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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`-----------------------------------------------------------------------------------x
`
`TROY SHAYNE SMITH and ALLYSON JANE
`SMITH,
`
` Plaintiff,
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`
` -against-
`
`
`84 LUMBER COMPANY, et al.
`
` Defendants.
`-------------------------------------------------------------------x
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`
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`Index No.:814633/2023
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`DEFENDANT REDCO
`CORPORATION’S
`VERIFIED ANSWER,
`SEPARATE DEFENSES, AND
`CROSS-CLAIMS TO
`PLAINTIFFS’ VERIFIED
`COMPLAINT
`
`
`
`Defendant Redco Corp., f/k/a as Crane Co. (hereinafter “Redco Corp.”), through its
`
`undersigned counsel, K&L Gates LLP, for its Answer to Plaintiffs’ Verified Complaint dated
`
`November 14, 2023 states as follows:
`
`THE PARTIES
`
`Defendant Redco Corp. lacks knowledge or information sufficient to form a belief as
`
`1.
`
`to the truth of the allegations contained in paragraphs 1, 2 and 3 of the Verified Complaint.
`
`2.
`
`Defendant Redco Corp. denies the allegations contained in paragraphs 4 and 5 of the
`
`Verified Complaint.
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`3.
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`Defendant Redco Corp. lacks knowledge or information sufficient to form a belief as
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`to the truth of the allegations contained in paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
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`20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46,
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`47, 48, 49 and 50 of the Verified Complaint.
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`4.
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`Defendant Redco Corp. denies the allegations contained in paragraph 51 of the
`
`Verified Complaint.
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`5.
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`Defendant Redco Corp. lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations contained in paragraphs 52, 53, 54, 55, 56, 57, 58, 59, 60 and 61 of the
`
`Verified Complaint.
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`6.
`
`Defendant Redco Corp. denies the allegations contained in paragraphs 62, 63, 64,
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`65, 66, 67, 68 and 69 of the Verified Complaint.
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`
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`ANSWERING THE FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE
`
`7.
`
`In response to paragraph 70 of the Verified Complaint, Defendant Redco Corp.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 69 of the Verified
`
`Complaint as if fully set forth herein.
`
`8.
`
`Defendant Redco Corp. denies each and every allegation contained in paragraphs 71,
`
`72, 73, 74, 75(a) – (m), 76, 77 and 78 of the Verified Complaint.
`
`ANSWERING THE SECOND CAUSE OF ACTION SOUNDING IN BREACH OF
`WARRANTY
`
`9.
`
`In response to paragraph 79 of the Verified Complaint, Defendant Redco Corp.
`
`
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 78 of the Verified
`
`Complaint as if fully set forth herein.
`
`10.
`
`Defendant Redco Corp. denies each and every allegation contained in paragraphs 80,
`
`81, 82 and 83 of the Verified Complaint.
`
`ANSWERING THE THIRD CAUSE OF ACTION AGAINST
`SOUNDING IN STRICT LIABILITY
`
`In response to paragraph 84 of the Verified Complaint, Defendant Redco Corp.
`
`11.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 83 of the Verified
`
`Complaint as if fully set forth herein.
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`INDEX NO. 814633/2023
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`12.
`
`Defendant Redco Corp. denies each and every allegation contained in paragraphs 85,
`
`86, 87, 88, 89, 90, 91, 92 and 93 of the Verified Complaint.
`
`ANSWERING THE FOURTH CAUSE OF ACTION
`LABOR LAW VIOLATIONS
`
`In response to paragraph 94 of the Verified Complaint, Defendant Redco Corp.
`
`13.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 93 of the Verified
`
`Complaint as if fully set forth herein.
`
`14.
`
`Defendant Redco Corp. denies each and every allegation contained in paragraphs
`
`95, 96, 97, 98, 99, 100, 101, 102, 103, 104(a) - (f), 105, 106, 107, 108, 109, 110, 111 and 112 of the
`
`Verified Complaint.
`
`ANSWERING THE FIFTH CAUSE OF ACTION
`METROPOLITAN LIFE INSURANCE COMPANY
`
`In response to paragraph 113 of the Verified Complaint, Defendant Redco Corp.
`
`15.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 112 of the Verified
`
`Complaint as if fully set forth herein.
`
`16.
`
`Defendant Redco Corp. lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations contained in paragraphs 114, 115, 116, 117, 118, 119 and 120 of the
`
`Verified Complaint.
