FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x
`
`TROY SHANE SMITH and ALLYSON JANE SMITH,
`
`Index No.: 814633/2023
`
`Plaintiff(s),
`
`VERIFIED ANSWER OF
`VELAN VALVE CORP.
`
`-against-
`
`84 LUMBER COMPANY, et al.,
`
`Defendants.
`– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x
`
`Defendant, VELAN VALVE CORP., by its attorneys, GORDON REES SCULLY
`
`MANSUKHANI LLP, in accordance with the Case Management Order, for its Verified Answer
`
`to the complaints in which it is named as a Defendant, provides upon information and belief as
`
`follows:
`
`FIRST:
`
`Denies each and every material allegation in the complaint as they pertain
`
`to VELAN VALVE CORP., and refers all questions of fact and law to the trier of the fact and this
`
`Honorable Court.
`
`SECOND:
`
`Denies knowledge and information sufficient to form a belief with respect
`
`to the truth of all other allegations contained in the complaint, and refers all questions of fact and
`
`law to the trier of fact and this Honorable Court.
`
`THIRD:
`
`Reserves the right to amend this answer and to assert additional defenses,
`
`and/or to supplement, alter or change this answer upon ascertaining additional facts during and
`
`upon completion of discovery and investigations.
`
`1 of 22
`
`
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x
`
`TROY SHANE SMITH and ALLYSON JANE SMITH,
`
`Index No.: 814633/2023
`
`Plaintiff(s),
`
`VERIFIED ANSWER OF
`VELAN VALVE CORP.
`
`-against-
`
`84 LUMBER COMPANY, et al.,
`
`Defendants.
`– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x
`
`Defendant, VELAN VALVE CORP., by its attorneys, GORDON REES SCULLY
`
`MANSUKHANI LLP, in accordance with the Case Management Order, for its Verified Answer
`
`to the complaints in which it is named as a Defendant, provides upon information and belief as
`
`follows:
`
`FIRST:
`
`Denies each and every material allegation in the complaint as they pertain
`
`to VELAN VALVE CORP., and refers all questions of fact and law to the trier of the fact and this
`
`Honorable Court.
`
`SECOND:
`
`Denies knowledge and information sufficient to form a belief with respect
`
`to the truth of all other allegations contained in the complaint, and refers all questions of fact and
`
`law to the trier of fact and this Honorable Court.
`
`THIRD:
`
`Reserves the right to amend this answer and to assert additional defenses,
`
`and/or to supplement, alter or change this answer upon ascertaining additional facts during and
`
`upon completion of discovery and investigations.
`
`1 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AFFIRMATIVE DEFENSES
`
`In the following defenses, the use of the term “Plaintiffs” shall be considered to include
`
`both the singular and the plural, the masculine as well as the feminine, and, where appropriate, the
`
`Plaintiffs’ Decedent. Also, references to the “Complaint” shall, where applicable, include any
`
`amendments thereto.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`The Complaint fails to state a cause of action against Defendant.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`This Court lacks jurisdiction over the subject matter of this action.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`This Court lacks personal jurisdiction over Defendant.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`This Court is not the proper venue for this matter.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`The lawsuit was not commenced by Plaintiffs within the time prescribed by law and the
`
`Plaintiffs, therefore, is barred from recovery pursuant to applicable statutes of limitations or
`
`applicable statutes of repose.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred by the doctrine of laches.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`This action cannot be maintained, as there is another action pending for the same
`
`Relief.
`
`2 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`To the extent that any injury relating to Plaintiffs occurred in the context of an employer-
`
`employee relationship, claims for said injuries are preempted by the Workers’ Compensation Act.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`There is no justiciable issue or controversy.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`The claims for damages have not accrued, are purely speculative, uncertain and contingent.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claim is barred under applicable state and federal law.
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`To the extent Plaintiffs seek to maintain a claim for relief on behalf of any decedent, said
`
`Plaintiffs lack capacity and/or standing to maintain such claim for relief against Defendant.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs lack the necessary standing to maintain this action.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`To the extent Plaintiffs bring suit in a representative capacity, Plaintiffs have failed to
`
`allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers
`
`and Trusts Law §5-1.1 to 5-4.6.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ injury was not foreseeable.
