FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`_______________________________________
`
`
`
`
`TROY SHANE SMITH and ALLYSON
`JANE SMITH,
`
`
`Plaintiff(s),
`
`-against-
`
`84 LUMBER COMPANY, et al.
`
` Defendants.
`
`
`
`
`
`
`INDEX NO. 814633-2023
`
`VERIFIED ANSWER OF DEFENDANT,
`CLARK-RELIANCE CORPORATION,
`INDIVIDUALLY TO PLAINTIFFS’
`COMPLAINT
`
`
`
`
`
`Defendant, CLARK-RELIANCE CORPORATION,
`
`INDIVIDUALLY
`
`(“Clark-
`
`RELIANCE” or “Defendant”), by its attorneys, O’TOOLE SCRIVO, LLC, for its answer to
`
`Plaintiffs’ Verified Complaint (“Complaint”), states as follows:
`
`ANSWER TO VERIFIED COMPLAINT
`
` 1.
`
`
`
`Defendant makes no answer to Paragraph 1 of Plaintiffs’ Complaint since this
`
`Paragraph makes no factual or legal allegations against this Defendant.
`
`
`
`2.
`
`proofs.
`
`
`
`3.
`
`
`
`
`
`Defendant denies the allegations in Paragraph 2 and leaves Plaintiffs to their
`
`Defendant makes no answer to Paragraph 3 since this Paragraph makes no
`
`factual or legal allegations against this Defendant.
`
`
`
`4. to 5.
`
`Defendant denies the allegations in Paragraphs 4 through 5 of Plaintiffs’
`
`Complaint and leaves Plaintiffs to their proofs.
`
`
`
`6. to 17.
`
`Defendant makes no answer to Paragraphs 6 through 17 since these
`
`Paragraphs make no factual or legal allegations against this Defendant.
`
`
`
`18.
`
`
`
`Defendant denies the allegations in Paragraph 18 and leaves Plaintiffs to their
`
`1 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`proofs.
`
`
`
`19. to 61.
`
`Defendant makes no answer to the allegations set forth in Paragraphs 19
`
`through 61 of Plaintiffs’ Complaint since the allegations in those Paragraphs make no factual or
`
`legal allegations against this Defendant.
`
`
`
`62. to 69.
`
`Defendant denies the allegations in Paragraphs 62 through 69 of Plaintiffs’
`
`Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`
`
` 70.
`
`
`
`
`
`AS AND FOR A FIRST CAUSE OF ACTION
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 69 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`71. to 78.
`
` Defendant denies the allegations contained in Paragraphs 71 through 78 of
`
`Plaintiffs’ Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`
`
`AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
` 79.
`
`
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 78 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`80. to 83. Defendant denies the allegations contained in paragraphs 80 through 83 of
`
`Plaintiffs’ Verified Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
`84.
`
`
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 83 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`85. to 93. Defendant denies the allegations contained in paragraphs 85 through 93 of
`
`Plaintiffs’ Verified Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`
`
`
`2
`
`2 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`
`
`
`
`AS AND FOR A FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
`
`
` 94.
`
` Defendant repeats and reiterates its answers to Paragraphs 1 through 93 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`95. to 112. Defendant denies the allegations contained in paragraphs 95 through 112 of
`
`Plaintiffs’ Verified Complaint and leaves Plaintiffs to their proofs.
`
`AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
`METROPOLITAN LIFE INSURANCE COMPANY
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 112 of
`
`
`
`113.
`
`
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`114. to 120.
`
` Defendant makes no answer to Paragraph 114 through 120 of Plaintiffs’
`
`Complaint since this Paragraph makes no factual or legal allegations against this defendant.
`
`
`
`
`
`
`
`AS AND FOR A SIXTH CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
`121.
`
`
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 120 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`122. to 136. Defendant denies the allegations contained in Paragraphs 122 through 136
`
`of Plaintiffs’ Complaint and leaves Plaintiffs to their proofs.
`
`
`
`AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
`
`
` 137.
