`14.
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`In response to Paragraph 84 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 83 of the Verified Complaint as if set
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`forth at length herein.
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`15.
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`Defendant denies the allegations of Paragraphs 85 through 93 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS
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`16.
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`In response to Paragraph 94 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 93 of the Verified Complaint as if set
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`forth at length herein.
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`17.
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`Defendant denies the allegations of Paragraphs 95 through 112 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
`METROPOLITAN LIFE INSURANCE COMPANY
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`18.
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`In response to Paragraph 113 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 112 of the Verified Complaint as if
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`set forth at length herein.
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`19.
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`The allegations of Paragraphs 114 through 120 of the Verified Complaint are not
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`directed toward this Defendant and, accordingly, no response is made.
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`AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
`COLLECTIVE LIABILITY/CONCERT OF ACTION
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`20.
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`In response to Paragraph 121 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 120 of the Verified Complaint as if
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`set forth at length herein.
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`21.
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`Defendant denies the allegations of Paragraphs 122 through 136 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR A SEVENTH CAUSE OF ACTION
`AGAINST DEFENDANT CONTRACTORS
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`22.
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`In response to Paragraph 137 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 136 of the Verified Complaint as if
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`set forth at length herein.
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`23.
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`There are no allegations contained in Paragraph 138 of the Verified Complaint
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`and, accordingly, no response is made.
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`24.
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`Defendant denies the allegations of Paragraphs 139 through 150 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR AN EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY
`AGAINST CERTAIN DEFENDANTS
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`25.
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`In response to Paragraph 151 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 150 of the Verified Complaint as if
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`set forth at length herein.
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`26.
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`Defendant denies the allegations of Paragraphs 152 through 166 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR A NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY
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`27.
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`In response to Paragraph 167 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 166 of the Verified Complaint as if
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`set forth at length herein.
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`28.
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`Defendant denies the allegations of Paragraphs 168 through 179 of the Verified
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`Complaint to the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR A TENTH CAUSE OF ACTION PUNITIVE DAMAGES
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`29.
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`In response to Paragraph 180 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 179 of the Verified Complaint as if
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`set forth at length herein.
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`30.
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`Defendant denies the allegations of Paragraph 181 of the Verified Complaint to
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`the extent they are directed towards it and refers all questions of law to the Court.
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`AS AND FOR AN ELEVENTH CAUSE OF ACTION SPOUSAL
`LOSS OF CONSORTIUM
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`31.
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`In response to Paragraph 182 of the Verified Complaint, Defendant repeats and
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`reiterates each and every response to Paragraphs 1 through 181 of the Verified Complaint as if
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`set forth at length herein.
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`32.
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`Defendant lacks 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 Verified Complaint and leaves
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`plaintiffs to his proofs.
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`33.
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`Defendant denies the allegations of Paragraph 184 of the Verified Complaint to
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`the extent they are directed towards it and refers all questions of law to the Court.
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`AFFIRMATIVE DEFENSES
`FIRST SEPARATE DEFENSE
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`With respect to plaintiffs’ claim of a duty owed to him, this answering defendant denies
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`breaching any duty that it may have owed to the plaintiffs.
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`SECOND SEPARATE DEFENSE
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`The answering defendant is free of any and all negligence.
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`THIRD SEPARATE DEFENSE
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`Damages, if any, were the result of the sole negligence of the plaintiffs.
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`FOURTH SEPARATE DEFENSE
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`Damages, if any, which may have been sustained by the plaintiffs, and for which this
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`Defendant may become liable, were the result of the actions of third-parties over whom the
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`answering Defendant exercised no control and, therefore, plaintiffs are barred from any recovery
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`against the answering Defendant.
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`FIFTH SEPARATE DEFENSE
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`Any damages or injuries that may have been sustained by the plaintiffs were the result of
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`the sole negligence of the remaining defendants and/or third-party defendants.
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`SIXTH SEPARATE DEFENSE
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`The answering Defendant did not make, nor did it breach, any warranty to the plaintiffs.
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`SEVENTH SEPARATE DEFENSE
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`While the answering Defendant denies that plaintiffs used its products, Defendant states
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`that if it is shown that plaintiffs did use its products then the incident and injury alleged in the
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`Complaint were caused by the unauthorized, unintended and improper use of the product
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`complained of and as a result there can be no recovery.