`
`3 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred under applicable law pursuant to public policy, since social
`
`utility and benefit of asbestos-containing products outweighed the risk at the time of Plaintiffs’
`
`alleged exposure.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
`
`indispensable parties.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs may not bring this action as Plaintiffs have failed to exhaust all of their
`
`administrative remedies.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`
`At all times relevant to this litigation, Defendant complied with all applicable law,
`
`regulations and standards.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`
`Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and waiver.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`Upon information and belief, some or all of the causes of action may not be maintained
`
`because of res judicata.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`Plaintiffs’ action is barred by the doctrine of preclusion.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`
`Upon information and belief, some or all of the causes of action may not be maintained
`
`because of arbitration and award.
`
`4 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`Upon information and belief, some or all of the causes of action may not be maintained
`
`because of discharge in bankruptcy.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`Upon information and belief, some or all of the causes of action may not be maintained
`
`because of payment.
`
`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`
`Upon information and belief, some or all of the causes of action may not be maintained
`
`because of release.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`Upon information and belief, Plaintiffs have made claims concerning his alleged injuries
`
`in other matters, including but not limited to claims submitted to various trusts, which claims
`
`foreclose Plaintiffs’ claims against Defendant.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`This Court lacks jurisdiction over Defendant by reason of improper service of process.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`
`The Complaint, and each purported cause of action stated therein, is ambiguous and
`
`uncertain.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`
`Economic and consequential damages are not properly recoverable in tort actions,
`
`including actions based on negligence or strict liability.
`
`5 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`Defendant asserts the defense of forum non-conveniens and reserves the right to seek
`
`dismissal of the complaint.
`
`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`
`If the Plaintiff is barred from recovery, the action of his/her spouse is also barred because
`
`it is a derivative action.
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`
`If it is determined that Plaintiffs used asbestos containing products or components of these
`
`products and it is determined that said products or components were sold by or on behalf of the
`
`United States of America, then Defendant is entitled to any sovereign or governmental immunity
`
`available to the United States of America.
`
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`
`Plaintiffs voluntarily assumed the risk of injury.
`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`
`If Plaintiffs sustained damages as alleged, such damages occurred while Plaintiffs engaged
`
`in activities into which Plaintiffs entered, knowing the hazard, risk and danger of the activities and
`
`they assumed the risks incidental to and attendant to the activities.
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`
`Plaintiff was a sophisticated user and was fully aware of any and all potentially dangerous
`
`conditions.
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`
`No acts or omissions of Defendant proximately caused Plaintiffs’ damages.
`
`6 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A THIRTY- EIGHTH AFFIRMATIVE DEFENSE
`
`To the extent Plaintiff was exposed to any product containing asbestos as a result of
`
`conduct by Defendant, which is denied, said exposure was de minimis and not a substantial
`
`contributing factor to any asbestos-related disease which Plaintiff may have developed, such that
`
`Plaintiffs’ claim is not actionable at law or equity.
`
`AS AND FOR A THIRTY- NINTH AFFIRMATIVE DEFENSE
`
`Exposure to asbestos fibers allegedly attributable to Defendant was so de minimis so as to
`
`be insufficient as a matter of law to enable Plaintiffs to establish to a reasonable degree of
`
`probability that the products are capable of causing injury or damages and must be considered
`
`speculative as a matter of law.
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`
`Finished or otherwise encapsulated asbestos-containing products are not unreasonably
`
`dangerous as a matter of law.
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`
`At all times, Defendant acted reasonably and with due care toward Plaintiffs. Defendant
`
`was not negligent, reckless, did not engage in misconduct or willful misconduct and did not act
`
`with wanton disregard for the rights, safety, and position of Plaintiffs or any other person.
`
`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`
`The damages allegedly sustained by Plaintiffs, which Defendant denies, were not caused
`
`by any product manufactured, sold, distributed, supplied or installed by Defendant.
`
`7 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`
`The damages allegedly sustained by Plaintiffs were caused, in whole or in part, by the
`
`negligence or other culpable conduct of Plaintiffs and/or one or more persons or instrumentalities
`
`over which Defendant had no control and with whom it had no legal relationship, which conduct
`
`constituted a supervening cause of Plaintiffs’ alleged injuries.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`
`The damages allegedly sustained by Plaintiffs were caused, in whole or in part, through
`
`unavoidable and/or unforeseeable natural consequences and/or the idiosyncrasy of Plaintiffs’
`
`bodily composition and consequential unforeseeable reaction to the product, if any, and/or one or
`
`more of its components, if any.
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`
`Defendant was under no duty to warn purchasers, their employees, other independent
`
`contractors, or those under their control. If such warning was required, purchaser or Plaintiffs’
`
`employer owed a duty to warn and their failure to do so was a superseding proximate cause of
`
`injury.
