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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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`Index No. 814633/2023
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`-against-
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`Plaintiffs,
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`84 LUMBER COMPANY, et al.,
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`Defendants.
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`VERIFIED ANSWER
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`AND CROSS-CLAIMS OF
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`DEFENDANT LENNOX
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`INDUSTRIES INC.
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`Defendant Lennox Industries Inc. (“Lennox”), incorrectly sued herein as “Lennox
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`Industries, Inc., Individually and as Successor to Lennox Furnace Company and Ducane,” by its
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`attorneys, Darger Errante Yavitz & Blau LLP, answers the Verified Complaint (the “Complaint”)
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`of Plaintiffs Troy Shane Smith and Allyson Jane Smith, (“Plaintiff” or collectively “Plaintiffs”) as
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`follows:
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`1.
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`Lennox denies knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in paragraphs 1 through 3 of the Complaint.
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`2.
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`Paragraph 4 of the Complaint contains no allegations to which a response is
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`required; to the extent a response is required, Lennox denies the allegations contained in the
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`aforesaid paragraph insofar as they pertain to Lennox and denies knowledge or information
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`sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties.
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`3.
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`Lennox denies the allegations contained in paragraph 5 of the Complaint as they
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`pertain to Lennox, except admits that Lennox is a Delaware corporation with its principal place of
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`business in Texas, and denies knowledge or information sufficient to form a belief as to the truth
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`of such allegations as they pertain to other parties.
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`4.
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`Lennox denies knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in paragraphs 6 through 43 of the Complaint.
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`5.
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`Lennox denies the allegations contained in paragraph 44 of the Complaint, except
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`admits that Lennox is a Delaware corporation with its principal place of business in Texas.
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`6.
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`Lennox denies knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in paragraphs 45 through 61 of the Complaint.
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`7.
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`Lennox denies the allegations contained in paragraph 62 of the Complaint as they
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`pertain to Lennox, except admits that Lennox is a Delaware corporation with its principal place of
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`business in Texas, and denies knowledge or information sufficient to form a belief as to the truth
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`of such allegations as they pertain to other parties.
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`8.
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`Lennox denies the allegations contained in paragraphs 63 through 69 of the
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`Complaint, insofar as such allegations pertain to Lennox, and denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
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`they pertain to other parties.
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`AS TO THE FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE
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`In response to paragraph 70 of the Complaint, Lennox repeats, reiterates, and
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`9.
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`realleges each and every response to the allegations contained in paragraphs 1 through 69 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`10.
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`Lennox denies the allegations contained in paragraphs 71 through 78 of the
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`Complaint, insofar as such allegations pertain to Lennox, and denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
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`they pertain to other parties.
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`AS TO THE SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY
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`11.
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`In response to paragraph 79 of the Complaint, Lennox repeats, reiterates, and
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`realleges each and every response to the allegations contained in paragraphs 1 through 78 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`12.
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`Lennox denies the allegations contained in paragraphs 80 through 83 of the
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`Complaint insofar as such allegations pertain to Lennox, and denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs
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`insofar as they pertain to other parties.
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`AS TO THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY
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`In response to paragraph 84 of the Complaint, Lennox repeats, reiterates, and
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`13.
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`realleges each and every response to the allegations contained in paragraphs 1 through 83 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`14.
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`Lennox denies the allegations contained in paragraphs 85 through 93 of the
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`Complaint insofar as such allegations pertain to Lennox, and denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs
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`insofar as they pertain to other parties.
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`AS TO THE FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS
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`In response to paragraph 94 of the Complaint, Lennox repeats, reiterates, and
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`15.
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`realleges each and every response to the allegations contained in paragraphs 1 through 93 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`16.
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`Lennox denies the allegations contained in paragraphs 95 through 112 of the
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`Complaint, insofar as such allegations pertain to Lennox, denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs
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`insofar as they pertain to other parties, and refers all questions of law to the Court.
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`AS TO THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE
`INSURANCE COMPANY
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`In response to paragraph 113 of the Complaint, Lennox repeats, reiterates, and
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`17.