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`EIGHTH SEPARATE DEFENSE
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`Plaintiffs failed to give the Defendant notice of alleged breach of warranty and damage as
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`required by law.
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`NINTH SEPARATE DEFENSE
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`Any liability that might otherwise be imposed upon the answering Defendant is subject to
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`reduction or barred by virtue of the doctrine of comparative negligence.
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`TENTH SEPARATE DEFENSE
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`The answering Defendant hereby invokes the provisions of Article 16 of the New York
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`Civil Practice Law and Rules (“CPLR”) and requests that the jury herein be charged accordingly.
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`ELEVENTH SEPARATE DEFENSE
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`The action of the plaintiffs are barred by the Statute of Limitations.
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`TWELFTH SEPARATE DEFENSE
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`The Complaint fails to state a claim upon which relief can be granted as against the
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`answering defendant.
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`THIRTEENTH SEPARATE DEFENSE
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`The doctrine of strict liability in tort does not apply to this answering defendant.
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`FOURTEENTH SEPARATE DEFENSE
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`Plaintiffs’ claims are barred, in whole or in part, from recovery for some or all of the
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`claims asserted against the answering Defendant because the fault or negligent acts or omissions
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`of plaintiff or plaintiffs’ employers caused or contributed to plaintiffs’ alleged injuries.
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`FIFTEENTH SEPARATE DEFENSE
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`The discovery rule does not apply and plaintiffs are barred from maintaining the within
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`suit.
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`SIXTEENTH SEPARATE DEFENSE
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`Any asbestos or asbestos-containing products that this Defendant may have supplied
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`were de minimis in light of the total sales by all sources and, therefore, plaintiffs fail to state a
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`claim against the answering Defendant.
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`EVENTEENTH SEPARATE DEFENSE
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`Any damages or injuries that may have been suffered by the plaintiffs were not
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`proximately caused by the conduct of the answering Defendant.
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`EIGHTEENTH SEPARATE DEFENSE
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`The answering Defendant never manufactured, sold or distributed any asbestos-
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`containing material that caused plaintiffs’ exposure to asbestos.
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`NINETEENTH SEPARATE DEFENSE
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`The answering defendant is an improper party in this litigation.
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`TWENTIETH SEPARATE DEFENSE
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`All claims brought under New York Law, L.1986 c. 682 Section 4 (enacted July 31,
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`1986) are time-barred in that said statute is in violation of the Constitution of the United States
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`and the Constitution of the State of New York.
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`TWENTY-FIRST SEPARATE DEFENSE
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`The answering Defendant had no knowledge or reason to know of any alleged risks
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`associated with asbestos and/or asbestos-containing products at any time during the periods
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`complained of.
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`TWENTY-SECOND SEPARATE DEFENSE
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`Plaintiffs’ cause of action for exemplary or punitive damages is barred because such
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`damages are not recoverable or warranted in this action.
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`TWENTY-THIRD SEPARATE DEFENSE
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`Plaintiffs’ demand for punitive damages is barred by the due process clauses of the
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`Fourteenth Amendment of the United States Constitution and the New York State Constitution.
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`TWENTY-FOURTH SEPARATE DEFENSE
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`Plaintiffs’ demand for punitive damages is barred by the proscription of the Eighth
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`Amendment to the United States Constitution, as applied to the states through the Fourteenth
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`Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the
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`imposition of excessive fines.
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`TWENTY-FIFTH SEPARATE DEFENSE
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`If plaintiffs sustained injuries in the manner alleged, all of which has been denied by this
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`Defendant, the liability of this Defendant, if any, shall be limited in accordance with Article 16
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`of the CPLR.
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`TWENTY-SIXTH SEPARATE DEFENSE
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`At all times relevant to this litigation, the agents, servants and/or employees of this
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`Defendant utilized proper methods in the conduct of its operations, in conformity with the
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`available knowledge and research of the scientific and industrial communities.
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`TWENTY-SEVENTH SEPARATE DEFENSE
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`Plaintiffs contributed to the alleged illness, either in whole or in part, by exposure to or
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`the use of tobacco products and/or other substances, products, medications or drugs.