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`
`Defendant denies that there was any defect and/or negligence in the mining, processing,
`
`manufacture, designing, testing, investigation, fashioning, packaging, distribution, delivery, and/or
`
`sale, in any asbestos product or material referred to in Plaintiffs’ Complaint, but if there was any
`
`defect or negligence as alleged, then the Defendant is not liable as it justifiably relied upon
`
`inspection by others in the regular course of trade and business, and their failure constitutes a
`
`superseding proximate cause of any alleged injury suffered by Plaintiffs.
`
`8 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are completely barred or diminished pursuant to the doctrine of
`
`comparative negligence.
`
`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
`
`Any damages which Plaintiffs sustained resulted solely from Plaintiffs’ own negligence.
`
`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
`
`To the extent that Plaintiffs rely upon allegations of negligence, breach of warranty,
`
`fraudulent representation and strict products liability as against Defendant prior to September 1,
`
`1975, the Verified Complaint fails to state a cause of action against Defendant by reason of its
`
`failure to allege the freedom of Plaintiffs from contributory negligence. Insofar as the Verified
`
`Compliant, and each cause of action considered separately, alleges a cause of action accruing on
`
`or after September 1, 1975 to recover damages for personal injuries, the amount of damages
`
`recoverable thereon must be diminished by reason of the culpable conduct attributable to the
`
`Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the
`
`culpable conduct attributable to the Plaintiffs bears on the culpable conduct which caused the
`
`damages.
`
`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
`
`If Defendant was on notice of any hazard or defect for which Plaintiffs seek relief, which
`
`Defendant denies, Plaintiffs also had such notice of the existing hazard at or about the same time
`
`as Defendant, and is thereby is barred from recovery.
`
`AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
`
`Plaintiffs were warned of risk of exposure to use of asbestos-containing materials and failed
`
`to take necessary or recommended precautions to prevent against the risk of injury.
`
`9 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
`
`Plaintiffs contributed to the illness, either in whole or in part, by exposure to or the use of
`
`tobacco products and/or other substances, products, medications or drugs.
`
`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
`
`Plaintiffs failed to provide any timely notice to Defendant of any alleged defect in any
`
`product which Defendant allegedly supplied or manufactured.
`
`AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
`
`Any product sold, manufactured, marketed or distributed by Defendant was in all respects
`
`fit and suitable for its intended and reasonably foreseeable uses and was not in a defective or
`
`dangerous condition when it left Defendant’s possession and control.
`
`AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
`
`Any asbestos products sold or used by Defendant were not inherently defective, unsafe,
`
`ultra-hazardous, dangerous, deleterious, poisonous, and/or otherwise legally harmful and were not
`
`incorrectly packaged.
`
`AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
`
`At the time any product left Defendant’s control, there was no practical and/or technically
`
`feasible safer alternative design that would have prevented the harm without substantially
`
`impairing the reasonably anticipated and intended function of that product.
`
`AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`
`Defendant did not have a duty to test any asbestos products which it might have sold, used
`
`or received from a third party.
`
`10 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`
`Any asbestos-containing product sold by Defendant or used in conjunction with products
`
`sold by Defendant that may have been present at Plaintiffs’ job locations were installed or
`
`configured on the basis of the specifications, approval or at the instruction of governmental or
`
`legislative agencies or other regulatory bodies.
`
`AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
`
`Any asbestos-containing product sold by Defendant or used in conjunction with products
`
`sold by Defendant that may have been present at Plaintiffs’ job locations were installed or
`
`configured on the basis of the specifications, approval or at the instruction Plaintiffs’ employers.
`
`AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
`
`To the extent that Plaintiffs alleges exposure to products manufactured by Defendant for a
`
`government or shipyard contract, the government had a contractual right to specify how the
`
`contract would be complied with, the government exercised that right, and Defendant complied
`
`with those specifications.
`
`AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
`
`The damages sustained by Plaintiffs arising from his alleged exposure to asbestos-
`
`containing products while working on or near the equipment or other product allegedly
`
`manufactured or sold by Defendant (the “Product”), were caused, in whole or in part, by the
`
`improper use and operation of the Product, rather than any defect in the design, manufacture,
`
`production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
`
`of the Product by Defendant.
