FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
`NYSCEF DOC. NO. 50
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/29/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`-------------------------------------------------------------- X
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`
`:
`TROY SHANE SMITH and ALLYSON JANE SMITH,
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`: Index No.: 814633/2023
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`:
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`:
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`:
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`:
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`:
`84 LUMBER COMPANY, et al.
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`:
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`:
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`:
`-------------------------------------------------------------- X
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`
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`
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`- against -
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`
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`
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`Plaintiff,
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`Defendants.
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`G. DENVER AND CO., LLC’S
`VERIFIED ANSWER, INCLUDING
`AFFIRMATIVE DEFENSES AND
`CROSS CLAIMS
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`Defendants G. DENVER AND CO., LLC, incorrectly named herein as GARDNER-
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`DENVER NASH, LLC., Individually and as Successor to Nash Engineering Company and
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`GARDNER-DENVER INC., Individually and as Successor to Nash Engineering Company,
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`(hereinafter “Gardner Denver”), by its attorneys, Manning Gross + Massenburg LLP, for its
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`Verified Answer to Plaintiff’s Verified Complaint, states as follows:
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`1.
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`Gardner Denver denies any knowledge or information to form a belief as to the
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`allegations contained in paragraphs of the Verified Complaint numbered “1”, “2” and “3” and begs
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`leave to refer all questions of law to this honorable Court.
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`2.
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`As “Defendants” refers to parties other than Gardner Denver, Gardner Denver
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`denies any knowledge or information sufficient to form a belief as to the allegations contained in
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`paragraphs “4” and “5” of the Verified Complaint.
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`3.
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`As “Defendants” refers to Gardner Denver, Gardner Denver denies the allegat io ns
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`contained in paragraph “4” and “5” of the Verified Complaint, except as to admit that Gardner
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`Denver has “conducted or transacted business in” the State of New York, and begs leave to refer
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`all questions of law to this honorable Court.
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`4.
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`Gardner Denver denies any knowledge or information sufficient to form a belief as
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`to the allegations contained in paragraphs of the Verified Complaint numbered “6”, “7”, “8”, “9”,
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`“10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”,
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`“26”, “27”, “28”, “29”, “30”, “31”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”,
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`“44”, “45”, “46”, “47”, “48”,“49”, “50”, “51”, “52”, “53”, “54”, “55”, “56”, “57”, “58”, “59”, and
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`“60”.
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`5.
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`Gardner Denver denies the allegations contained in paragraphs “32” and “33” of
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`the Verified Complaint, except to admit that Gardner Denver is a duly organized domestic
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`corporation that has transacted business in the State of New York, and begs leave to refer all
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`questions of law to this honorable court.
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`6.
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`As “Defendants” refers to parties other than Gardner Denver, Gardner Denver
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`denies any knowledge or information sufficient to form a belief as to the allegations contained in
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`paragraphs of the Verified Complaint numbered “61”, through “69”.
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`7.
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`As “Defendants” refers to Gardner Denver, Gardner Denver denies the allegat io ns
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`contained in paragraphs of the Verified Complaint numbered “61”, through “69”, and begs leave
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`to refer all questions of law to this honorable Court.
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`AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE,
`GARDNER DENVER ANSWERS AS FOLLOWS:
`
`8.
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`Repeats and reiterates each and every response hereinbefore made with the same
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`force and effect as though the same were set forth at length herein in response to paragraph “70”
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`of the Verified Complaint.
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`9.
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`Gardner Denver denies each and every allegation contained in paragraphs “71”
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`through “78” of the Verified Complaint to the extent that such allegations are directed towards
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`Gardner Denver, and begs leave to refer all questions of law to this honorable Court.
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`10.
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` Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “71” through “78” of the Verified
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`Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all
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`questions of law to this honorable Court.
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`AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF
`WARRANTY, GARDNER DENVER ANSWERS AS FOLLOWS:
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`11.
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`Repeats and reiterates each and every response hereinbefore made with the same
`
`force and effect as though the same were set forth at length herein in response to paragraph “79”
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`of the Verified Complaint.
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`12.
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`Gardner Denver denies each and every allegation contained
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`in paragraphs
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`“80” through “83” of the Verified Complaint to the extent that such allegations are directed
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`towards Gardner Denver, and refers all questions of law to this honorable Court.
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`13.
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` Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “80” through “83” of the Verified
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`Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all
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`questions of law to this honorable Court.
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`AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY,
`GARDNER DENVER ANSWERS AS FOLLOWS:
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`14.