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`realleges each and every response to the allegations contained in paragraphs 1 through 112 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`18.
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`Paragraphs 114 through 120 of the Complaint contain no allegations to which a
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`response is required; to the extent a response is required, Lennox denies the allegations contained
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`in the aforesaid paragraph insofar as they pertain to Lennox and denies knowledge or information
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`sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties.
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`AS TO THE SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
`COLLECTIVE LIABILITY/CONCERT OF ACTION
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`In response to paragraph 121 of the Complaint, Lennox repeats, reiterates, and
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`19.
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`realleges each and every response to the allegations contained in paragraphs 1 through 120 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`20.
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`Lennox denies the allegations contained in paragraphs 122 through 136 of the
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`Complaint and denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations as they pertain to other parties.
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`AS TO THE SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS
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`In response to paragraph 137 of the Complaint, Lennox repeats, reiterates, and
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`21.
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`realleges each and every response to the allegations contained in paragraphs 1 through 136 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`22.
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`Paragraph 138 of the Complaint contains no allegations to which a response is
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`required; to the extent a response is required, Lennox denies the allegations contained in the
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`aforesaid paragraph insofar as they pertain to Lennox and denies knowledge or information
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`sufficient to form a belief as to the truth of these allegations insofar as they pertain to other parties.
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`23.
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`Lennox denies the allegations contained in paragraphs 139 through 150 of the
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`Complaint and denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations as they pertain to other parties, and refers all questions of law to the Court.
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`AS TO THE EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST
`CERTAIN DEFENDANTS
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`In response to paragraph 151 of the Complaint, Lennox repeats, reiterates, and
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`24.
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`realleges each and every response to the allegations contained in paragraphs 1 through 150 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`25.
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`Lennox denies the allegations contained in paragraphs 152 through 166 of the
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`Complaint and denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations as they pertain to other parties, and refers all questions of law to the Court.
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`AS TO THE NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY
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`In response to paragraph 167 of the Complaint, Lennox repeats, reiterates, and
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`26.
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`realleges each and every response to the allegations contained in paragraphs 1 through 166 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`27.
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`Lennox denies the allegations contained in paragraphs 168 through 179 of the
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`Complaint, insofar as such allegations pertain to Lennox, denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs
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`insofar as they pertain to other parties, and refers all questions of law to the Court.
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`AS TO THE TENTH CAUSE OF ACTION PUNITIVE DAMAGES
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`In response to paragraph 180 of the Complaint, Lennox repeats, reiterates, and
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`28.
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`realleges each and every response to the allegations contained in paragraphs 1 through 179 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`29.
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`Lennox denies the allegations contained in paragraph 181 of the Complaint and
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations as they
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`pertain to other parties.
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`AS TO THE ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF CONSORTIUM
`30.
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`In response to paragraph 182 of the Complaint, Lennox repeats, reiterates, and
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`realleges each and every response to the allegations contained in paragraphs 1 through 181 of the
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`Complaint with the same force and effect as if set forth at length hereinafter.
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`31.
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`Lennox denies knowledge or information sufficient to form a belief as to the truth
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`of the allegations contained in paragraph 183 of the Complaint.
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`32.
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`Lennox denies the allegations contained in paragraph 184 of the Complaint and
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations as they
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`pertain to other parties.
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`FOR A FIRST AFFIRMATIVE DEFENSE
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`The Complaint fails to state cognizable claims as against Lennox.
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`FOR A SECOND AFFIRMATIVE DEFENSE
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`While denying Plaintiff’s allegations with respect to liability, to the extent that negligence
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`of culpable conduct may be proven, the acts of Lennox are not a proximate cause of any injuries
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`to Plaintiff.
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`FOR A THIRD AFFIRMATIVE DEFENSE
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`The Complaint fails to comply with the most minimal pleading requirements.
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`FOR A FOURTH AFFIRMATIVE DEFENSE
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`To the extent that the Complaint and the claims made by Plaintiff were not commenced
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`within the time limited by law, the Complaint is barred by the applicable statute of limitations
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`and/or laches.