`
`11 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
`
`The damages sustained by the Plaintiffs which allegedly arose from the product were
`
`caused by its alteration, misuse and/or improper maintenance by one or more persons or
`
`instrumentalities other than Defendant, rather than any defect in the design, manufacture,
`
`production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
`
`of the product by Defendant.
`
`AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
`
`At all times and places mentioned in the Complaint, the Plaintiffs and/or other persons used
`
`this Defendant’s products, if indeed any were used, in any unreasonable manner, not reasonably
`
`foreseeable to this Defendant, and for a purpose for which the products were not intended,
`
`manufactured, or designed; Plaintiffs’ injuries and damages, if any, were directly and proximately
`
`caused by said misuse and abuse, and Plaintiffs’ recovery herein, if any is barred or must be
`
`diminished in proportion to the fault attributable to the Plaintiffs and/or such other parties and
`
`person.
`
`AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE
`
` “Market share” or “enterprise” liability doctrine does not apply to this action. Defendant
`
`is not liable under any such theory.
`
`AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE
`
`Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the
`
`Complaint.
`
`AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE
`
`Any alleged liability of Defendant must be reduced by operation of GOL § 15- 108.
`
`12 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE
`
`Pursuant to Article 16 of the CPLR should the liability, if any, of Defendant be found to be
`
`50% or less of the total liability assigned to all parties liable, then Defendant’s liability to Plaintiffs
`
`for non-economic loss shall be limited to said Defendant’s equitable share, as determined in
`
`accordance with the relative culpability of each party causing or contributing to the total liability
`
`for non-economic loss of Plaintiffs.
`
`AS AND FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE
`
`In the event that Plaintiffs succeed in establishing that any conduct of Defendant caused or
`
`contributed to the injuries which Plaintiffs allege, any damages awarded against Defendant must
`
`be reduced pro tanto by any workmen’s compensation to which the Plaintiffs is or may be entitled
`
`under the applicable statutes.
`
`AS AND FOR A SIXTY-NINTH AFFIRMATIVE DEFENSE
`
`Upon information and belief, Plaintiffs’ economic loss, if any, as specified in § 4545 of the
`
`CPLR, was or will be replaced or indemnified, in whole or in part, from collateral sources, and the
`
`answering Defendant is entitled to have the Court consider the same in determining such special
`
`damages as provided in §4545 of the CPLR.
`
`AS AND FOR A SEVENTIETH AFFIRMATIVE DEFENSE
`
`To the extent that Plaintiffs sustained injuries from the use of a product sold by Defendant
`
`that is alleged to have contained asbestos, which is denied, Plaintiffs, Plaintiffs’ decedents, other
`
`defendants or other parties not under the control of Defendant misused, abused, misapplied and
`
`otherwise mishandled the part of the product alleged to have been asbestos material. Therefore,
`
`the amount of damages must be diminished by the proportion, which said misuse, abuse,
`
`13 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`misapplication and mishandling bears to the conduct, which allegedly caused Plaintiffs’ damage
`
`or injury.
`
`AS AND FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE
`
`In the event it should be proven at the time of trial that all defendants are subject to market
`
`share liability, then Defendant’s share of such liability would be of such a de minimis amount as
`
`to make its contribution for damages negligible, and Defendant would be entitled to contribution,
`
`either in whole or in part, and/or indemnification from co-defendants.
`
`AS AND FOR A SEVENTY-SECOND AFFIRMATIVE DEFENSE
`
`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.
`
`AS AND FOR A SEVENTY-THIRD AFFIRMATIVE DEFENSE
`
`To the extent that Plaintiffs are unable to identify any manufacturer of any product which
`
`allegedly caused his injuries, Plaintiffs cannot state a claim upon which relief may be granted
`
`because that failure would violate Defendant’s constitutional rights: (1) to substantive and
`
`procedural due process of law and equal protection guaranteed by the Fourteenth Amendment of
`
`the United States Constitution and the New York Constitution; and (2) protection against the taking
`
`of private property for public use without just compensation guaranteed by the Fourteenth
`
`Amendment of the United States Constitution and by the New York Constitution.
`
`AS AND FOR A SEVENTY-FOURTH AFFIRMATIVE DEFENSE
`
`At all times relevant to this litigation, the agents, servants and/or employees of Defendant
`
`utilized proper methods in the conduct of its operations, in conformity with the available
`
`knowledge and research of the scientific, industrial and medical communities, and thereby
`
`14 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`complied with the state of the art existing at all relevant times. In the event that any product
`
`manufactured or supplied by Defendant is determined to have been dangerous, Defendant was
`
`unaware of that danger and discovery of it was beyond the state of the art at that time.