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`Repeats and reiterates each and every response hereinbefore made with the same
`
`force and effect as though the same were set forth at length herein in response to paragraph “84”
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`of the Verified Complaint.
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`15.
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`Gardner Denver denies each and every allegation contained in paragraphs “85”
`
`through “93” of the Verified Complaint to the extent that such allegations are directed towards
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`Gardner Denver, and refers all questions of law to this honorable Court.
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`16.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “85” through “93” of the Verified
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`3 of 23
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`Complaint as they relate to other defendants, and therefore denies them, and refers all questions of
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`law to this honorable Court.
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`AS AND FOR A FOURTH CAUSE OF ACTION [FOR] LABOR LAW VIOLATIONS,
`GARDNER DENVER ANSWERS AS FOLLOWS:
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`17.
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`Repeats and reiterates each and every response hereinbefore made with the same
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`force and effect as though the same were set forth at length herein in response to paragraph “94”
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`of the Verified Complaint.
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`18.
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`Gardner Denver denies each and every allegation contained in paragraphs “95”,
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`“96”, “98”, “99”, “100”, “101”, “102”, “103”, “104”, “105”, “106”, “107”, “108”, “109”, “110”,
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`and “112” of the Verified Complaint to the extent that such allegations are directed towards
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`Gardner Denver, and refers all questions of law to the Court.
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`19.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of the allegations contained in paragraphs “95”, “96”, “98”, “99”, “100”, “101”, “102”,
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`“103”, “104”, “105”, “106”, “107”, “108”, “109”, “110”, and “112” of the Verified Complaint as
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`they relate to other defendants, and therefore denies them, and refers all questions of law to this
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`honorable Court.
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`20.
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`Gardner Denver denies any knowledge or information sufficient to form a belief as
`
`to the allegations contained in paragraphs “97” and “111” of the Verified Complaint, and therefore
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`denies them, and refers all questions of law to this honorable Court.
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`AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
`METROPOLITAN LIFE INSURANCE COMPANY,
`GARDNER DENVER ANSWERS AS FOLLOWS:
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`21.
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`Repeats and reiterates each and every response hereinbefore made with the same
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`force and effect as though the same were set forth at length herein in response to paragraph “113”
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`of the Verified Complaint.
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`4 of 23
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`FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
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`22.
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`Gardner Denver denies any knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “114” through “120” of the
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`Verified Complaint as they relate to another defendant, and therefore denies them.
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`AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
`COLLECTIVE LIABILITY/CONCERT OF ACTION,
`GARDNER DENVER ANSWERS AS FOLLOWS:
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`23.
`
`Repeats and reiterates each and every response hereinbefore made with the same
`
`force and effect as though the same were set forth at length herein in response to paragraph “121”
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`of the Complaint.
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`24.
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`Gardner Denver denies each and every allegation contained in paragraphs “122”,
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`“123”, “124”, “125”, “126”, “127”, “128”, “129”, “130”, “132”, “133”, “134”, “135”, and “136 of
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`the Verified Complaint to the extent that such allegations are directed towards Gardner Denver,
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`and refers all questions of law to the Court.
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`25.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
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`to each and every allegation contained in paragraphs “122”, “123”, “124”, “125”, “126”, “127”,
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`“128”, “129”, “130”, “132”, “133”, “134”, “135”, and “136 of the Verified Complaint as they
`
`relate to other defendants, and therefore denies them, and refers all questions of law to this
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`honorable Court.
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`26.
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`Gardner Denver denies each and every allegation contained in paragraph “131” of
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`the Verified Compliant and begs leave to refer all questions of law to this honorable Court.
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`AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT
`CONTRACTORS, GARDNER DENVER ANSWERS AS FOLLOWS:
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`27.
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`Repeats and reiterates each and every response hereinbefore made with the same
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`force and effect as though the same were set forth at length herein in response to paragraph “137”
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`of the Complaint.
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`5 of 23
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`FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
`NYSCEF DOC. NO. 50
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/29/2024
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`28.
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`Gardner Denver denies that the term ‘contractor(s)’ as defined in the paragraph of
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`the Verified Complaint numbered “138” applies to Gardner Denver in this action.
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`29.
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`Gardner Denver denies each and every allegation contained in paragraphs “139”,
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`“140”, “141”, “142”, “143”, “144”, “148”, “149”, and “150” of the Verified Complaint to the
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`extent that such allegations are directed toward Gardner Denver, and begs leave to refer all
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`questions of law to this honorable Court.
