`NYSCEF DOC. NO. 52
`
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`
`
` VERIFIED ANSWER
`
` Index No.: 814633/2023
`
`
`
`vs.
`
`Defendants.
`____________________________
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`________________________________________________
`
`TROY SHANE SMITH and ALLYSON JANE SMITH,
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`84 LUMBER COMPANY, et al.,
`
`
`
`
`
`
`VERIFIED ANSWER OF BW/IP, INC. and
`Its Wholly-Owned Subsidiaries TO THE VERIFIED COMPLAINT
`
`Defendant, BW/IP and its wholly-owned subsidiaries, formerly known as Borg Warner
`
`
`
`Industrial Products Inc. a Former subsidiary of and successor to Borg Warner Corp. and Byron
`
`Jackson Pumps, hereinafter “BW/IP”, by its attorneys, Barclay Damon LLP, as and for its verified
`
`answer to the Plaintiffs’ Complaint, respectfully alleges upon information and belief, as follows:
`
`1.
`
`Denies knowledge or information sufficient to form a belief as to the truth of each
`
`and every allegation contained in Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19,
`
`20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45,
`
`46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 114, 115, 116, 117, 118, 119, 120,
`
`138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 152, 153, 154, 155, 156, 157,
`
`158, 159, 160, 161, 162, 166, and 183 of the verified complaint.
`
`2.
`
`Denies each and every allegation, and all subparts thereto, contained in paragraphs
`
`2, 5, 62, 63, 64, 65, 66, 67, 68, 69, 71, 72, 73, 74, 75, 76, 77, 78, 80, 81, 82, 85, 86, 87, 88, 89, 90,
`
`91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112,
`
`
`
`27646971.1
`
`
`
`
`1 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 163, 164, 165, 168,
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 181, and 184 of the verified complaint as it
`
`relates to defendant, BW/IP, INC., and denies knowledge or information sufficient to form a belief
`
`as to the truth of the allegations as to the co-defendants.
`
`3.
`
`Admit so much of Paragraph 16 that, BW/IP was a duly organized foreign
`
`corporation doing business in the State of New York and denies the rest and remainder of said
`
`paragraph.
`
`4.
`
`As and for its response to paragraphs 70, 79, 84, 94, 113, 121, 137, 151, 167, 180,
`
`and 182, defendant BW/IP repeats, reiterates and realleges the responses previously interposed to
`
`the allegations contained in paragraphs 1 through 184 as if fully set forth herein.
`
`5.
`
`Denies each and every other remaining allegation of the verified complaint not
`
`hereinbefore specifically admitted or otherwise denied.
`
`First Affirmative Defense
`
`6.
`
`The verified complaint fails to state a cause of action against BW/IP, INC.
`
`Second Affirmative Defense
`
`7.
`
`This Court lacks jurisdiction over the subject matter of this action.
`
`Third Affirmative Defense
`
`8.
`
`The claims of plaintiffs are barred by the doctrine of laches.
`
`Fourth Affirmative Defense
`
`9.
`
`The damages allegedly sustained by the plaintiffs were caused, in whole or in part,
`
`by the negligence or other culpable conduct to the plaintiff and/or co-defendants, which conduct
`
`constituted a supervising cause of plaintiffs’ alleged injuries.
`
`
`27646971.1
`
`- 2 -
`
`
`2 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`Fifth Affirmative Defense
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`10.
`
`Insofar as the verified complaint and each cause of action considered separately
`
`allege a cause of action occurring before September 1, 1975, each such cause of action is barred
`
`by reasons of the culpable conduct attributable to plaintiffs, including contributory negligence and
`
`assumption of the risk.
`
`Sixth Affirmative Defense
`
`11.
`
`Any damages allegedly sustained by the plaintiffs were the proximate result of an
`
`unforeseen and/or unforeseeable negligent, grossly negligent, wanton, reckless, omission or
`
`conduct of intervening third parties superseding parties.
`
`Seventh Affirmative Defense
`
`12.
`
`The damages allegedly sustained by the plaintiffs were caused, in whole or in part,
`
`by the negligence or other culpable conduct of one or more persons or instrumentalities over which
`
`BW/IP, INC. had no control and with whom it had no legal relationship.
`
`Eighth Affirmative Defense
`
`13.
`
`The damages allegedly sustained by the plaintiffs were caused, in whole or in part,
`
`through the operations of nature.
`
`Ninth Affirmative Defense
`
`14.
`
`If the plaintiffs’ sustained damages as alleged, such damages occurred while
`
`plaintiff engaged in activities into which he entered, knowing the hazard, risk and damages of the
`
`activities and he assumed the risks incidental to and attendant to the activities.
