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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`-------------------------------------------------------------------X
`TROY SHANE SMITH and ALLYSON JANE SMITH,
`
`
`
`Index No.: 814633/2023
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`Plaintiff(s),
`
`-against-
`
`84 LUMBER COMPANY, et al.,
`
`Defendant(s).
`--------------------------------------------------------------------X
`
`ANSWER OF HANSEN
`PERMANENTE CEMENT, INC.
`TO VERIFIED COMPLAINT
`
`
`
`Defendant, Hansen Permanente Cement, Inc. (“Hansen Cement”), by its attorneys
`
`MARSHALL DENNEHEY P.C., as and for its Answer to the Verified Complaint of the Law Offices of
`
`Belluck & Fox, LLP, alleges as follows:
`
`THE PARTIES
`
`1.
`
`Defendant, Hansen Cement, denies knowledge and information sufficient to form a belief as
`
`to the truth of the allegations contained in paragraphs "1" through “3" of the Verified
`
`Complaint.
`
`2.
`
`Defendant, Hansen Cement, denies knowledge and information sufficient to form a belief as
`
`to the truth of the allegations contained in paragraph "4” of the Verified Complaint, which
`
`pertain to the other defendants.
`
`3.
`
`Defendant, Hansen Cement, denies each and every allegation contained in paragraph “5” of
`
`the Verified Complaint, except admits that it has transacted business in New York State, and
`
`denies knowledge and information sufficient to form a belief as to the truth of the allegations
`
`contained in the Verified Complaint which pertain to the other defendants and respectfully
`
`refers all questions of law to the Honorable Court at the time of trial.
`
`4.
`
`Defendant, Hansen Cement, denies knowledge and information sufficient to form a belief as
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`to the truth of the allegations contained in paragraphs "6" through “37” of the Verified
`
`Complaint, which pertain to the other defendants.
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`5.
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`Defendant, Hansen Cement, denies each and every allegation contained in paragraph “38” of
`
`the Verified Complaint, except admits that it has transacted business in New York State, and
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`respectfully refers all questions of law to the Honorable Court at the time of trial.
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`6.
`
`Defendant, Hansen Cement, denies knowledge and information sufficient to form a belief as
`
`to the truth of the allegations contained in paragraphs “39" through “61" of the Verified
`
`Complaint, which pertain to the other defendants.
`
`7.
`
`Defendant, Hansen Cement, denies each and every allegation contained in paragraphs “62”
`
`through “69” of the Verified Complaint, except admits that it has transacted business in New
`
`York State, and denies knowledge and information sufficient to form a belief as to the truth of
`
`the allegations contained in the Verified Complaint which pertain to the other defendants and
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`respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE FIRST CAUSE OF ACTION
`
`8.
`
`In response to paragraph “70” of the Verified Complaint, defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "69” of the Verified Complaint as though fully set forth at
`
`length herein.
`
`9.
`
`Denies each and every allegation contained in paragraphs "71" through "78” of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
`
`of the allegations contained in the Verified Complaint which pertain to the other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE SECOND CAUSE OF ACTION
`
`10.
`
`In response to paragraph “79” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations in
`
`paragraphs "1" through "78" of the Verified Complaint as though fully set forth at length
`
`herein.
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`11.
`
`Denies each and every allegation contained in paragraphs “80” through "83" of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
`
`of the allegations contained in the Verified Complaint which pertain to the other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE THIRD CAUSE OF ACTION
`
`12.
`
`In response to paragraph “84” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "83" of the Verified Complaint as though fully set forth at
`
`length herein.
`
`13.
`
`Denies each and every allegation contained in paragraphs "85" through “93” of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
`
`of the allegations contained in the Verified Complaint which pertain to the other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE FOURTH CAUSE OF ACTION
`
`14.
`
`In response to paragraph “94” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "93" of the Verified Complaint as though fully set forth at
`
`length herein.
`
`15.
`
`Denies each and every allegation contained in paragraphs “95” and “96” of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
`
`of the allegations contained in the Verified Complaint which pertain to the other defendants
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
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`16.
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`Denies knowledge and information sufficient to form a belief as to the truth of the allegations
`
`contained in paragraph "97" of the Verified Complaint.
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`~ 3 ~
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`17.
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`Denies each and every allegation contained in paragraphs “98” through “110” of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
`
`of the allegations contained in the Verified Complaint which pertain to the other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`18.
`
`Denies knowledge and information sufficient to form a belief as to the truth of the allegations
`
`contained in paragraph "111" of the Verified Complaint.
`
`19.