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`30.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “139”, “140”, “141”, “142”,
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`“143”, “144”, “148”, “149”, and “150” of the Verified Complaint as they relate to other defendants
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`and therefore denies them, and begs leave to refer all questions of law to this honorable Court.
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`31.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “145”, “146” and “147” of the
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`Verified Complaint, and therefore denies them, and begs leave to refer all questions of law to this
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`honorable Court.
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`AS AND FOR AN EIGHTH CAUSE OF ACTION AGAINST CERTAIN DEFENDANTS,
`GARDNER DENVER ANSWERS AS FOLLOWS:
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`32.
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`Repeats and reiterates each and every response hereinbefore made with the same
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`force and effect as though the same were set forth at length herein in response to paragraph “151”
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`of the Complaint.
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`33.
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`Gardner Denver denies each and every allegation contained in paragraphs “152”,
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`“153”, “154”, “155”, “156”, “157”, “158”, “162”, “163”, “164” and “165” of the Verified
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`Complaint to the extent that such allegations are directed toward Gardner Denver, and begs leave
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`to refer all questions of law to this honorable Court.
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`6 of 23
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`FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
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`34.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
`
`to the truth of each and every allegation contained in paragraphs “152”, “153”, “154”, “155”,
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`“156”, “157”, “158”, “162”, “163”, “164” and “165” of the Verified Complaint as they relate to
`
`other defendants and therefore denies them, and begs leave to refer all questions of law to this
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`honorable Court.
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`35.
`
`Gardner Denver is without knowledge or information sufficient to form a belief as
`
`to the truth of each and every allegation contained in paragraphs “159”, “160”, “161”, and “166”
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`of the Verified Complaint and therefore denies them, and begs leave to refer all questions of law
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`to this honorable Court.
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`AS AND FOR A NINTH CAUSE OF ACTION FOR JOINT AND SEVERAL LIABILITY,
`GARDNER DENVER ANSWERS AS FOLLOWS:
`
`36.
`
`Repeats and reiterates each and every denial hereinbefore made with the same force
`
`and effect as though the same were set forth at length herein in response to paragraph “167” of the
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`Verified Complaint.
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`37.
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`Gardner Denver denies each and every allegation contained in paragraphs “168”,
`
`“169”, “170”, “173”, “174”, “176”, “177”, “178” and “179” of the Verified Complaint to the extent
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`that such allegations are directed towards Gardner Denver, and begs leave to refer all questions of
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`law to this honorable Court.
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`38.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “168”, “169”, “170”, “173”,
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`“174”, “176”, “177”, “178” and “179” of the Verified Complaint as they relate to other defendants
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`and therefore denies them, and begs leave to refer all questions of law to this honorable Court.
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`39.
`
`Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “171”, “172” and “175” of the
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`Verified Complaint and therefore denies them, and begs leave to refer all questions of law to this
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`honorable Court.
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`AS AND FOR A TENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES, GARDNER
`DENVER ANSWERS AS FOLLOWS:
`
`40.
`
`Gardner Denver repeats and reiterates each and every denial hereinbefore made
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`with the same force and effect as though the same were set forth at length herein in response to
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`paragraph “180” of the Verified Complaint.
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`41.
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`Gardner Denver denies each and every allegation contained in paragraph “181” of
`
`the Verified Complaint to the extent that such allegations are directed toward Gardner Denver, and
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`begs leave to refer all questions of law to this honorable Court.
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`42.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraph “181” of the Verified Complaint
`
`as they relate to other defendants and therefore denies them, and begs leave to refer all questions
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`of law to this honorable Court.
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`AS AND FOR A ELEVENTH CAUSE OF ACTION FOR SPOUSAL LOSS OF
`CONSORTIUM, GARDNER DENVER ANSWERS AS FOLLOWS:
`
`43.
`
`Gardner Denver repeats and reiterates each and every denial hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in response to
`
`paragraph “182” of the Verified Complaint.
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`44.
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`Gardner Denver denies each and every allegation contained in paragraphs “183”
`
`and “184” of the Verified Complaint to the extent that such allegations are directed toward Gardner
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`Denver, and begs leave to refer all questions of law to this honorable Court.
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`45.
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`Gardner Denver is without knowledge or information sufficient to form a belief as
`
`to the truth of each and every allegation contained in paragraphs “183” and “184” of the Verified
`
`8 of 23
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`FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
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`Complaint as they relate to other defendants and therefore denies them, and begs leave to refer all
`
`questions of law to this honorable Court.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`46.