`
`
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 136 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`138. to 150. Defendant denies the allegations contained in paragraphs 138 through 150
`
`of Plaintiffs’ Verified Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`
`
`
`AS AND FOR A EIGHTH CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
` 151.
`
`
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 150 of
`
`3
`
`3 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`152. to 166. Defendant denies the allegations contained in paragraphs 152 through 166
`
`of Plaintiffs’ Verified Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`AS AND FOR A NINTH CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
` 167.
`
`
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 166 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`168. to 179. Defendant denies the allegations contained in paragraphs 168 through 179
`
`of Plaintiffs’ Verified Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`AS AND FOR A TENTH CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
` 180.
`
`
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 179 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`181.
`
` Defendant denies the allegations contained in paragraph 181 of Plaintiffs’
`
`Verified Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`AS AND FOR A ELEVENTH CAUSE OF ACTION AGAINST ALL DEFENDANTS
`
` 182.
`
`
`
`Defendant repeats and reiterates its answers to Paragraphs 1 through 181 of
`
`Plaintiffs’ Verified Complaint and incorporates same as if set forth at length herein.
`
`
`
`183. to 184. Defendant denies the allegations contained in paragraphs 183 through 184
`
`of Plaintiffs’ Verified Complaint and leaves Plaintiffs to their proofs.
`
`
`
`
`
`
`
`
`
`WHEREFORE, Defendant demands judgment against Plaintiffs, for:
`
` a) Dismissal, with prejudice, of the Plaintiffs’ Complaint;
`
` b) An award of costs of court and counsel fees;
`
` c) Such other relief as may be equitable and just.
`
`
`
`
`
`
`4
`
`4 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`AFFIRMATIVE DEFENSES
`
`1.
`
`The Complaint and each and every allegation considered separately fail to state any
`
`cause of action against this Defendant upon which relief can be granted.
`
`2.
`
`3.
`
`All claims are time-barred by the applicable Statute of Limitations.
`
`All causes of action have not been maintained in a timely fashion and Plaintiff has
`
`neglected the same and should be barred by the doctrine of laches.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`The court lacks jurisdiction over the subject matter of this dispute.
`
`The court lacks general, personal jurisdiction over this Defendant.
`
`This court specific, personal jurisdiction over this Defendant.
`
`This Defendant is erroneously named in the Complaint.
`
`There is insufficiency of service of process, and/or lack of service of process.
`
`Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and
`
`indispensable parties.
`
`10.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of collateral estoppel.
`
`11.
`
`All claims brought under the New York Law, L. 1986 C. Section 4 are time-barred
`
`as the statute is unconstitutional.
`
`12.
`
`13.
`
`for transfer.
`
`14.
`
`Plaintiff’s actions are barred by the doctrines of estoppel, waiver, and laches.
`
`The venue of this action is improper and this Defendant reserves the right to move
`
`This Court is considered a forum non conveniens for this Defendant with respect to
`
`each and every Count contained in Plaintiff’s Complaint.
`
`
`
`
`
`
`5
`
`5 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`15.
`
`To the extent that Plaintiff seeks punitive damages against this Defendant, these
`
`damages are improper, unwarranted, not authorized by law and are unconstitutional in the context
`
`of this litigation. Subjecting this Defendant to multiple trials and multiple impositions of punitive
`
`damages for the same course of conduct is a violation of both substantive and procedural due
`
`process under the United States Constitution and Constitution of the State of New York.
`
`16.
`
`Plaintiff’s cause of action for exemplary or punitive damages are barred because
`
`such damages are not recoverable or warranted in this action.
`
`17.
`
`Plaintiff’s claims for punitive damages are barred by the due process clause of the
`
`Fourteenth Amendment to the United States Constitution.
`
`18.
`
`Plaintiff’s claims for punitive damages are barred by the Eighth Amendment of the
`
`United States Constitution applied to the states by the Fourteenth Amendment, prohibiting the
`
`imposition of excessive fines.
`
`19.
`
`Plaintiff’s claims for punitive damages are barred by the double jeopardy clause of
`
`the Fifth Amendment to the United States Constitution, as applied to the states by the Fourteenth
`
`Amendment.
`
`20.