`
`ANSWERING THE SIXTH CAUSE OF ACTION
`COLLECTIVE LIABILITY/ CONCERT OF ACTION
`
`In response to paragraph 121 of the Complaint, Defendant Redco Corp. repeats and
`
`17.
`
`reiterates the answers contained in response to paragraphs 1 through 120 of the Complaint as if
`
`fully set forth herein.
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`18.
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`Defendant Redco Corp. denies each and every allegation contained in paragraphs
`
`122, 123, 124, 125, 126, 127, 128, 129(i) – (iii), 130, 131, 132, 133, 134, 135 and 136 of the
`
`Verified Complaint.
`
`ANSWERING THE SEVENTH CAUSE OF ACTION
`AGAINST DEFENDANT CONTRACTORS
`
`In response to paragraph 137 of the Verified Complaint, Defendant Redco Corp.
`
`19.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 136 of the Verified
`
`Complaint as if fully set forth herein.
`
`20.
`
`Insofar as the allegations contained in paragraphs 138, 139, 140, 141, 142, 143,
`
`144, 145, 146, 147, 148, 149 and 150 of the Verified Complaint do not pertain to defendant
`
`Redco Corp., no response is required nor made thereto. Inasmuch as these allegations may be
`
`construed as pertaining to Redco Corp., Redco Corp. denies each and every allegation contained
`
`in paragraphs 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149 and 150 of the Verified
`
`Complaint.
`
`ANSWERING THE EIGHTH CAUSE OF ACTION
`FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
`
`In response to paragraph 151 of the Verified Complaint, Defendant Redco Corp.
`
`21.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 150 of the Verified
`
`Complaint as if fully set forth herein.
`
`22.
`
`Insofar as the allegations contained in paragraphs 152, 153, 154, 155, 156, 157,
`
`158, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165 and 166 of the Verified
`
`Complaint do not pertain to defendant Redco Corp., no response is required nor made thereto.
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`Inasmuch as these allegations may be construed as pertaining to Redco Corp., Redco Corp. denies
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`each and every allegation contained in paragraphs 152, 153, 154, 155, 156, 157, 158, 153, 154,
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`155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165 and 166 of the Verified Complaint.
`
`ANSWERING THE NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY
`
`In response to paragraph 167 of the Verified Complaint, Defendant Redco Corp.
`
`23.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 166 of the Verified
`
`Complaint as if fully set forth herein.
`
`24.
`
`Defendant Redco Corp. denies each and every allegation contained in paragraphs
`
`168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178 and 179 of the Verified Complaint.
`
`ANSWERING THE TENTH CAUSE OF ACTION PUNITIVE DAMAGES
`
`In response to paragraph 180 of the Verified Complaint, Defendant Redco Corp.
`
`25.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 179 of the Verified
`
`Complaint as if fully set forth herein.
`
`26.
`
`Defendant Redco Corp. denies each and every allegation contained in paragraph 181
`
`of the Verified Complaint.
`
`ANSWERING THE ELEVENTH CAUSE OF ACTION LOSS OF CONSORTIUM
`
`In response to paragraph 182 of the Verified Complaint, Defendant Redco Corp.
`
`27.
`
`repeats and reiterates the answers contained in response to paragraphs 1 through 181 of the Verified
`
`Complaint as if fully set forth herein.
`
`28.
`
`Defendant Redco Corp. lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations contained in paragraph 183 of the Complaint.
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`29.
`
`Defendant Redco Corp. denies the allegations contained in paragraph 184 of the
`
`Complaint.
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`FILED: ERIE COUNTY CLERK 01/12/2024 04:07 PM
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/12/2024
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`This Court did not acquire personal jurisdiction over Redco Corp. due to insufficiency of
`
`service of process.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`This Court does not have personal, specific or general jurisdiction over Redco Corp.
`
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`In whole or in part, the Complaint fails to state a claim upon which relief can be granted.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`The Complaint fails to contain allegations about, concerning, or directed at Redco Corp.
`
`and therefore fails to state a claim against Redco Corp.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`There is no justiciable issue or controversy.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs’ claims are barred because of their failure to join necessary and indispensable
`
`parties.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`To the extent that any Plaintiff herein seeks to maintain a claim for relief on behalf of any
`
`decedent, such Plaintiff lacks authority, capacity and/or standing to maintain such claim for relief
`
`against Redco Corp., including, but not limited to, the failure to allege sufficient facts to
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`demonstrate legal capacity to sue pursuant to New York Estates Powers and Trusts Law §5-1.1
`
`to 5-4.6.