`
`AS AND FOR A SEVENTY-FIFTH AFFIRMATIVE DEFENSE
`
`Products or materials manufactured, designed, sold, distributed, supplied and/or utilized by
`
`this answering Defendant were accompanied by adequate warnings which were in conformity with
`
`the existing state of the art in regard to the foreseeable use of said products or materials.
`
`AS AND FOR A SEVENTY-SIXTH AFFIRMATIVE DEFENSE
`
`Defendant is not liable for the damages allegedly sustained by Plaintiffs because Plaintiffs
`
`are not in privity of contract with Defendant at any time and the product was not inherently
`
`dangerous.
`
`AS AND FOR A SEVENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`No implied warranties, including the warranties of merchantability and fitness for a
`
`particular purpose, became a part of the basis of the bargain in the sale of the product.
`
`AS AND FOR A SEVENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`Oral warranties upon which Plaintiffs allegedly relied are unavailable as violative of the
`
`provisions of the applicable Statute of Frauds.
`
`AS AND FOR A SEVENTY-NINTH AFFIRMATIVE DEFENSE
`
`Plaintiffs did not directly or indirectly purchase any asbestos-containing products from
`
`Defendant and, therefore, was not the recipient of an express or implied warranty made by
`
`Defendant.
`
`AS AND FOR AN EIGHTIETH AFFIRMATIVE DEFENSE
`
`Defendant breached no warranties, express or implied.
`
`15 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR AN EIGHTY-FIRST AFFIRMATIVE DEFENSE
`
`Any breach of warranty claim is barred by written disclaimers and exclusions on the labels
`
`of the subject products.
`
`AS AND FOR AN EIGHTY-SECOND AFFIRMATIVE DEFENSE
`
`Plaintiffs did not reasonably and justifiably rely on any alleged representations or
`
`warranties – express or implied.
`
`AS AND FOR AN EIGHTY-THIRD AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims if based upon the allegations of express or implied warranty are barred
`
`because no sale of goods occurred.
`
`AS AND FOR AN EIGHTY-FOURTH AFFIRMATIVE DEFENSE
`
`Plaintiffs and all third-party beneficiaries of any warranties, express or implied, relating to
`
`Defendant’s product or services failed to provide notice of the alleged breaches of pursuant to the
`
`applicable provision of the Uniform Commercial Code.
`
`AS AND FOR AN EIGHTY-FIFTH AFFIRMATIVE DEFENSE
`
`The concept of strict liability does not apply to this litigation.
`
`AS AND FOR AN EIGHTY-SIXTH AFFIRMATIVE DEFENSE
`
`Defendant denies that the asbestos products alleged in Plaintiffs’ 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 AN EIGHTY-SEVENTH AFFIRMATIVE DEFENSE
`
`Defendant cannot be held liable under principles of strict tort liability because products
`
`manufactured and/or products which left Defendant’s possession did so prior to the enactment of
`
`New York’s law regarding strict liability.
`
`16 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR AN EIGHTY-EIGHTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ cause of action for exemplary or punitive damages is barred because such
`
`damages are not recoverable under applicable law or otherwise unwarranted in this action.
`
`AS AND FOR AN EIGHTY-NINTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ demands for punitive damages are barred by the due process clauses of the
`
`Fourteenth Amendment to the United States Constitution and the New York State Constitution.
`
`AS AND FOR A NINETIETH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ demands for punitive damages are barred by the proscription of the Eighth
`
`Amendment to the United States Constitution, as applied to the states through the Fourteenth
`
`Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the
`
`imposition of excessive fines.
`
`AS AND FOR A NINETY-FIRST AFFIRMATIVE DEFENSE
`
`Plaintiffs’ demands for punitive damages are barred by the “double jeopardy” clause of the
`
`Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth
`
`Amendment, and Article I, Section 6 of the New York State Constitution.
`
`AS AND FOR A NINETY-SECOND AFFIRMATIVE DEFENSE
`
`Punitive damages cannot be awarded against this Defendant for any of the alleged actions
`
`or omissions of any of this Defendant’s predecessors because there is not a sufficient degree of
`
`identity between this Defendant and any of its predecessors to justify such an award.
`
`AS AND FOR A NINETY-THIRD AFFIRMATIVE DEFENSE
`
`Defendant did not take part in and was not part of or party to any conspiracy.