`
`Denies each and every allegation contained in paragraph “112” of the Verified Complaint,
`
`except denies knowledge and information sufficient to form a belief as to the truth of the
`
`allegations contained in the Verified Complaint which pertain to the other defendants, and
`
`respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE FIFTH CAUSE OF ACTION
`
`20.
`
`In response to paragraph “113” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "112" of the Verified Complaint as though fully set forth
`
`at length herein.
`
`21.
`
`Denies knowledge and information sufficient to form a belief as to the truth of the allegations
`
`contained in paragraphs "114” through “120” of the Verified Complaint, which pertain to the
`
`other defendants.
`
`AS TO THE SIXTH CAUSE OF ACTION
`
`22.
`
`In response to paragraph “121” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "120" of the Verified Complaint as though fully set forth
`
`at length herein.
`
`23.
`
`Denies each and every allegation contained in paragraphs “122” through “130” of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
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`~ 4 ~
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`of the allegations contained in the Verified Complaint which pertain to the other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
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`24.
`
`Denies knowledge and information sufficient to form a belief as to the truth of the allegations
`
`contained in paragraph "131” of the Verified Complaint.
`
`25.
`
`Denies each and every allegation contained in paragraphs “132” through “136” of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
`
`of the allegations contained in the Verified Complaint which pertain to the other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE SEVENTH CAUSE OF ACTION
`
`26.
`
`In response to paragraph “137” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "136" of the Verified Complaint as though fully set forth
`
`at length herein.
`
`27.
`
`Denies having knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraph “138” of the Verified Complaint.
`
`28.
`
`Denies each and every allegation contained in paragraphs “139” through “144” of the Verified
`
`Complaint, except denies having knowledge or information sufficient to form a belief as to the
`
`truth of the allegations contained in the Verified Complaint which pertain to other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`29.
`
`Denies having knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraphs “145” and “146” of the Verified Complaint.
`
`30.
`
`Denies each and every allegation contained in paragraphs “147” through “150” of the Verified
`
`Complaint, except denies having knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in the Verified Complaint which pertain to other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
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`~ 5 ~
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`AS TO THE EIGHTH CAUSE OF ACTION
`
`31.
`
`In response to paragraph “151” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "150" of the Verified Complaint as though fully set forth
`
`at length herein.
`
`32.
`
`Denies each and every allegation contained in paragraphs “152” through “166” of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
`
`of the allegations contained in the Verified Complaint which pertain to the other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE NINTH CAUSE OF ACTION
`
`33.
`
`In response to paragraph “167” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "166" of the Verified Complaint as though fully set forth
`
`at length herein.
`
`34.
`
`Denies each and every allegation contained in paragraphs “168” through "179" of the Verified
`
`Complaint, except denies knowledge and information sufficient to form a belief as to the truth
`
`of the allegations contained in the Verified Complaint which pertain to the other defendants,
`
`and respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE TENTH CAUSE OF ACTION
`
`35.
`
`In response to paragraph “180” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "179" of the Verified Complaint as though fully set forth
`
`at length herein.
`
`36.
`
`Denies each and every allegation contained in paragraph “181” of the Verified Complaint,
`
`except denies knowledge and information sufficient to form a belief as to the truth of the
`
`~ 6 ~
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`allegations contained in the Verified Complaint which pertain to the other defendants, and
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`respectfully refers all questions of law to the Honorable Court at the time of trial.
`
`AS TO THE ELEVENTH CAUSE OF ACTION
`
`37.
`
`In response to paragraph "182” of the Verified Complaint, Defendant, Hansen Cement,
`
`repeats, reiterates and realleges each and every response applicable to the allegations
`
`contained in paragraphs "1" through "181" of the Verified Complaint as though fully set forth
`
`at length herein.
`
`38.
`
`Denies knowledge and information sufficient to form a belief as to the truth of the allegations
`
`contained in paragraphs "183" and “184” of the Verified Complaint.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`39.
`
`Any damages which may have been sustained by plaintiffs were caused or contributed to by
`
`reason of the negligence of the plaintiffs.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`40.
`
`Any damages which may have been sustained by plaintiffs were contributed to in whole or in
`
`part by the culpable conduct of the plaintiffs.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`41.
`
`Insofar as the complaints, and each cause of action considered separately, alleges a cause
`
`of action accruing on or after September 1, 1975 to recover damages for personal injuries,
`
`the amount of damages recoverable thereon must be diminished by reason of the culpable
`
`conduct attributable to each plaintiff and/or plaintiff's decedent, including contributory
`
`negligence and assumption of risk, in the proportion which the culpable conduct attributable
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`to plaintiff and/or plaintiff's decedent bears to the culpable conduct which caused the
`
`damages.