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Venue is improper in this county.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The Claims asserted in the Complaint are barred by the doctrines of laches and estoppel
`
`and waiver in that Redco Corp. has been substantially prejudiced by delay in filing of this action.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`The injuries and damages alleged in the Complaint were caused, in whole or in part, by
`
`the negligence or other culpable conduct of the Plaintiffs, defendants, and/or non-parties, which
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`conduct constituted a supervening cause of the alleged injuries and damages.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`Insofar as the Complaint and each cause of action considered separately allege a cause of
`
`action occurring 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 TWELFTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`Insofar as the Complaint is premised upon claims accruing on or after the adoption of the
`
`comparative fault standard to recover damages for personal injuries, the amount of damages
`
`recoverable thereon must be diminished by reason of the culpable conduct attributable to any
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`Plaintiff or and defendant other than Redco Corp., including contributory negligence and
`
`assumption of the risk, in the proportion to which culpable conduct attributable to any other party
`
`bears to the culpable conduct which caused the damages.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`The injuries and damages alleged by the Plaintiffs were caused, in whole or in part, by
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`the negligence or other culpable conduct of one or more persons or instrumentalities over which
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`Redco Corp. had no control, is not responsible, and with whom it had no legal relationship.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any and all risks, hazards, defects, or dangers, alleged by Plaintiffs were either (i) open,
`
`obvious and apparent, natural and inherent, and known or should have been known to the named
`
`plaintiffs, or (ii) not within the knowledge of Redco Corp., and, therefore, all such risks, hazards,
`
`defects and dangers were assumed.
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The lawsuit was not commenced by the Plaintiffs within the time prescribed by law and
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`the Plaintiffs, therefore, are barred from recovery pursuant to applicable statutes of limitations.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31,
`
`1986) are time-barred in that said statute is in violation of the Constitution of the United States
`
`and the Constitution of the State of New York.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs’ causes of action against Redco Corp. are barred or limited by and pursuant to
`
`§§ 10, 11, and 29 of the Workers’ Compensation Law of the State of New York.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`To the extent that any alleged injury occurred in the context of an employer - employee
`
`relationship, this action is barred by virtue of the provisions of the Workers Compensation Law,
`
`including, but not limited to, the Omnibus Workers’ Compensation Reform Act, which amended
`
`§ 11 of the Workers Compensation Law and the lack of a “grave” injury on the part of the named
`
`plaintiffs.
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any alleged acts or omissions of Redco Corp. were not a proximate cause of any injuries
`
`or damages as alleged by Plaintiffs.
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any asbestos-containing product associated with a Redco Corp. product that may have
`
`been present at plaintiffs’ job locations were placed in any such location upon specification,
`
`approval, or at the instruction of governmental or legislative agencies or bodies.
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`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Plaintiffs’ claims are barred to the extent Redco Corp., in manufacturing, distributing,
`
`and selling its products, followed the plans, specifications, and contracts set by a governmental
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`body and did not deviate from said plans, specifications and contracts.
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any injuries or damages claimed by Plaintiffs that allegedly arose from exposure to
`
`asbestos-containing products associated with equipment allegedly manufactured by Redco Corp.
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`(the "Equipment"), were caused, in whole or in part, by the improper use and operation of the
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`Equipment, rather than any defect in the design, manufacture, production, assemblage,
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`installation, testing, labeling, marketing, distribution, sale or inspection of the Equipment by
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`Redco Corp.
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`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any injuries or damages claimed by Plaintiffs that allegedly arose from the Equipment
`
`were caused by the alteration, misuse and/or improper maintenance of the Equipment by one or
`
`more persons or instrumentalities other than Redco Corp., rather than any defect in the design,
`
`manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale
`
`or inspection of the Equipment by Redco Corp.
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`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The Equipment was not defective or dangerous at any time when defendant Redco Corp.
`
`had possession or control of it.
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`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Redco Corp. did not give, make, or otherwise extend warranties, whether express or
`
`implied, upon which Plaintiffs can rely.
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`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`To the extent that Plaintiffs’ claims have been revived by amendments to New York’s
`
`Civil Practice Law and Rules, such claims can be no greater than what they were at the time
`
`when they originally accrued. Therefore, Plaintiffs cannot rely on the doctrine of strict liability
`
`in tort, and plaintiffs’ warranty claims are barred for lack of privity.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any claims by Plaintiffs for breach of warranty are barred because there was a failure to
`
`comply with the terms and conditions of any claimed warranty, including, but not limited to
`
`failure to give proper notice, lack of duty, and compliance with any applicable provisions of the
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`Uniform Commercial Code.