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`FOR A FIFTH AFFIRMATIVE DEFENSE
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`In the event that Plaintiff used any asbestos-containing product(s), said product(s) was
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`misused, or improperly used, which misuse or improper use proximately caused and contributed,
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`in whole or in part, to the claims alleged by Plaintiff in the Complaint.
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`FOR A SIXTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff failed and neglected to maintain this action in a swift, diligent,
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`and timely fashion, the Complaint is barred by waiver and laches.
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`FOR A SEVENTH AFFIRMATIVE DEFENSE
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`The injuries and/or illnesses to Plaintiff, if any, are unrelated to any act or omission of
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`Lennox or any individual acting under its direction or control.
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`FOR AN EIGHTH AFFIRMATIVE DEFENSE
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`Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce
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`the injuries and disabilities alleged in the Complaint.
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`FOR A NINTH AFFIRMATIVE DEFENSE
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`If Plaintiff sustained the injuries and damages as alleged, the same were caused, in whole
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`or in part, by the conduct of one or more persons or entities over whom Lennox exercised no
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`control and with whom Lennox had no legal relationship.
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`FOR A TENTH AFFIRMATIVE DEFENSE
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`To the extent that Lennox conformed to the scientific knowledge and research data
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`available to industry and the scientific community, Lennox have fulfilled its obligations, if any,
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`herein, and the Complaint is barred, in whole or in part.
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`FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff alleges rights assertedly derived from oral warranties,
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`statements, or undertakings on the part of Lennox, the Complaint is barred by the applicable statute
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`of frauds.
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`FOR A TWELFTH AFFIRMATIVE DEFENSE
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`To the extent that the claims pleaded by Plaintiff fail to accord with the Uniform
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`Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint is barred.
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`FOR A THIRTEENTH AFFIRMATIVE DEFENSE
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`To the extent that any of the products for which liability is charged to Lennox, which is
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`denied, were modified, altered, qualified, assembled, or in any other way materially varied, which
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`same may be causally related to the claims of Plaintiff, the Complaint is barred.
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`FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`The cause(s) of action pleaded in the Complaint insofar as they assert an alleged cause of
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`action for express and/or implied warranties and the alleged breaches thereof, as against Lennox,
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`is legally insufficient by reason of the failure to allege privity of contract and/or privity of
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`warranties between Plaintiff and Lennox.
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`FOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`Upon information and belief, insofar as Plaintiff relies upon allegations of negligence,
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`breaches of warranties, fraudulent representations and violations of obligations of strict products
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`liability as against Lennox, said causes of action fail to state facts sufficient to constitute causes of
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`action as against Lennox by reason of the failure to allege the freedom of Plaintiff from
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`contributory negligence or fault, and if Plaintiff sustained the injuries, losses and other damages
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`complained of in the Complaint, such injuries, losses, and damages were caused and brought about,
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`in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or the culpable
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`conduct of Plaintiff.
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`FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`The injuries and/or illnesses to Plaintiff, if any, arose, in whole or in part out of the risks,
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`hazards and dangers incident to the occupation of Plaintiff, all of which, whether related to asbestos
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`or not, were open, obvious and well known to Plaintiff, and the Complaint is barred by virtue of
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`Plaintiff’s assumption of the risks thereof.
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`FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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`Upon information and belief, Lennox complied with all safety rules and regulations in
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`effect at the relevant times and acted reasonably in all of its activities.
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`FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
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`To the extent that the use, application, employment, surrounding conditions, safety
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`precautions, and other circumstances attendant upon the material allegedly used by Plaintiff were
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`determined, controlled, selected, or limited by him and/or by others for whose acts, omissions, or
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`breach Lennox is not liable, the Complaint is barred, in whole or in part.
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`FOR A NINETEENTH AFFIRMATIVE DEFENSE
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`The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workmen’s
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`Compensation statutes and shall have constituted an industrial disability and the exclusive remedy,
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`if any, shall lie within the terms and ambit of said statutes.