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`~ 7 ~
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`42.
`
`Insofar as the complaint and each cause of action considered separately, alleges a cause of
`
`action accruing before September 1, 1975, each such cause of action is barred by reason of
`
`the culpable conduct attributable to each plaintiff and/or plaintiff's decedent, including
`
`contributory negligence and assumption of the risk.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`43.
`
`The lawsuit was not commenced by the plaintiffs within the time prescribed by law and the
`
`plaintiffs, therefore, are barred from recovery pursuant to applicable statutes of limitations.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`44.
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`The action is barred by virtue of the four year Statute of Limitations prescribed by Section 2-
`
`725 of the Uniform Commercial Code; by virtue of failure of plaintiffs to give requisite notice
`
`to answering defendant under Article 2 of the Uniform Commercial Code, insofar as cause of
`
`action is alleged for breach of warranty or warranties, express or implied, as well as by virtue
`
`of the absence of privity or of any contractual relationship between the plaintiffs and this
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`answering defendant.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`45.
`
`If the parties sustained damages as alleged, such damages occurred while they engaged in
`
`an activity into which they entered, knowing the hazard, risk and danger of the activity and
`
`they assumed the risks incidental to and attending the activity.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`46.
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`That to the extent plaintiffs have failed and neglected to maintain this action in a swift, diligent
`
`and timely fashion, plaintiffs’ claims are barred by laches.
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`~ 8 ~
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`47.
`
`This action cannot be maintained as there is a prior action pending for the same relief.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`48.
`
`There is no jurisdiction over this answering defendant as the Summons and Complaint were
`
`improperly served.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`49.
`
`Plaintiffs’ claims are time barred in that Section 214-c of the New York CPLR is
`
`unconstitutional.
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`50.
`
`This action cannot be maintained on behalf of the plaintiffs as the only available relief to
`
`plaintiff is limited to recovery under Workers Compensation Law.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`51.
`
`That the injuries alleged, all of which are denied by this answering defendant, were caused
`
`by the intervening, interceding and superseding acts of third parties not under the control of
`
`defendant.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`52.
`
`To the extent that any plaintiff was injured as alleged in the Complaint, said injury was
`
`proximately caused by the negligence, breach of warranty and/or strict liability of persons
`
`other than Hansen Cement.
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`~ 9 ~
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`53.
`
`This answering defendant used proper methods of handling the products complained of in
`
`conformity with the available knowledge, state of the art, and research of the scientific and
`
`industrial communities.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`54.
`
`If it should be proven at the time of trial that any of this answering defendant's products were
`
`furnished to plaintiffs' employers or to the United States Government and that plaintiffs came
`
`into contact with these products, which is specifically denied, then any such product was
`
`furnished in strict conformity to the conditions specified or the specifications furnished by the
`
`United States Government, other third-parties, and/or Plaintiffs’ employers.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`55.
`
`To the extent that plaintiff sustained injuries from the use of a product alleged to contain
`
`asbestos, which is denied, that plaintiffs or other parties not under the control of this
`
`answering defendant misused, abused, misapplied and otherwise mishandled the product.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`56. Oral warranties upon which plaintiff allegedly relied are unavailable as violative of the
`
`provisions of the applicable Statute of Frauds.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`
`57.
`
`In the event it should be proven at the time of trial that all the defendants are subject to
`
`market share liability, then this answering defendant's share of such liability would be of such
`
`a de minimis amount as to make its contribution for damages negligible, and this answering
`
`defendant would be entitled to contribution, either in whole or in part, from the co-defendants.
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`~ 10 ~
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
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`58.
`
`Defendant denies that 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.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`59.
`
`The Complaint and each and every cause of action alleged therein fails to state a cause of
`
`action upon which relief can be granted.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`60.
`
`The Court does not have jurisdiction over the person of the answering defendant.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`
`61.
`
`This answering defendant is entitled to the limitation of liability under Article 16 CPLR.
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`62.
`
`The Court lacks jurisdiction over the subject matter of this action.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`63.
`
`Hansen Cement 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-SIXTH AFFIRMATIVE DEFENSE
`
`64.
`
`No plaintiff directly or indirectly purchased any asbestos containing products or materials
`
`from Hansen Cement and no plaintiff either received or relied upon any representation or
`
`warranty allegedly made by Hansen Cement.
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`~ 11 ~
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`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`65.
`
`To the extent that any plaintiffs seek to maintain a claim for relief on behalf of any decedent,
`
`said plaintiffs lacks capacity and/or standing to maintain such claim for relief against Hansen
`
`Cement.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`66.