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`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any alleged oral warranties alleged by Plaintiffs are unavailable as violative of the
`
`provisions of the applicable Statute of Frauds.
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`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any injuries or damages claimed by Plaintiffs that allegedly arose from the use of a
`
`product alleged to contain asbestos, which is specifically denied, Plaintiffs, Plaintiffs’ decedents,
`
`other defendants or other parties not under the control of Redco Corp. misused, abused,
`
`misapplied and otherwise mishandled the product alleged to contain asbestos. Therefore, the
`
`amount of damages that may be recoverable must be diminished by the proportion that said
`
`misuse, abuse, misapplication, and mishandling bears to the conduct which caused the alleged
`
`damage or injury.
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`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The allegations set forth in the Complaint do not state a claim against Redco Corp. to the
`
`extent that Plaintiffs rely upon the doctrines of market share, alternate liability, or any other
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`theory providing for liability without proof of causation.
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`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`In the event it should be proven at the time of trial that all the defendants are subject to
`
`market share liability, then Redco Corp.'s share of such liability would be of such a de minimis
`
`amount as to make its contribution for damages negligible, and Redco Corp. would be entitled to
`
`contribution, either in whole or in part, from co-defendants.
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`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The asbestos-containing products alleged in the Complaint are products within the
`
`meaning and scope of the Restatement of Torts Section 402A and as such the Complaint fails to
`
`state a cause of action in strict liability.
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Redco Corp. owed no duty to Plaintiffs or performed each and every duty, if any, owing
`
`to Plaintiffs.
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`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Redco Corp. had no knowledge or reason to know of any alleged risks associated with
`
`asbestos and/or asbestos-containing products at any time during the periods complained of.
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`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The Plaintiffs did not directly or indirectly purchase any asbestos-containing products or
`
`materials from Redco Corp.
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`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Redco Corp. specifically denies that the Plaintiffs used or were exposed to any asbestos-
`
`containing product manufactured, supplied, or specified for use by Redco Corp.; therefore,
`
`Redco Corp. is not liable for any injuries or damage claimed by Plaintiffs.
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`If Redco Corp. incorporated into its products any asbestos-containing materials supplied
`
`by others, any asbestos fibers within such materials were fully encapsulated, were not friable,
`
`and would not and did not cause the injuries or damages alleged.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any injuries or damages claimed by Plaintiffs that allegedly arose from an exposure to
`
`asbestos that was in any way associated with a product manufactured by Redco Corp., which is
`
`specifically denied, said exposure was de minimis and not a substantial contributing factor to any
`
`asbestos-related disease as alleged in the Complaint and not actionable at law or equity.
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`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any exposure to asbestos fibers that may, in any way, be associated with a product
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`manufactured by Redco Corp., which is specifically denied, is so minimal as to be insufficient to
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`establish to a reasonable degree of probability that such exposures are capable of causing injury
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`or damages and must be considered speculative as a matter of law.
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`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`If Redco Corp. was on notice of any hazard or defect for which the Plaintiffs seek relief,
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`which is specifically denied, the named Plaintiffs also had such notice and is thereby barred from
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`recovery.
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`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The claims for damages have not accrued, are purely speculative, uncertain and
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`contingent.
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`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`None of the alleged injuries or damages was foreseeable during any time periods at issue
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`as alleged in the Complaint.
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`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The alleged injuries suffered by the Plaintiffs are due to an idiosyncratic reaction, and as
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`such, Redco Corp. is not responsible for such injuries.
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`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Redco Corp. was not under any duty to warn purchasers, those who performed work, or
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`those under their control, who were in a better position to warn; if warning was required, their
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`failure to do so was a superseding proximate cause of injury.
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`FILED: ERIE COUNTY CLERK 01/12/2024 04:07 PM
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/12/2024
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`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`The named Plaintiffs were warned of risks associated with exposure from use of
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`asbestos-containing materials.
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`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Plaintiffs’ claims are barred as a matter of public policy, because social utility and benefit
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`of asbestos-containing products outweighed the risk.
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`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Plaintiffs failed to take reasonable steps to mitigate any alleged injuries or damages;
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`Redco Corp. bears no liability for damages or injuries that would otherwise have been avoided or
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`prevented.
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`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The allegations set forth in the Complaint do not state a claim against Redco Corp. that
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`will authorize or entitle Plaintiffs to recover punitive or exemplary damages.