`
`
`47.
`
`
`48.
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`The Complaint fails to state a cause of action against Gardner Denver.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`This Court lacks jurisdiction over the subject matter of this action.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`This Court lacks both specific and/or general personal jurisdiction over
`
`Gardner Denver.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`49.
`
`The damages allegedly sustained by the plaintiff was caused, in whole or in
`
`part, by the negligence or other culpable conduct of the plaintiff and/or defendants other than
`
`Gardner Denver, which conduct constituted a supervening cause of plaintiff’s alleged injuries.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`50.
`
`To the extent that the Complaint and each cause of action considered separately may
`
`allege a cause of action occurring before September 1, 1975, each such cause of action is barred by
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`reason of the culpable conduct attributable to plaintiff, including contributory negligence and
`
`assumption of the risk.
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`9 of 23
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`FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`51.
`
`Any damages allegedly sustained by the plaintiff was the proximate result of the
`
`unforeseen and/or unforeseeable negligent, grossly negligent, wanton or reckless omission or
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`conduct of intervening third parties or superseding parties.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`52.
`
`The damages allegedly sustained by the plaintiff was caused, in whole or in part, by
`
`the negligence or other culpable conduct of one or more persons or instrumentalities over which
`
`Gardner Denver had no control and with whom it had no legal relationship.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`53.
`
`The damages allegedly sustained by the plaintiff was caused, in whole or in part,
`
`through the operation of nature.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`54.
`
`If the plaintiff sustained damages as alleged, such damages occurred while they
`
`engaged in activities into which they 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 TENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`55.
`
`The lawsuit was not commenced by the plaintiff within the time prescribed by law
`
`and the plaintiff, therefore, are barred from recovery pursuant to applicable statutes of limitations.
`
`
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`10 of 23
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`FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`56.
`
`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 TWELFTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`57.
`
`To the extent applicable to a particular plaintiff(s), this action cannot be maintained,
`
`as there is another action pending for the same relief.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`58.
`
`To the extent that any injury relating to the named plaintiff occurred in the context of
`
`an employer-employee relationship, claims for said injuries are barred by the Workers'
`
`Compensation Act.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`59.
`
`
`60.
`
`No acts or omissions of Gardner Denver proximately caused any damages.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`Any product of Gardner Denver that may have been present at plaintiff’s job
`
`locations was placed in any such buildings upon specification, approval or at the instruction of
`
`governmental or legislative agencies or bodies.
`
`
`
`
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`11 of 23
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`FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
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`INDEX NO. 814633/2023
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`61.
`
`The damages allegedly sustained by the plaintiff which allegedly arose from his
`
`work with or around allegedly asbestos containing products manufactured by Gardner Denver (the
`
`“Products”) were caused, in whole or in part, by the improper use of the Products, rather than any
`
`defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing,
`
`distribution, sale or inspection of the Products by Gardner Denver.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`62.
`
`The damages allegedly sustained by the plaintiff which allegedly arose from the
`
`Products were caused by the alteration, misuse and/or improper maintenance of the Products by one
`
`or more persons or instrumentalities other than Gardner Denver, rather than any defect in the design,
`
`manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or
`
`inspection of the Products by Gardner Denver.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`63.
`
`Gardner Denver is not liable for the damages allegedly sustained by plaintiff
`
`because plaintiff was not in privity of contract with Gardner Denver at any time and the Products
`
`were not inherently dangerous.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`64.
`
`The Products were not defective or dangerous at any time when Gardner Denver had
`
`possession or control of it.
`
`
`
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`12 of 23
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`FILED: ERIE COUNTY CLERK 01/29/2024 11:33 AM
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`65.
`
`All implied warranties, including the warranties of merchantability and fitness for a
`
`particular purpose, were excluded at the time of the sale of the Products.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`66.
`
`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 Products.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`67.
`
`Gardner Denver is not liable to plaintiff for the damages alleged in the Complaint
`
`because such damages are excluded and not recoverable under express warranty.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`68.
`
`The purchaser of the Products and all beneficiaries of any warranties, express or
`
`implied, relating to the Products failed to provide notice of the alleged breaches of warranty to
`
`Gardner Denver pursuant to the applicable provision(s) of the Uniform Commercial Code.
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`69.