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and indispensable
`
`parties.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`
`67.
`
`Plaintiffs may not bring this action as they have failed to exhaust all of their administrative
`
`remedies.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`
`68.
`
`In the event that any breach of warranty is proven, plaintiffs failed to give proper and prompt
`
`notice of any such breach of warranty to Hansen Cement.
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`69.
`
`Upon information and belief, plaintiffs failed to mitigate or otherwise act to lessen or reduce
`
`the injuries and disabilities alleged in the Complaint.
`
`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`
`70.
`
`Plaintiffs’ cause of action for exemplary or punitive damages is barred because such
`
`damages are not recoverable or warranted in this action.
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`~ 12 ~
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`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
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`71.
`
`Plaintiffs’ demand for punitive damages is 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 THIRTY-FOURTH AFFIRMATIVE DEFENSE
`
`72.
`
`Plaintiffs’ demand for punitive damages is barred by the proscription of the Eighth
`
`Amendment to the United States Constitution, as applied to the states through the Fourteenth
`
`Amendment, Article I, Section 5 of the New York State Constitution prohibiting the imposition
`
`of excessive fines.
`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`
`73.
`
`Plaintiffs’ demand for punitive damages is 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 THIRTY-SIXTH AFFIRMATIVE DEFENSE
`
`74.
`
`Any purported revival of Plaintiffs’ claims under 1986 New York laws, Ch. 682, 84, would be
`
`unconstitutional as applied to each of Plaintiffs’ claims against defendant under the "ex post
`
`facto" and commerce clauses of the United States Constitution, the due process and equal
`
`protection clauses of the Fourteenth Amendment to the United States Constitution, and the
`
`New York State Constitution.
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`
`75.
`
`Plaintiffs’ demand for punitive damages is barred by the "ex post facto" clause of the United
`
`States Constitution.
`
`~ 13 ~
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`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`
`76.
`
`Plaintiffs are estopped from asserting the causes of action alleged in the Complaint.
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`
`77.
`
`Plaintiffs have waived the causes of action alleged in the Complaint.
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`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
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`78.
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`Plaintiff lacks the requisite capacity, standing, and authority to bring the within action as they
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`are not real parties in interest.
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`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
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`79.
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`Hansen Cement denies that plaintiffs have any exposure to any asbestos product
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`manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold
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`and/or otherwise placed in the stream of commerce by it, and more particularly deny upon
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`information and belief that they manufactured, supplied, developed, tested, fashioned,
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`packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce
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`any asbestos product at the times and upon the dates alleged in the Complaint herein.
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`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
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`80.
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`Plaintiffs contributed to their illness by the use, either in whole or in part, of other substances,
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`products, medications, tobacco or drugs.
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`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`
`81.
`
`The injuries allegedly suffered by the plaintiffs, if any, which injuries are specifically denied by
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`Hansen Cement, were the result of the culpable conduct or fault of other persons for whose
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`conduct Hansen Cement is not legally responsible, and the damages recovered by the
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`plaintiffs, if any, should be diminished or reduced in the proportion to which said culpable
`
`~ 14 ~
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/30/2024
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`conduct bears upon the culpable conduct which caused the damages. Any liability on the
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`part of Hansen Cement, which liability is specifically denied, is fifty percent or less of the
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`liability of all persons who are the cause of the alleged injuries, if any, and the liability of
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`Hansen Cement for non-economic loss does not exceed Hansen Cement's equitable share
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`determined in accordance with the relative culpability of each person causing or contributing
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`to the total liability for non-economic loss pursuant to CPLR Sections 1601 and 1603.
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`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`
`82.
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`The within action cannot be maintained as there is another action pending between the same
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`or similar parties for the same cause of action in another court of a state or the United States.
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`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`
`83.
`
`Upon information and belief, some or all of the causes of action may not be maintained
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`because of arbitration and award.
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`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`
`84.
`
`Upon information and belief, some or all of causes of action may not be maintained because
`
`of collateral estoppel.
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`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`
`85.
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`Upon information and belief, some or all of causes of action may not be maintained because
`
`of discharge in bankruptcy.
`
`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
`
`86.
`
`Upon information and belief, some or all of causes of action may not be maintained because
`
`of infancy or some other disability of the plaintiffs.
`
`~ 15 ~
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/30/2024
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`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
`
`87.
`
`Upon information and belief, some or all of causes of action may not be maintained because
`
`of payment.
`
`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
`
`88.
`
`Upon information and belief, some or all of causes of action may not be maintained because
`
`of release.