`
`
`27646971.1
`
`- 3 -
`
`
`3 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`Tenth Affirmative Defense
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`15.
`
`The lawsuit was not commenced by the plaintiffs within the time prescribed by law
`
`and the plaintiffs’ claim, therefore, is barred from recovery pursuant to applicable statutes of
`
`limitations.
`
`Eleventh Affirmative Defense
`
`16.
`
`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.
`
`Twelfth Affirmative Defense
`
`17.
`
`This action cannot be maintained, as there is another action pending for the same
`
`relief.
`
`Thirteenth Affirmative Defense
`
`18.
`
`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.
`
`Fourteenth Affirmative Defense
`
`19.
`
`No acts or omissions of this defendant proximately caused any damages.
`
`Fifteenth Affirmative Defense
`
`20.
`
`Any asbestos-containing product of this answering defendant that may be present
`
`at plaintiff’s job locations were placed in any such buildings upon specification, approval or at the
`
`instruction of governmental or legislative agencies or bodies.
`
`
`27646971.1
`
`- 4 -
`
`
`4 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`Sixteenth Affirmative Defense
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`21.
`
`The damages allegedly sustained by the plaintiffs’ which allegedly arose from
`
`plaintiffs’ alleged exposure to asbestos-containing products while he was working on or about the
`
`equipment allegedly manufactured by this defendant (the “Equipment”), were caused, in whole or
`
`in part, by the improper use and operation of the Equipment, rather than any defect in the design,
`
`manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale
`
`or inspection of the Equipment by BW/IP, INC.
`
`Seventeenth Affirmative Defense
`
`22.
`
`The damages allegedly sustained by the plaintiffs’ which allegedly arose from the
`
`Equipment are caused by the alteration, misuse and/or improper maintenance of the Equipment by
`
`one or more persons or instrumentalities other than BW/IP, INC., rather than any defect in the
`
`design, manufacture, production, assemblage,
`
`installation,
`
`testing,
`
`labeling, marketing,
`
`distribution, sale or inspection of the Equipment by BW/IP, INC.
`
`Eighteenth Affirmative Defense
`
`23.
`
`This defendant is not liable for the damages allegedly sustained by plaintiffs’
`
`because plaintiff was not in privity of contract with BW/IP, INC. at any time and the Equipment
`
`was not inherently dangerous.
`
`Nineteenth Affirmative Defense
`
`24.
`
`The Equipment was not defective or dangerous at any time when defendant, BW/IP,
`
`INC. had possession or control of it.
`
`Twentieth Affirmative Defense
`
`25.
`
`All implied warranties, including the warranties of merchantability and fitness for
`
`a particular purpose, were excluded at the time of the sale of the Equipment.
`- 5 -
`
`
`
`27646971.1
`
`5 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`Twenty-First Affirmative Defense
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`26.
`
`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 Equipment.
`
`Twenty-Second Affirmative Defense
`
`27.
`
`This defendant is not liable to plaintiffs for the damages alleged in the verified
`
`complaint because such damages are excluded and not recoverable under express warranty.
`
`Twenty-Third Affirmative Defense
`
`28.
`
`The purchaser of the Equipment and all beneficiaries of any warranties, express or
`
`implied, relating to the Equipment failed to provide notice of the alleged breaches of warranty to
`
`this defendant pursuant to the applicable provision of the Uniform Commercial Code.
`
`Twenty-Fourth Affirmative Defense
`
`29.
`
`Oral warranties upon which plaintiffs allegedly relied are unavailable as violative
`
`of the provisions of the applicable Statute of Frauds.
`
`Twenty-Fifth Affirmative Defense
`
`30.
`
`To the extent that plaintiffs sustained injuries from the use of a product alleged to
`
`contain asbestos, which is denied, plaintiffs, other defendants or other parties not under the control
`
`of BW/IP, INC. 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.
`
`Twenty-Sixth Affirmative Defense
`
`31.
`
`In the event it should be proven at the time of trial that all the defendants are subject
`
`to market share liability, then BW/IP, INC.’s share of such liability would be of such a de minimis
`- 6 -
`
`
`
`27646971.1
`
`6 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`amount as to make its contribution for damages negligible, and BW/IP, INC. would be entitled to
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`contribution, either in whole or in part, from co-defendants.
`
`Twenty-Seventh Affirmative Defense
`
`32.