`
`Oral warranties upon which plaintiff allegedly relied are unavailable as violative of
`
`the provisions of the applicable Statute of Frauds.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`70.
`
`To the extent that plaintiff sustained injuries from the use of a product alleged to
`
`contain asbestos, which is denied, plaintiff, plaintiff’s decedents, other defendants or other parties
`
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`not under the control of Gardner Denver misused, abused, misapplied and otherwise mishandled
`
`the product alleged to be asbestos material. Therefore, the amount of damages which may be
`
`recoverable must be diminished by the proportion which said misuse, abuse, misapplication and
`
`mishandling bears to the conduct which caused the alleged damage or injury.
`
`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`71.
`
`In the event it should be proven at the time of trial that all the defendants to this
`
`action are subject to market share liability, which Gardner Denver denies is available in this case,
`
`then Gardner Denver’s share of such liability would be of such a de minimis amount as to make its
`
`contribution for damages negligible and Gardner Denver would be entitled to contribution, either in
`
`whole or in part, from co-defendants.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`72.
`
`The asbestos products alleged in plaintiff’s Complaint are not 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 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`73.
`
`Gardner Denver 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.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`74.
`
`The plaintiff did not directly or indirectly purchase any asbestos-containing products
`
`or materials from Gardner Denver and the plaintiff did not either receive or rely upon any
`
`representation or warranty allegedly made by Gardner Denver.
`
`14 of 23
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`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`75.
`
`To the extent that the plaintiff was exposed to any product containing asbestos as a
`
`result of conduct by Gardner Denver, which is denied, said exposure was de minimis and not a
`
`substantial contributing factor to any asbestos-related disease which the plaintiff may have
`
`developed, and not actionable at law or equity.
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`76.
`
`Exposure to asbestos fibers attributable to the Products, which is denied, is so
`
`minimal as to be insufficient 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 THIRTY-SECOND AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`Finished asbestos-containing products are not unreasonably dangerous as a matter of
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`If Gardner Denver was on notice of any hazard or defect for which plaintiff seeks
`
`law.
`
`77.
`
`
`78.
`
`relief, which Gardner Denver denies, plaintiff also had such notice and are thereby barred from
`
`recovery.
`
`
`79.
`
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`Any damages must be reduced by the value of the benefit received by plaintiff from
`
`the use of Gardner Denver’s products.
`
`15 of 23
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`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`There is no justiciable issue or controversy.
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`The claims for damages have not accrued and are purely speculative, uncertain and
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`Plaintiff has acted voluntarily, unnecessarily, prematurely, with no evidence of
`
`
`80.
`
`
`81.
`
`contingent.
`
`
`82.
`
`injury to anyone at any job locations.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`83.
`
`None of the alleged injuries or damages was foreseeable at the time of the
`
`Complaint or at the time of the alleged acts or omissions in plaintiff’s Complaint.
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`84.
`
`Gardner Denver was under no duty to warn purchasers, those who performed work,
`
`or those under such purchasers’ control who were in a better position to warn; if warning was
`
`required, Gardner Denver’s failure to do so was not a superseding proximate cause of injury.
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`Plaintiff was warned of the risks of exposure to and use of asbestos-containing
`
`
`85.
`
`materials.
`
`
`
`16 of 23
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`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`86.
`
`Plaintiff’s claims are barred as a matter of public policy, since social utility and
`
`benefit of asbestos-containing products outweighed the risk.
`
`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`87.
`
`To the extent that the plaintiff seek to maintain a claim for relief on behalf of any
`
`plaintiff, said plaintiff lack capacity and/or standing to maintain such claim for relief against
`
`Gardner Denver.
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`88.
`
`Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and
`
`indispensable parties.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`89.
`
`Plaintiff may not bring this action as they have failed to exhaust all of their
`
`administrative remedies.
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`90.
`
`Plaintiff and/or plaintiff’s decedents failed to mitigate or otherwise act to lessen or
`
`reduce the injuries alleged in the Complaint.
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`91.
`
`Plaintiff’s demands for exemplary or punitive damages are barred because such
`
`damages are not recoverable or warranted in this action.
`
`17 of 23
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`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`92.
`
`Plaintiff’s 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 FORTY-EIGHTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`93.
`
`Plaintiff’s 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 FORTY-NINTH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`94.
`
`Plaintiff’s 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 FIFTIETH AFFIRMATIVE DEFENSE
`GARDNER DENVER ALLEGES
`UPON INFORMATION AND BELIEF
`
`
`95.
`
`If plaintiff s