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`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`To the extent that Plaintiffs seek punitive damages against Redco Corp., such damages
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`are improper, unwarranted, not authorized by law, and are unconstitutional in the context of this
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`litigation. Subjecting Redco Corp. to multiple trials and multiple imposition of punitive damages
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`for the same alleged course of conduct is a violation of both substantive and procedural due
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`process under the United States Constitution and the Constitution of the State of New York. The
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`standard for the imposition of an award for punitive damages is constitutionally void for
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`vagueness. Also, the imposition of an award for punitive damages in the context of this litigation
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`results in an unconstitutional denial of due process.
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`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`To the extent that Plaintiffs seek punitive damages against Redco Corp., the award of
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`such damages in this litigation are barred by the proscription of the Eighth Amendment to the
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`United States Constitution, as applied to the states through the Fourteenth Amendment, and
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`Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessive
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`fines.
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`AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The injuries allegedly suffered by the Plaintiffs, if any and which are specifically denied,
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`were the result of culpable conduct or fault of third persons for whose conduct Redco Corp. is not
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`legally responsible, and the damages recovered by the plaintiffs, if any, should be diminished or
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`reduced in the proportion to which the culpable conduct bears on the total culpable conduct causing
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`the damages. Any liability on the part of Redco Corp., which liability is specifically denied, is
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`fifty-percent or less of the liability of all persons who are the cause of the alleged injuries, if any,
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`and the liability of Redco Corp. for non-economic loss does not exceed Redco Corp.’s equitable
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`share of the liability determined in accordance with the relative culpability of each person causing
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`or contributing to the total liability for non-economic loss pursuant to CPLR §§ 1601 through 1603.
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`AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`This action does not fall within one or more of the exceptions set forth in CPLR § 1602 and
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`Redco Corp. is responsible only for its pro rata share of any verdict that may be rendered against it.
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`FILED: ERIE COUNTY CLERK 01/12/2024 04:07 PM
`NYSCEF DOC. NO. 35
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/12/2024
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`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`In the event of any judgment or verdict on behalf of the Plaintiffs, Redco Corp. is entitled
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`to a set-off of the verdict by the amount of any payments made to the Plaintiffs for medical and
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`other expenses prior or subsequent thereto pursuant to CPLR § 4545.
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`AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Any verdict or judgment against any defendant, including Redco Corp., is entitled to a
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`reduction pursuant to General Obligations Law § 15-108, on the basis of any and all prior
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`settlements and compromises.
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`AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`At all times relevant to this litigation, this defendant complied with all applicable law,
`
`regulations and standards.
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`AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`That at all times relevant to Plaintiffs’ allegations, the agents, servants and/or employees
`
`of Redco Corp. utilized proper methods in the conduct of its operations, in conformity with the
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`available knowledge, research, and state of the art of the scientific and industrial communities.
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`AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`That at all times relevant to Plaintiffs’ allegations, the state of the medical and industrial
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`art was such that there was no generally accepted or recognized knowledge of any unavoidable,
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`unsafe, inherently dangerous, or hazardous character or nature of asbestos-containing material
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`when used in the manner and purpose arising from the allegations of the Complaint and,
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`therefore, there was no duty owed on the part of Redco Corp. to know of any such character or
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`nature or to warn or protect Plaintiffs or others similarly situated.
`
`AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`The named Plaintiffs contributed to the illnesses alleged, either in whole or in part, by
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`exposure to or the use of tobacco products and/or other substances, products, medications or
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`drugs.
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`AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`Some or all of the causes of action may not be maintained because of arbitration and
`
`award, collateral estoppel, a discharge in bankruptcy, infancy (or some other disability) of the
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`Plaintiffs, payment and release, and/or res judicata.
`
`AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`The damages allegedly sustained by the plaintiffs were caused, in whole or in part,
`
`through the operation of nature.
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`AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`All defenses which have been or will be asserted by other defendants and/or any
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`defendants in this action are adopted and incorporated by reference as if fully set forth at length
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`herein as defenses to plaintiffs’ Complaint. In addition, Redco Corp. will rely upon any and all
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`other further defenses which become available or appear during discovery proceedings in this
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`action and hereby specifically reserves the right to amend its answer for the purposes of asserting
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`any such additional affirmative defenses.
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`FILED: ERIE COUNTY CLERK 01/12/2024 04:07 PM
`NYSCEF DOC. NO. 35
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/12/2024
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`AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
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`To the extent that Plaintiffs allege successor-in-interest liability, Redco Corp. denies that
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`is liable for any alleged torts or wrongdoing by any alleged predecessor entities.
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`AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
`REDCO CORP. ALLEGES UPON INFORMATION AND BELIEF
`
`At al