`
`This defendant denies that the asbestos products alleged in plaintiffs’ verified
`
`complaint are products within the meaning and scope of the Restatement of Torts Section 402A
`
`and as such the verified complaint fails to state a cause of action in strict liability.
`
`Twenty-Eighth Affirmative Defense
`
`33.
`
`BW/IP, INC. 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.
`
`Twenty-Ninth Affirmative Defense
`
`34.
`
`The plaintiffs did not directly or indirectly purchase any asbestos-containing
`
`products or materials from BW/IP, INC. and the plaintiffs’ did not either receive or rely upon any
`
`representation or warrant allegedly made by BW/IP, INC.
`
`Thirtieth Affirmative Defense
`
`35.
`
`To the extent that the plaintiffs were exposed to any product containing asbestos as
`
`a result of conduct by BW/IP, INC. which is denied, said exposure was de minimis and not a
`
`substantial contributing factor to any asbestos-related disease which the plaintiffs’ may have
`
`developed, and not actionable at law or equity.
`
`Thirty-First Affirmative Defense
`
`36.
`
`Exposure to asbestos fibers attributable to this defendant is so minimal so 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.
`
`
`27646971.1
`
`- 7 -
`
`
`7 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`Thirty-Second Affirmative Defense
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`37.
`
`Finished asbestos-containing products are not unreasonably dangerous as a matter
`
`of law.
`
`Thirty-Third Affirmative Defense
`
`38.
`
`If this answering defendant was on notice of any hazard or defect for which
`
`plaintiffs seek relief, which this answering defendant denies, plaintiffs also had such notice and
`
`are thereby barred from recovery.
`
`Thirty-Fourth Affirmative Defense
`
`39.
`
`Any damages must be reduced by the value of the benefit received by plaintiffs
`
`from the use of defendant’s products.
`
`Thirty-Fifth Affirmative Defense
`
`40.
`
`There is no justifiable issue or controversy.
`
`Thirty-Sixth Affirmative Defense
`
`41.
`
`The claims for damages have not accrued, are purely speculative, uncertain and
`
`contingent.
`
`Thirty-Seventh Affirmative Defense
`
`42.
`
`Plaintiffs’ have acted voluntarily, unnecessarily, prematurely, with no evidence of
`
`injury to anyone at any job locations.
`
`Thirty-Eighth Affirmative Defense
`
`43.
`
`None of the alleged injuries or damages was foreseeable at the time of the alleged
`
`acts or omissions set forth in plaintiffs’ verified complaint.
`
`
`27646971.1
`
`- 8 -
`
`
`8 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`Thirty-Ninth Affirmative Defense
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`44.
`
`This answering defendant was under no duty to warn purchasers, those who
`
`performed work, or those under their control who were in a better position to warn; if warning was
`
`required, their failure to do so was a superseding proximate cause of injury.
`
`Fortieth Affirmative Defense
`
`45.
`
`Plaintiffs were warned of risk of exposure to use of asbestos-containing materials.
`
`Forty-First Affirmative Defense
`
`46.
`
`Plaintiff’s claims are barred as a matter of public policies, since social utility and
`
`benefit of asbestos-containing products outweighed the risk.
`
`Forty-Second Affirmative Defense
`
`47.
`
`To the extent that plaintiffs seek to maintain a claim for relief on behalf of any
`
`decedent, said plaintiffs lack capacity and/or standing to maintain such claim for relief against
`
`BW/IP, INC.
`
`Forty-Third Affirmative Defense
`
`48.
`
`Plaintiffs’ claims are barred because of plaintiffs’ failure to join necessary and
`
`indispensable parties.
`
`Forty-Fourth Affirmative Defense
`
`49.
`
`Plaintiffs may not bring this action as they have failed to exhaust all of their
`
`administrative remedies.
`
`Forty-Fifth Affirmative Defense
`
`50.
`
`Plaintiffs’ failed to mitigate or otherwise act to lessen or reduce the injuries alleged
`
`in the verified complaint.
`
`
`27646971.1
`
`- 9 -
`
`
`9 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`Forty-Sixth Affirmative Defense
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`51.
`
`Plaintiffs’ cause of action for exemplary or punitive damages is barred because such
`
`damages are not recoverable or warranted in this action.
`
`Forty-Seventh Affirmative Defense
`
`52.
`
`Plaintiffs’ demands for punitive damages are barred by the due process clauses of
`
`the Fourteenth Amendment to the United States Constitution and the New York State Constitution.
`
`Forty-Eighth Affirmative Defense
`
`53.