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`FOR A TWENTIETH AFFIRMATIVE DEFENSE
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`Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages
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`complained of in the Complaint, such injuries, losses, and damages were caused or brought about
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`in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable
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`conduct of parties or third parties to this action, other than Lennox, and over whom Lennox had
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`neither control nor right of control.
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`FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
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`Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages
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`complained of in the Complaint, such injuries, losses, and damages were caused or brought about,
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`in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable
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`conduct of Plaintiff.
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`FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`Upon information and belief, any recovery in this action by Plaintiff, if any, must be
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`diminished and reduced in the proportion which said culpable conduct of Plaintiff bears to the
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`alleged culpable conduct of Lennox, if any, which allegedly caused said injuries, losses, and
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`damages.
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`FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
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`At all times during the conduct of its corporate operations, Lennox and the agents, servants,
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`and/or employees of Lennox complied with all applicable law, regulations, standards, and the
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`available knowledge, and technology of the medical, scientific, and industrial communities.
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`FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`At all times material hereto, the state of the medical, industrial and scientific arts,
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`knowledge, and technology was that there was no generally accepted or recognized nature of
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`asbestos-containing products when used in the manner and for the purposes intended, so that there
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`was no duty by Lennox to know of such character or nature or to warn Plaintiff, or others similarly
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`situated, and to the extent such duty arose, adequate warnings either were given or were not
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`necessary under all circumstances.
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`FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`The parties, other than Lennox, who were responsible for the conditions of Plaintiff’s work
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`environment were sophisticated purchasers upon whom devolved all responsibility for the use of
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`the products referred to in the Complaint.
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`FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`In the event it should be proven at the time of trial that all the defendants are subject to
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`liability, then, Lennox’s share of such liability would be of such a de minimus amount as to make
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`its contribution for damages negligible, and Lennox would be entitled to contribution, either in
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`whole or in part, from the co-defendants not represented by this Verified Answer and Cross-
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`Claims.
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`FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`The action cannot proceed in the absence of all parties who should be named in accordance
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`with Rule 19 of the Federal Rules of Civil Procedure and/or CPLR 1001.
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`FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`Proceeding in this action without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight
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`Insulation, Owens-Corning and/or Standard Insulations, W.R. Grace, and all other entities in
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`Bankruptcy relating thereto, would be in violation of Lennox’s constitutional rights.
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`FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff relies on the New York Law, L. 1986. c. 682, Section 4 as
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`
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`grounds for reviving or maintaining the action, said statute(s) is unconstitutional and deprives
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`Lennox of its constitutional rights and is wholly void and unenforceable.
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`FOR A THIRTIETH AFFIRMATIVE DEFENSE
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`To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and
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`prompt notice of any such breach of warranty to Lennox.
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`FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
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`Any recovery by Plaintiff in this action must be reduced by collateral source payments
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`pursuant to CPLR Section 4545.
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`FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff contributed to his injuries by the use or misuse, either in whole
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`or in part, of other substances, products, medications, and drugs, including, but not limited to any
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`tobacco products, any liability should be reduced by the extent of any use and/or injuries related
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`thereto or caused thereby pursuant to the Restatement of Torts (Second) §433A.
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`FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
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`If Plaintiff was caused to sustain personal injuries at the time and place set forth in the
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`Complaint and in the manner alleged therein through any carelessness, recklessness, acts,
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`omissions, negligence, and/or breaches of duty and/or warranty and/or contract, other than that of
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`Plaintiff, then the said damages arose out of the carelessness, recklessness, acts, omissions,
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`negligence, and breaches of duty and/or warranty and/or contract in fact or implied-in-law, upon
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`the part of the co-defendants and third-party defendants now or hereafter named, with
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`indemnification and/or contribution due to Lennox as implied-in-fact or implied-in-law, and if
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`Lennox is found liable as to Plaintiff and/or any third-party Plaintiffs for the injuries and damages
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`set forth in the Complaint and/or the third-party complaints, then the said co-defendants and third-
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`party defendants now or hereafter named will be liable jointly and severally to Lennox and will be
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`bound to fully indemnify and hold Lennox harmless for the full amount of any verdict or judgment,
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`and/or Lennox is entitled to contribution, in whole or in part, from each of the co-defendants and
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`third-party defendants now or hereafter named, together with the costs and disbursements incurred
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`in the defense of this action.