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`TWENTY-EIGHTH SEPARATE DEFENSE
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`To the extent either of the plaintiffs herein bring suit in a representative capacity, such
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`plaintiffs have failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to
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`New York Estate Powers and Trusts Law § 5-41.
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`TWENTY-NINTH SEPARATE DEFENSE
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`The purported service upon the answering Defendant in this action was not proper, and as
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`a result, this Court lacks personal jurisdiction over the answering Defendant.
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`THIRTIETH SEPARATE DEFENSE
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`Upon information and belief, any alleged injuries were caused by a pre-existing or
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`unrelated medical condition, disease or illness of the plaintiffs.
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`THIRTY-FIRST SEPARATE DEFENSE
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`Plaintiffs’ claims are barred by the doctrines of laches, waiver and/or estoppel.
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`THIRTY-SECOND SEPARATE DEFENSE
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`Plaintiffs’ claims are barred because any product allegedly associated with this answering
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`Defendant was substantially altered after it left the manufacturer’s possession and control.
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`THIRTY-THIRD SEPARATE DEFENSE
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`Plaintiffs’ claims are barred, in whole or in part, to the extent that plaintiffs failed to
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`mitigate damages.
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`THIRTY-FOURTH SEPARATE DEFENSE
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`In the event that plaintiffs recover a verdict or judgment against the answering Defendant,
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`then said verdict or judgment must be reduced by those amounts that have been paid or
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`indemnified or will, with reasonable certainty, be paid or indemnified to the plaintiffs, in whole
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`or in part, for any past or future claimed economic loss, from any collateral source including
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`insurance, social security, workers compensation or employees benefit programs.
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`THIRTY-FIFTH SEPARATE DEFENSE
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`The answering Defendant hereby invokes the provisions of the New York CPLR §§ 4545
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`and requests that the damage award, if any, in favor of the plaintiffs be reduced accordingly.
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`THIRTY-SIXTH SEPARATE DEFENSE
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`Plaintiffs have improperly joined claims of multiple parties in violation of Articles 6 and
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`10 of the New York CPLR and all improperly joined or misjoined parties and/or claims must be
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`severed and tried separately.
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`THIRTY-SEVENTH SEPARATE DEFENSE
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`The answering defendant hereby invokes the provisions of Article 50-B of the New York
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`CPLR.
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`THIRTY-EIGHTH SEPARATE DEFENSE
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`In the event of a finding of any liability in favor of plaintiffs, or settlement, or judgment
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`against any Defendant, then the answering Defendant should be held liable, if at all, only for the
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`proportion of damages sustained by plaintiffs, if any, as is determined by the jury to be the result
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`of the allocable percentage of fault or negligence on the part of the answering Defendant.
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`THIRTY-NINTH SEPARATE DEFENSE
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`To the extent that plaintiffs allege claims based upon oral warranties or representations,
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`plaintiff’s claims are barred by the Statute of Frauds.
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`FORTIETH SEPARATE DEFENSE
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`To the extent that plaintiffs allege claims based upon oral warranties or representations,
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`plaintiffs’ claims are barred by the Statute of Frauds.
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`FORTY-FIRST SEPARATE DEFENSE
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`The answering Defendant cannot be liable to plaintiffs as alleged in the Complaint by
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`operation of the doctrines of superseding and/or intervening cause.
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`FORTY-SECOND SEPARATE DEFENSE
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`No acts or omissions of this defendant proximately caused any damages.
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`FORTY-THIRD SEPARATE DEFENSE
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`Any asbestos-containing product of the answering Defendant that may have been present
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`at plaintiffs’ job locations were placed in any such buildings upon specification, approval or at
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`the instruction of governmental or legislative agencies or bodies.
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`FORTY-FOURTH SEPARATE DEFENSE
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`All implied warranties, including the warranties of merchantability and fitness for a
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`particular purpose, were excluded at the time of the sale, if any, of the answering Defendant’s
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`products.
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`FORTY-FIFTH SEPARATE DEFENSE
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`No implied warranties, including the warranties of merchantability and fitness for a
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`particular purpose, became part of the basis of the bargain in the sale, if any, of the answering
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`Defendant’s products.
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`FORTY-SIXTH SEPARATE DEFENSE
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`The answering Defendant is not liable to plaintiffs for any damages alleged in the
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`Complaint because such damages are excluded and not recoverable under express warranty.