`
`AS AND FOR A NINETY-FOURTH AFFIRMATIVE DEFENSE
`
`Defendant did not make any misrepresentation and/or commit any fraudulent acts.
`
`17 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A NINETY-FIFTH AFFIRMATIVE DEFENSE
`
`Defendant did not distort or cause to be distorted any medical examinations, results or data,
`
`did not edit or alter medical literature, did not attempt to prevent the publication of medical
`
`literature and did not distort or cause to be distorted medical information.
`
`AS AND FOR A NINETY-SIXTH AFFIRMATIVE DEFENSE
`
`If Plaintiffs have received, or are now or subsequently become entitled to recover, any
`
`compensation or benefits from any source in connection with the harm alleged in the Complaint,
`
`including economic and non-economic loss, the amount of damages, if any, that may be
`
`recoverable in this civil action must be diminished by the amount of such recovery, compensation
`
`and/or benefits.
`
`AS AND FOR A NINETY-SEVENTH AFFIRMATIVE DEFENSE
`
`Defendant alleges that Plaintiffs and/or his agents negligently or intentionally failed to
`
`preserve and permitted the spoliation of material evidence including but not limited to the products
`
`which Plaintiffs allege give rise to his complaint. Such conduct bars Plaintiffs’ action and/or gives
`
`rise to evidentiary sanctions against Plaintiffs and/or other remedies for this defendant.
`
`AS AND FOR A NINETY-EIGHTH AFFIRMATIVE DEFENSE
`
`The Order of the Bankruptcy Court, which prevents Defendant from joining indispensable
`
`parties who have declared bankruptcy, has the effect of requiring this defendant to defend this
`
`action without those other parties as co-defendants and prevents the Court from being able to hear
`
`and adjudge all relevant evidence in regard to Plaintiffs’ claims and therefore denies this defendant
`
`its constitutional right to due process under the Fourteenth Amendment of the United States
`
`Constitution.
`
`18 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`AS AND FOR A NINETY-NINTH AFFIRMATIVE DEFENSE
`
`Plaintiffs may not pursue the claim for loss of consortium pursuant to the matter of Consorti
`
`v. Owens-Corning, 86 N.Y.2d 449 (1995).
`
`AS AND FOR A ONE-HUNDREDTH AFFIRMATIVE DEFENSE
`
`All defenses which have been or will be asserted by other defendants and/or any third-
`
`party defendants in this action are adopted and incorporated by reference as if fully set forth at
`
`length herein as defenses to Plaintiffs’ Complaint. In addition, Defendant will rely upon any and
`
`all other further defenses which become available or appear during discovery proceedings in this
`
`action and hereby specifically reserves the right to amend its answer for the purposes of asserting
`
`any such additional defenses.
`
`AS AND FOR A ONE HUNDRED AND FIRST AFFIRMATIVE DEFENSE
`
`Defendant denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations set forth in any subsequent pleading as to parties other than Defendant, and denies the
`
`truth of each and every allegation contained therein as they purport to pertain to Defendant.
`
`AS AND FOR A ONE HUNDRED AND SECOND AFFIRMATIVE DEFENSE
`
`If Plaintiffs sustained injuries in the manner alleged, all of which is denied by this
`
`Defendant, the liability of Defendant, if any, shall be limited in accordance with Article 14-A of
`
`the Civil Practice Law and Rules.
`
`CROSS-CLAIMS
`
`That if Plaintiff sustained the damages in the manner and at the time and place alleged by
`
`reason other than Plaintiff’s own carelessness, recklessness, negligence and/or acts of omission or
`
`commission and if it is found that VELAN VALVE CORP. is liable to Plaintiffs herein, all of
`
`which is specifically denied, then VELAN VALVE CORP., on the basis of apportionment of
`
`19 of 22
`
`
`
`FILED: ERIE COUNTY CLERK 12/15/2023 03:18 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/15/2023
`
`responsibility for the alleged occurrence, is entitled to indemnification and/or contribution from
`
`the co-defendants and judgment over and against the aforementioned co-defendants, as a result of
`
`the carelessness, recklessness, negligence and/or acts of omission or commission and/or breach of
`
`warranty and/or breach of contract and/or strict or statutory liability of said co-defendants, their
`
`agents, servants and/or employees for all or part of any verdict or judgment that Plaintiffs may
`
`recover against VELAN VALVE CORP.
`
`All cross-claims which have been or will be asserted by other defendants and
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