`
`Plaintiffs’ demands for punitive damages are barred by the proscription of the
`
`Eighth Amendment to the United States Constitution, as applied to the states through the
`
`Fourteenth Amendment, and Article I, section 5 of the New York State Constitution prohibiting
`
`the imposition of excessive fines.
`
`Forty-Ninth Affirmative Defense
`
`54.
`
`Plaintiffs’ demands for punitive damages are barred by the “double jeopardy”
`
`clause of the Fifth Amendment to the United States Constitution, as applied to the states through
`
`the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
`
`Fiftieth Affirmative Defense
`
`55.
`
`If plaintiffs sustained injuries in the manner alleged, all of which has been denied
`
`by the defendant, the liability of BW/IP, INC., if any, shall be limited in accordance with Article
`
`16 of the Civil Practice Law and Rules.
`
`Fifty-First Affirmative Defense
`
`56.
`
`At all times relevant to this litigation, this defendant complied with all applicable
`
`laws, regulations and standards.
`
`
`27646971.1
`
`- 10 -
`
`
`10 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`Fifty-Second Affirmative Defense
`
`57.
`
`Relief is barred by virtue of the doctrine of estoppel and waiver.
`
`Fifty-Third Affirmative Defense
`
`58.
`
`That at all times relevant to this litigation, the agents, servants, and/or employees
`
`of this defendant utilized proper methods in the conduct of its operations, in conformity with the
`
`available knowledge and research of the scientific and industrial communities.
`
`Fifty-Fourth Affirmative Defense
`
`59.
`
`Plaintiffs contributed to his illness, either in whole or in part, by exposure to or the
`
`use of tobacco products and/or other substances, products, medications or drugs.
`
`Fifty-Fifth Affirmative Defense
`
`60.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of arbitration and award.
`
`Fifty-Sixth Affirmative Defense
`
`61.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of collateral estoppel.
`
`Fifty-Seventh Affirmative Defense
`
`62.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of discharge in bankruptcy.
`
`Fifty-Eighth Affirmative Defense
`
`63.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of payment.
`
`
`27646971.1
`
`- 11 -
`
`
`11 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`Fifty-Ninth Affirmative Defense
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`64.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of release.
`
`Sixtieth Affirmative Defense
`
`65.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of the doctrine of res judicata.
`
`Sixty-First Affirmative Defense
`
`66.
`
`All defenses which have been or will be asserted by other defendants and/or any
`
`third-party defendants in this action are adopted and incorporated by reference as if fully set forth
`
`at length herein as a defense to plaintiffs’ verified complaint. In addition, BW/IP, INC. will rely
`
`upon any and all other further defenses which become available or appear during discovery
`
`proceedings in this action and hereby specifically reserves the right to amend its verified answer
`
`for the purposes of asserting any such additional defenses.
`
`Sixty-Second Affirmative Defense
`
`67.
`
`To the extent that any plaintiff herein brings suit in a representative capacity, such
`
`plaintiff has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New
`
`York.
`
`Sixty-Third Affirmative Defense
`
`68.
`
`Any recovery by the plaintiffs herein must be reduced by collateral source
`
`payments pursuant to CPLR §4545.
`
`Sixty-Fourth Affirmative Defense
`
`69.
`
`That in the event there has been a settlement between plaintiffs and any joint or co-
`
`tortfeasor, or person, company or entity liable or claimed to be liable, including bankrupt persons,
`- 12 -
`
`
`
`27646971.1
`
`12 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`companies and entities, then defendant, BW/IP, Inc., hereby pleads and seeks the full benefit of
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`§15-108 of the General Obligations Law that plaintiffs’ claim against defendant, BW/IP, Inc., be
`
`reduced to the fullest extent permitted by §15-108 of the General Obligations Law.
`
`Sixty-Fifth Affirmative Defense
`
`That the injuries and/or illnesses, if any, sustained by plaintiffs’ were caused or
`
`70.
`
`contributed to by fault, neglect and want of care on the part of plaintiff or on the part of others for
`
`whose acts or omissions or breach of legal duty, BW/IP is not liable.
`
`Sixty-Sixth Affirmative Defense
`
`To the extent that plaintiffs alleged exposure to BW/IP, Inc. products occurred
`
`71.
`
`outside of the State of New York and insofar as BW/IP, Inc. is neither incorporated, nor maintains
`
`its principal place of business in New York, BW/IP, Inc. is not subject to the jurisdiction of New
`
`York State Courts.
`
`Sixty-Seventh Affirmative Defense
`
`72.