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`FORTY-SEVENTH SEPARATE DEFENSE
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`Plaintiffs did not directly or indirectly purchase any asbestos-containing products or
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`materials from the answering Defendant and plaintiffs did not either receive or rely upon any
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`representation or warranty allegedly made by the answering Defendant.
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`FORTY-EIGHTH SEPARATE DEFENSE
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`Finished asbestos-containing products are not unreasonably dangerous as a matter of law.
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`FORTY-NINTH SEPARATE DEFENSE
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`None of the alleged injury or damage was foreseeable at the time of the acts or omissions
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`complained of in plaintiffs’ Complaint.
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`FIFTIETH SEPARATE DEFENSE
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`If a warning was required, the answering Defendant was under no duty to warn
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`purchasers, those who performed work, or those under their control, where another person or
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`entity was in a better position to warn; their failure to warn was a superseding proximate cause of
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`injury.
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`FIFTY-FIRST SEPARATE DEFENSE
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`Plaintiffs were warned of risk of exposure to use of asbestos-containing materials.
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`FIFTY-SECOND SEPARATE DEFENSE
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`Upon information and belief, some or all of the causes of action may not be maintained
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`because of collateral estoppel.
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`FIFTY-THIRD SEPARATE DEFENSE
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`Upon information and belief, some or all of the causes of action may not be maintained because
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`of res judicata.
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`FIFTY-FOURTH SEPARATE DEFENSE
`
`Pursuant to General Obligations Law Section 15-108, this defendant is entitled to set-off.
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`FIFTY-FIFTH SEPARATE DEFENSE
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`To the extent the Complaint asserts causes of action for statutory liability based upon
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`express or implied warranties and/or representations, the allegations as against the answering
`
`Defendant are legally insufficient to establish liability by reason of the failure to allege privity of
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`contract between the plaintiffs and this answering Defendant.
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`FIFTY-SIXTH SEPARATE DEFENSE
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`Plaintiffs are barred from any recovery against the answering defendant by the doctrine
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`of assumption of the risk.
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`FIFTY-SEVENTH SEPARATE DEFENSE
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`Plaintiffs’ employer(s) were sophisticated purchasers and/or users of the products
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`referred to in plaintiffs’ Complaint upon whom devolved all responsibility for such use.
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`FIFTY-EIGHTH SEPARATE DEFENSE
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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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`FIFTY-NINTH SEPARATE DEFENSE
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`No enterprise liability lies against the answering defendant.
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`NYSCEF DOC. NO. 29
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/05/2024
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`SIXTIETH SEPARATE DEFENSE
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`The answering Defendant did not act with recklessness, malice or wantonness, and
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`accordingly, plaintiffs may not recover herein any exemplary or punitive damages against the
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`answering Defendant.
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`SIXTY-FIRST SEPARATE DEFENSE
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`Insofar as plaintiffs allege that this answering Defendant engaged in any willful and
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`wanton misconduct, or that this Defendant knowingly and/or intentionally sold a product or
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`products that it knew to be unreasonably dangerous, all of which this Defendant denies, any such
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`cause of action accrued more than one year prior to the commencement of this lawsuit, thus is
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`time-barred.
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`SIXTY-SECOND SEPARATE DEFENSE
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`At all times material hereto, the state of the medical and industrial art was such that there
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`was no generally accepted or recognized knowledge of any avoidable, unsafe, inherently
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`dangerous, or hazardous character or nature of products containing asbestos when used in the
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`manner and purpose described by the plaintiffs and, therefore, there was no duty for the
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`answering Defendant to know of any such character or nature or to warn plaintiffs or others
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`similarly situated.
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`SIXTY-THIRD SEPARATE DEFENSE
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`To the extent that the answering Defendant conformed to the scientific knowledge and
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`research data available through the industry and scientific community, this Defendant has
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`fulfilled its obligations, if any, herein and plaintiffs’ claims should be barred, in whole or in part.
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`FILED: ERIE COUNTY CLERK 01/05/2024 11:47 AM
`NYSCEF DOC. NO. 29
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/05/2024
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`SIXTY-FOURTH SEPARATE DEFENSE
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`Plaintiffs have failed to state a cause of action upon which relief may be granted,
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`inasmuch as plaintiffs are unable to identify the manufacturer(s) of the substance allegedly
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`causing injury, and relief granted would deprive this Defendant of its right to substantive and
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`procedural due process of law and equal protection under the law pursuant to the Fourteenth
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`Amendment of the Constitution of the United States.