`
`AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
`
`89.
`
`Upon information and belief, some or all of causes of action may not be maintained because
`
`of res judicata.
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`AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
`
`90.
`
`All defenses which have been or will be asserted by other defendants in this action are
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`adopted and incorporated by reference as if fully set forth at length herein as defenses to
`
`Plaintiffs’ complaints. In addition, Hansen Cement will rely upon any and all other further
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`defenses which become available or appear during discovery proceedings in this action and
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`hereby specifically reserves the right to amend its answer for the purposes of asserting any
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`such additional affirmative defenses.
`
`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
`
`91.
`
`To the extent that any plaintiff was exposed to any product allegedly manufactured by
`
`Hansen Cement, which is denied, said exposure was de minimis and not a substantial
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`contributing factor to any asbestos-related disease which such plaintiff may have developed,
`
`thus requiring dismissal of the Complaint against Hansen Cement.
`
`~ 16 ~
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`FILED: ERIE COUNTY CLERK 01/30/2024 05:59 PM
`NYSCEF DOC. NO. 53
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/30/2024
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`AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND
`FOR A CROSS-CLAIM AGAINST ALL OTHER DEFENDANTS,
`ANSWERING DEFENDANT ALLEGES:
`
`92.
`
`That if plaintiffs were caused to sustain injuries or damages at the time and place set forth in
`
`Plaintiffs’ Complaint through any carelessness, recklessness and negligence other than their
`
`own, then said injuries and damages arose in whole or in part from the negligence, breach of
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`warranty, strict liability in tort and breach of contract of co-defendants, and if any judgment is
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`recovered herein by plaintiffs against answering defendant, said answering defendant will be
`
`damaged thereby and will be entitled to full or partial indemnity or contribution on the basis of
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`proportionate responsibility in negligence, breach of warranty, strict liability in tort and breach
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`of contract from the co-defendants.
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`WHEREFORE, answering defendant demands judgment as follows:
`
`(a)
`
`(b)
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`Dismissing the Plaintiffs’ Complaint;
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`Awarding judgment against co-defendants for the full amount of any verdict and
`
`judgment or for a proportionate share thereof that plaintiff may recover against
`
`answering defendant; and
`
`(c)
`
`For such other and further relief as this Court may deem just and proper.
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`Dated: Melville, New York
`
`January 30, 2024
`
`
`
`Yours, etc.
`
`MARSHALL DENNEHEY P.C.
`
`By: Anna M. DiLonardo
`
`Anna M. DiLonardo
`
`Attorneys for Defendant
`Hansen Permanente Cement, Inc.
`175 Pinelawn Road, Suite 250
`Melville, New York 11747
`(631) 232-6130
`
`~ 17 ~
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`17 of 19
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`FILED: ERIE COUNTY CLERK 01/30/2024 05:59 PM
`NYSCEF DOC. NO. 53
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/30/2024
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`TO: LAW OFFICES OF BELLUCK & FOX, LLP
`Attorneys for Plaintiffs
`
`ALL DEFENSE COUNSEL OF RECORD
`Via the Court's ECF System
`
`~ 18 ~
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`FILED: ERIE COUNTY CLERK 01/30/2024 05:59 PM
`NYSCEF DOC. NO. 53
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/30/2024
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`ATTORNEY VERIFICATION
`
`ANNA M. DILONARDO, the undersigned, an attorney duly admitted to practice law before all
`
`the Courts of the State of New York, a member of the firm, MARSHALL DENNEHEY P.C., attorneys
`
`for the defendant, HANSEN PERMANENTE CEMENT COMPANY, INC., in the within action states
`
`that she has read the contents of the foregoing Answer of Hansen Permanente Cement, Inc. to
`
`Verified Complaint and that the same is true to her knowledge except as to the matters, stated
`
`upon information and belief, she believes them to be true. Deponent further says that the grounds
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`for her belief, as to all matters therein not stated upon her own knowledge, are investigations and
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`reports which have been made concerning the subject matter of the within action, which are in
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`possession of the aforementioned Attorneys-of-Record and with which Deponent is familiar.
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`The reason this Verification is made by Deponent, instead of by the aforementioned
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`Defendant, is because said Defendant is not within the County of Suffolk where Deponents and the
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`aforementioned Attorneys-of-Record have their office. The undersigned affirms that the foregoing
`
`statements are true, under penalties of perjury.
`
`Dated: Melville, New York
`January 30, 2024
`
`Anna M. DiLonardo
`ANNA M. DILONARDO
`
`~ 19 ~
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`19 of 19
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`