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`FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff was exposed to toxic substances, any liability should be reduced
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`to the extent any injuries are related to thereto or caused thereby.
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`FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff seeks punitive damages against Lennox and relies on Section 4
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`of the New York Laws 1986, c. 682 as grounds for reviving or maintaining the action, such
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`damages are improper and are not authorized by law since this statute does not revive any claims
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`for punitive damages, leaving each of such claims time barred in its entirety.
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`FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff seeks punitive damages against Lennox, these damages are
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`improper and unwarranted, not authorized by law, and are unconstitutional. Subjecting Lennox to
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`multiple trials and the multiple impositions of punitive damages for a single course of conduct is
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`a violation of both substantive and procedural due process under the Fourteenth Amendment to
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`the United States Constitution and the Constitution of the State of New York. Furthermore, the
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`standard governing the award of punitive damages is constitutionally void for vagueness.
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`FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
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`The injuries and/or illnesses, if any, sustained by Plaintiff, were caused or contributed to
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`by the fault, neglect, and want of care on the part of Plaintiff, or on the part of others for whose
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`acts or omissions or breach of legal duty, and Lennox is not liable.
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`FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
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`
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`Plaintiff’s claims for punitive damages cannot be sustained because an award of punitive
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`damages under New York state law by a jury would violate Lennox’s privileges and immunities,
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`due process and equal protection rights guaranteed under the Fourteenth Amendment to the United
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`States Constitution, and the Commerce Clause under Article I to the United States Constitution,
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`as well as the New York Constitution, and would be improper under the common law and public
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`policies of New York.
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`FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
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`Lennox pleads comment k to the Restatement (Second) of Torts, Section 402A.
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`FILED: ERIE COUNTY CLERK 01/26/2024 10:29 PM
`NYSCEF DOC. NO. 49
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/26/2024
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`FOR A FORTIETH AFFIRMATIVE DEFENSE
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`Each of Plaintiff’s claims is barred by prior accord and satisfaction.
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`FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
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`To the extent that the physically injured Plaintiff’s alleged asbestos exposure occurred prior
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`to the date of his/her marriage, no loss of consortium claim may be asserted.
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`FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
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`Plaintiff’s claims for exemplary or punitive damages are barred because such damages are
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`not recoverable or warranted in this action.
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`FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
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`
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`Article 16 of the Civil Practice Law and Rules applies to this action and pursuant to the
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`law of New York, the liability, if any, of Lennox for non-economic loss is not joint and several but
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`shall be limited to the proportionate share, if any, attributed to Lennox.
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`FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
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`Lennox’s activities and undertakings were conducted in a reasonable fashion, without
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`recklessness, malice, or wantonness, and Plaintiff may not recover in this action any compensatory,
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`exemplary, or punitive damages against Lennox.
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`FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
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`Lennox asserts that this Court lacks personal jurisdiction over it in this action.
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`FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
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`Lennox asserts that this Court lacks subject matter jurisdiction over this action.
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`FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
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`Lennox gave, made or otherwise extended no warranties, whether express or implied, upon
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`which Plaintiff has a right to rely.
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`FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
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`FILED: ERIE COUNTY CLERK 01/26/2024 10:29 PM
`NYSCEF DOC. NO. 49
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/26/2024
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`Lennox denies specifically that, during the periods of exposure alleged in the Complaint,
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`it processed, manufactured, designed, supplied, developed, tested, fashioned, packaged,
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`distributed, delivered, sold, and/or otherwise placed in the stream of commerce a substantial and/or
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`any percentage of the asbestos-containing products to which the physically injured Plaintiff was
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`caused to come into contact and which Plaintiff was caused to breathe, inhale, and/or digest which
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`thereby caused Plaintiff alleged injuries and resulting damages alleged in the Complaint.
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`FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
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`Plaintiff’s claims should be dismissed on the grounds of improper venue and/or forum non
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`conveniens.