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`SIXTY-FIFTH SEPARATE DEFENSE
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`To the extent plaintiffs seek damages attributable to products purportedly manufactured
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`by the answering Defendant, plaintiffs are not entitled to damages claimed because plaintiffs,
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`their co-workers and employees misused, mistreated and misapplied the product(s) designated as
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`asbestos materials as alleged in the Complaint and such misuse, abuse, mistreatment and/or
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`misapplication attributed to the plaintiffs and/or their co-workers and/or employees proximately
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`caused the alleged injuries or damages.
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`SIXTY-SIXTH SEPARATE DEFENSE
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`The causes of action asserted herein by the plaintiffs, who are unable to identify the
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`manufacturer of the alleged injury-causing product(s), fail to state a cause of action upon which
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`relief can be granted in that plaintiffs have asserted claims for relief which, if granted, would
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`constitute a taking of private property for public use, without just compensation. Such a taking
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`would contravene this answering Defendant’s constitutional rights as preserved for it by the
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`Fourteenth Amendment to the Constitution of the United States.
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`SIXTY-SEVENTH SEPARATE DEFENSE
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`If it should be proved at the time of trial that any of the answering Defendant’s product(s)
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`were furnished to plaintiffs’ employer(s) and/or to the United States Government, and that
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`FILED: ERIE COUNTY CLERK 01/05/2024 11:47 AM
`NYSCEF DOC. NO. 29
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/05/2024
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`plaintiffs came into contact with said product(s), which this Defendant specifically denies, then
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`any product(s) processed, manufactured, produced, constructed, designed, tested, fashioned,
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`packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in the stream
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`of commerce by this Defendant that was or may have been furnished to plaintiffs’ employer(s)
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`and/or to the United States Government, and with which plaintiffs alleges they came, or may
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`have come into contact, was processed, manufactured, produced, constructed, designed, tested,
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`fashioned, packaged, sold, distributed, delivered, supplied, advertised and/or otherwise placed in
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`the stream of commerce in strict conformity to the conditions specified, or to specifications
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`furnished by the plaintiffs’ employer(s) and/or the United States Government.
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`SIXTY-EIGHTH SEPARATE DEFENSE
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`To the extent that the causes of pled by the plaintiffs herein fail to accord with the
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`Uniform Commercial Code, including, but not limited to, Section 2-725 thereof, plaintiffs’
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`Complaint is barred.
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`SIXTY-NINTH SEPARATE DEFENSE
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`To the extent that plaintiffs rely on Section 4 of the New York Laws 1986, c.682 as
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`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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`SEVENTIETH SEPARATE DEFENSE
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`To the extent that plaintiffs seek punitive damages against the answering Defendant, and
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`rely on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving and maintaining
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`the action, such damages are improper and are not authorized by law since this statute does not
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`revive any claims for punitive damages, leaving such claims time-barred in their entirety.
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`FILED: ERIE COUNTY CLERK 01/05/2024 11:47 AM
`NYSCEF DOC. NO. 29
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/05/2024
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`SEVENTY-FIRST SEPARATE DEFENSE
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`These actions and the causes pled by the plaintiffs herein are barred by virtue of Article
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`1, Section 10 of the United States Constitution.
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`SEVENTY-SECOND SEPARATE DEFENSE
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`Pursuant to the Case Management Order Section XVII, punitive damages are not
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`available in this action.
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`SEVENTY-THIRD SEPARATE DEFENSE
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`Plaintiffs’ demand for punitive damages is barred by the “ex post facto” clause of the
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`United States Constitution.
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`SEVENTY-FOURTH SEPARATE DEFENSE
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`With respect to plaintiffs’ claim of a duty owed to them, this answering Defendant denies
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`breaching any duty that it may have owed to the plaintiffs.
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`SEVENTY-FIFTH SEPARATE DEFENSE
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`The answering defendant reserves the right to move for a severance of the various
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`allegations in the plaintiffs’ Complaint.