`
`Plaintiff’s sole and exclusive remedy is under the Workers’ Compensation Law of
`
`the State of New York.
`
`21.
`
`Any award for damages recoverable must be diminished by reason of the culpable
`
`conduct attributable to Plaintiff, including contributory negligence and assumption of risk, in the
`
`proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which
`
`caused the damages.
`
`22.
`
`Any award of damages is barred by reason of the culpable conduct attributable to
`
`
`
`
`
`
`6
`
`6 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`Plaintiff, including contributory negligence and assumption of the risk.
`
`23.
`
`If Defendant were liable, negligent or in breach of warranty, all of which it
`
`expressly denies, the defendant’s liability in any or all of those events has been terminated by the
`
`intervening acts, omissions or negligence of others over whom this Defendant had neither control,
`
`nor the right of control and for whose conduct the defendant is not legally responsible.
`
`24.
`
`If the Plaintiff should prove that injuries and damages were sustained as alleged,
`
`such injuries and damages resulted from acts or omissions on the part of third parties over which
`
`this Defendant had neither control nor right of control.
`
`25.
`
`Plaintiff’s employer or employees were negligent with respect to the matters set
`
`forth in the Complaint, and such negligence caused in whole or in part whatever disease, injury or
`
`disability, if any, which plaintiff may have sustained, as set forth in the Complaint. Therefore, even
`
`if plaintiff is entitled to recover against defendant, which defendant specifically denies, he is not
`
`entitled to recover in the amount set forth in the Complaint because defendant is entitled to set off
`
`any and all workmen’s compensation payments against any judgment which might be rendered in
`
`Plaintiff’s favor.
`
`26. While this Defendant denies the allegations of Plaintiff with respect to negligence,
`
`statutory liability, strict liability, injury and damages, to the extent that Plaintiff may be able to
`
`prove same, they were the result of intervening and/or interceding acts of superseding negligence
`
`on the part of third-parties over which this Defendant had neither control nor right of control.
`
`27.
`
`An action for breach of warranty was not available to plaintiff during the period of
`
`the allegedly injurious exposure to, use of, or contact with products allegedly manufactured by
`
`defendant.
`
`
`
`
`
`
`7
`
`7 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`28.
`
`This Defendant states that if it supplied any asbestos product, either directly or
`
`indirectly, to the Plaintiff’s employer (a claim this Defendant expressly denies), this product was
`
`supplied in accordance with specifications established and promulgated by that employer, agencies
`
`or departments of the United States of America, other persons and/or entities.
`
`29.
`
`If this Defendant, its servants or agents made any express warranties (allegations
`
`which this Defendant specifically denies) then the plaintiff did not rely on the express warranties
`
`and, further, there was no such reliance by any person or entity authorized to represent the plaintiff.
`
`30.
`
`At all times during the conduct of its corporate operations, the agents, servants
`
`and/or employees of this Defendant used proper methods in manufacturing and designing its
`
`products in conformity to the available knowledge and research of the scientific and industrial
`
`communities.
`
`31.
`
`If it should be proven at the time of trial that any products of this Defendant were
`
`furnished to Plaintiff’s employers or to the United States Government and that Plaintiff came into
`
`contact with these products, which is specifically denied, then any such product was furnished in
`
`strict conformity to the conditions specified or to the specifications furnished by the United States
`
`Government and/or Plaintiff’s employers.
`
`32.
`
`Plaintiff, his coworkers and employers misused, abused, mistreated and misapplied
`
`this Defendant’s products.
`
`33.
`
`Any oral warranties upon which Plaintiff allegedly relied are inadmissible and
`
`unavailable because of the provisions of the applicable Statute of Frauds.
`
`34.
`
`As to all the causes of action pleaded in the Complaint that may be based upon
`
`express or implied warranties and/or representations, such causes of action are legally insufficient,
`
`
`
`
`
`
`8
`
`8 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`as against this Defendant, by reason of his failure to allege privity of contract between Plaintiff
`
`and this Defendant.
`
`35.