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`FOR A FIFTIETH AFFIRMATIVE DEFENSE
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`If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are
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`the result of an idiosyncratic reaction, rather than the result of any negligence or breach of duty
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`attributable in any manner to Lennox.
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`FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
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`
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`The physically injured Plaintiff may have significant pre-existing medical histories that
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`were the causative factor of the alleged injuries.
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`FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
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`Lennox asserts that, in all respects, it conducted its operations in a reasonable manner.
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`FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
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`If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are
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`the result of an operation of nature, rather than the result of want of care or breach of duty by
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`Lennox.
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`FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
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`Any verdict or judgment against any defendant, including Lennox, is entitled to reduction
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`FILED: ERIE COUNTY CLERK 01/26/2024 10:29 PM
`NYSCEF DOC. NO. 49
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/26/2024
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`pursuant to General Obligations Law § 15-108, on the basis of prior settlements and/or
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`compromises.
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`FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
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`All defenses that have been or will be asserted by other defendants in this action are adopted
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`and incorporated by reference as if fully set forth at length herein as defenses to the Complaint.
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`FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
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`Lennox reserves the right to amend this Verified Answer and Cross-Claims to assert
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`additional defenses upon discovery of the specific facts upon which Plaintiff bases its claims for
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`relief, and upon completion of further discovery.
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`ANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS
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`Lennox denies any and all cross-claims for contribution and/or indemnification that have
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`been asserted or may be asserted at any time by co-defendants in this action.
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`CROSS-CLAIMS AGAINST CO-DEFENDANTS AND THIRD-PARTY DEFENDANTS
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`
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`If Plaintiff was caused to sustain personal injuries at the time and place set forth in the
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`Complaint and alleged therein through any carelessness, recklessness, acts, omissions, negligence,
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`and/or breaches of duty and/or warranty and/or contract, other than that of Plaintiff, then the such
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`injuries arose out of the carelessness, recklessness, acts, omissions, negligence, and breaches of
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`duty and/or warranty and/or contract in-fact or implied-in-law, upon the part of the co-defendants
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`and third-party defendants now or hereafter named herein with indemnification and/or contribution
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`to Lennox as implied-in-fact or implied-in-law, and if Lennox is found liable as to Plaintiff and/or
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`third-party Plaintiff(s) for the injuries and damages set forth in the Complaint and/or in any third-
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`party complaint(s), then the said co-defendants and third-party defendants will be liable jointly
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`and severally to Lennox and should indemnify and hold Lennox harmless for the full amount of
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`any verdict or judgment, or in the alternative, Lennox is entitled to contribution, in whole or in
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`FILED: ERIE COUNTY CLERK 01/26/2024 10:29 PM
`NYSCEF DOC. NO. 49
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/26/2024
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`part, from each of the co-defendants and third-party defendants now or hereafter named herein,
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`together with the costs and disbursements incurred in the defense of this action.
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`FILED: ERIE COUNTY CLERK 01/26/2024 10:29 PM
`NYSCEF DOC. NO. 49
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/26/2024
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`WHEREFORE, Lennox demands judgment dismissing the Complaint, or in the alternative,
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`demands judgment over and against the co-defendants and third-party defendants now and
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`hereafter named on the basis of indemnification or contribution for all or part of any verdict or
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`judgment, together with its costs and disbursements, and such other and further relief as this Court
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`deems appropriate.
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`Dated: January 26, 2024
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`New York, New York
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`
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`To: Joseph W. Belluck, Esq.
`BELLUCK & FOX, LLP
`546 Fifth Avenue, 5th Floor
`New York, NY 10036
`212.681.1575
`Counsel for Plaintiff
`
`
`
`
`
`/s/ Kylie Ayal
`
`
`By: Kylie Ayal, Esq.
`DARGER ERRANTE YAVITZ & BLAU LLP
`116 East 27th Street, 12th Floor
`New York, New York 10016
`212.452.5300
`Counsel for Defendant Lennox Industries Inc.
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`FILED: ERIE COUNTY CLERK 01/26/2024 10:29 PM
`NYSCEF DOC. NO. 49
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`INDEX NO.