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`SEVENTY-SIXTH SEPARATE DEFENSE
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`The answering defendant reserves the right to amend its answer and to assert additional
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`crossclaims and/or otherwise counterclaims as to any party named herein, who may have, is, or
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`will be declared bankrupt or otherwise files a petition under the Bankruptcy Code, pursuant to
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`Article 16 of the N.Y.Civ.Prac.L. & R. and to decision of Justice Helen E. Freedman, former
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`presiding judge for the New York City Asbestos Litigation (October 28, 2002), which was
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`upheld by the First Department in In re: New York City Asbestos Litigation, Tancredi v. A.C. &
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`S., Inc., 775 N.Y.S.2d 520 (1st Dep’t. 2004).
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`FILED: ERIE COUNTY CLERK 01/05/2024 11:47 AM
`NYSCEF DOC. NO. 29
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/05/2024
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`SEVENTY-SEVENTH AFFIRMATIVE DEFENSE
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`If, at the time of trial, it is shown that plaintiffs used products manufactured, supplied,
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`distributed, or sold by the answering Defendant, said products or a portion thereof were supplied
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`to, by, or on behalf of the United States Government, or if those products were supplied or sold
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`by the United States Government, the answering Defendant raises any immunity from suit or
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`from liability as conferred by the United States Government, and specifically pleads the
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`government contractor defense.
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`SEVENTY-EIGHTH AFFIRMATIVE DEFENSE
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`The answering Defendant incorporates and adopts by reference any and all other and/or
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`additional defenses, raised or to be raised by any other party, and expressly reserves the right to
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`amend and supplement its defenses herein to assert additional defenses and to make further
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`admission upon completion of further investigation and discovery.
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`SEVENTY-NINTH AFFIRMATIVE DEFENSE
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`Plaintiff-spouse’s loss of consortium claim is barred as a matter of law because the alleged
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`asbestos exposure of the plaintiff predates the date of the plaintiff’s and plaintiff-spouse’s
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`marriage.
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`EIGHTIETH AFFIRMATIVE DEFENSE
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`Plaintiffs were aware of the facts, circumstances and conditions existing at the time and
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`place set forth in the Complaint and voluntarily assumed all risk arising therefrom.
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`EIGHTY-FIRST AFFIRMATIVE DEFENSE
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`The answering Defendant intends to rely upon such other defenses as may be available or
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`apparent during discovery proceedings in this case and hereby reserves the right to amend the
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`Answer to plead said defenses.
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`FILED: ERIE COUNTY CLERK 01/05/2024 11:47 AM
`NYSCEF DOC. NO. 29
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/05/2024
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`EIGHTY-SECOND AFFIRMATIVE DEFENSE
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`The answering defendant hereby expressly denies that it is a successor to Henry Vogt
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`Machine Company.
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`EIGHTY-THIRD AFFIRMATIVE DEFENSE
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`This court lacks jurisdiction over the subject matter of this action.
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`EIGHTY-FOURTH AFFIRMATIVE DEFENSE
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`This court lacks personal jurisdiction of this Defendant.
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`EIGHTY-FIFTH AFFIRMATIVE DEFENSE
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`Plaintiffs’ demand for punitive damages is barred by the “double jeopardy” clause of the
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`Fifth Amendment to the United States Constitution, as applied to the states through the
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`Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
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`EIGHTY-SIXTH AFFIRMATIVE DEFENSE
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`The answering Defendant has no legal duty of care to plaintiffs.
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`EIGHTY-SEVENTH AFFIRMATIVE DEFENSE
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`Plaintiffs’ claims are barred because the Complaint is defective as a matter of law.
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`EIGHTY- EIGHTH AFFIRMATIVE DEFENSE
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`In the event that plaintiff was employed by this answering Defendant, such plaintiff’s
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`sole remedy is under the Workers’ Compensation Law and said plaintiff cannot recover from this
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`Defendant in this action.
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`WHEREFORE, defendant Flowserve US, Inc., solely as successor to Rockwell
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`Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc., and Edward Vogt Valve
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`Company, requests judgment in its favor dismissing the Complaint and for such other and further
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`relief as the Court may deem just and proper.
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`FILED: ERIE COUNTY CLERK 01/05/2024 11:47 AM
`NYSCEF DOC. NO. 29
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`INDEX NO. 814633/2023
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