`
`If plaintiffs allege exposure to asbestos from product associated with this answering
`
`defendant then the asbestos was manufactured and supplied by others and this defendant has no
`
`duty to warn for such asbestos and has no liability for any damages caused by such asbestos.
`
`CROSS-CLAIM AGAINST CO-DEFENDANTS
`
`73.
`
`If plaintiffs were caused to sustain damages at the time and place set forth in
`
`plaintiffs’ verified complaint through any carelessness, recklessness and/or negligence other than
`
`that of plaintiff himself, including, but not limited to, the manufacture and distribution of the
`
`asbestos product, breaches of warranty, either express or implied, and in strict liability in tort, these
`
`damages will have been caused and brought about by reason of the carelessness, recklessness
`
`and/or negligence of the co-defendants not represented by this verified answer.
`
`
`27646971.1
`
`- 13 -
`
`
`13 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/30/2024
`
`74.
`
`If the plaintiffs should recover a judgment against this answering defendant, by
`
`operation of law or otherwise, it will be entitled to judgment, contribution and/or indemnity over
`
`and against the co-defendants not represented by this verified answer, their agents, servants and/or
`
`employees, by reason of their carelessness, recklessness and/or negligence for the amount of any
`
`such recovery, or a portion thereof, in accordance with the principals of law regarding
`
`apportionment of fault and damages, along with costs, disbursements and reasonable expenses of
`
`the investigation and defense of this action, including reasonable attorneys’ fees.
`
`WHEREFORE, Defendant, BW/IP and Its Wholly-Owned Subsidiaries, demands
`
`judgment dismissing the verified complaint; diminishing plaintiffs’ damages in the proportion
`
`which the culpable conduct attributed to the plaintiffs’ bears to the culpable conduct which may
`
`have caused such damages; apportioning the relative culpability between the defendants and
`
`between liable entities pursuant to Article 16 of the CPLR and Article 14 of the CPLR and
`
`awarding the costs and disbursements of this action together with such other and further relief as
`
`to this court may seem just and proper.
`
`DATED:
`
`
`
`Buffalo, New York
`January 129 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`BW/IP, INC. and Its Wholly-Owned
`Subsidiaries, Defendant
`
`
`
`
`By:
`Carol G. Snider, Esq.
`BARCLAY DAMON LLP
`The Avant Building - Suite 1200
`200 Delaware Avenue
`Buffalo, New York 14202-2150
`(716) 856-5500
`
`
`
`TO:
`
`
`
`
`
`
`Joseph W. Belluck, Esq.
`BELLUCK & FOX, LLP
`Attorneys for Plaintiffs
`546 Fifth Avenue, 5th Floor
`New York, New York 10036
`(212) 681-1575
`
`
`27646971.1
`
`
`
`- 14 -
`
`
`14 of 15
`
`
`
`FILED: ERIE COUNTY CLERK 01/30/2024 07:32 AM
`NYSCEF DOC. NO. 52
`
`INDEX NO. 814633/2023
`
`I
`
`RECEIVED NYSCEF: 01/30/2024
`
`VERIFICATION
`
`SS.
`
`) ) )
`
`STATE OF NEW YORK
`
`COIINTY OF ERIE
`
`CAROL G. SNIDER, ESQ., being dul5, swom herein says:
`
`1.
`
`That she is one of the attorneys for the defendant, BWIP, INC. and Its Wholly-
`
`Owned subsidiaries. in this action; that she has read the verif-red allsw'er to the verified cornplaint
`
`and knows the contents thereof; that the same is true to her own knowledge except as to the matters
`
`therein stated to be alleged upon information and belief and as to those matters, she believes them
`
`to be true.
`
`2.
`
`That the reason this verification is made by the deponent and not by defendant,
`
`BWIP, INC. and Its Wholly-Owned Subsidiaries, is that the answering defendant is outside the
`
`County of Erie where the deponent maintains her office.
`
`3.
`
`That the sources of deponent's knowledge and the grounds for her belief are from
`
`the correspondence with said defendant, BW/IP, INC. and Its Wholly-Owned Subsidiaries, and
`
`correspondence and conversations with the representatives of said defendant, and from reports of
`
`investigation of the said defendant's representatives, certain of which the correspondence and
`
`reports are now in deponent's possession.
`
`G. Snider, Esq.
`
`Subscribed and sworn to before
`me this 29th day of January,2024
`
`Notary Public
`
`27646977.7
`
`PATRICIADEEB
`Notary Public, State of New York
`Qual. in Erie Co., No. 01DE4838ssCt (
`My Commlssion ExpiresAug.3l, 205s
`
`- 15 -
`
`15 of 15
`
`