`
`In the event that any breach of warranty is proven, Plaintiff failed to give proper
`
`and prompt notice of any such breach of warranty to this Defendant.
`
`36.
`
`Plaintiff did not directly or indirectly purchase any asbestos-containing products or
`
`materials from this Defendant, and Plaintiff neither received nor relied upon any warranty or
`
`representation that may be alleged to have knowledge and research of the scientific and industrial
`
`communities.
`
`37.
`
`To the extent that the causes of action pleaded by Plaintiff fail to accord with the
`
`Uniform Commercial Code, including but not limited to Section 2-725 thereof, the Plaintiff’s
`
`Complaint is time-barred.
`
`38.
`
`This Defendant denies that Plaintiff had any exposure to any asbestos product
`
`mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed,
`
`delivered, sold, and/or otherwise placed in the stream of commerce by this Defendant, and more
`
`particularly denies upon information and belief that this Defendant mined, processed,
`
`manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or
`
`otherwise placed in the stream of commerce any asbestos product art the times and upon the dates
`
`alleged in the Complaint herein.
`
`39.
`
`This Defendant denies specifically that, during the periods of exposure alleged in
`
`the Complaint by Plaintiff, it produced, mined, processed, manufactured, supplied, developed,
`
`tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of
`
`commerce a substantial and/or any percentage of the asbestos products to which Plaintiff was
`
`
`
`
`
`
`9
`
`9 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`caused to come into contact and which Plaintiff were caused to breathe, inhale and digest and
`
`which thereby caused the Plaintiff’s injuries and resulting damages alleged in the Complaint
`
`herein.
`
`40.
`
`In the event it should be proven at the time of trial that all defendants are subject to
`
`market share liability, then this Defendant’s share of such liability would be of such a de minimis
`
`amount as to make its contribution for damages negligible, and this Defendant would be entitled
`
`to contribution, either in whole or in part from the co-defendants not represented by this answer.
`
`41.
`
`Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen
`
`or reduce the injuries and disability alleged in the Complaint herein.
`
`42.
`
`If the Plaintiff is barred from recovery, the action of his/her spouse is also barred
`
`because it is a derivative action.
`
`43.
`
`This Defendant specifically denies that the asbestos products alleged in the
`
`Complaint are products within the meaning and scope of the Restatement of Torts, §§402A, and
`
`as such the Complaint fails to state a cause of action in strict liability.
`
`44.
`
`Plaintiff contributed to their illness by the use, either in whole or in part, of other
`
`substances, products, medications and drugs.
`
`45.
`
`The defendant had no duty to give instructions to plaintiff or to warn plaintiff of
`
`any hazards attendant to the contract with, use of, or exposure to its products containing asbestos,
`
`whether known or constructively known by defendant, because those hazards were known by
`
`plaintiff and/or other persons who controlled or supervised plaintiff in the course of or incidental
`
`to his employment.
`
`46.
`
`At all times material hereto, the state of the medical, industrial, and scientific arts
`
`
`
`
`
`
`10
`
`10 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`was that there was no generally accepted or recognized knowledge of any unavoidably unsafe,
`
`inherently dangerous, hazardous or defective character or nature of asbestos-containing products
`
`when used in the manner and for the purposes intended, so that there was no duty by this Defendant
`
`to know of such character or nature or to warn plaintiff or others similarly situated, and that, to the
`
`extent such duty arose, adequate warnings either were given or were not necessary under all
`
`circumstances.
`
`47.
`
`In accordance with CPLR 1601, this Defendant’s liability for non-economic loss is
`
`limited to its equitable share of the total liability.
`
`48.
`
`In accordance with CPLR 4545(c) this Defendant is entitled to a set-off for any past
`
`or future costs or expenses incurred or to be incurred by plaintiff for medical care, custodial care
`
`of rehabilitation services, loss of earning or other economic loss, which has been or will with
`
`reasonable certainty be replaced or indemnified in whole or in part from a collateral source.
`
`49.
`
`50.
`
`The Complaint should be dismissed pursuant to CPLR 3016.
`
`If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the
`
`product caused and/or contributed to the alleged damages or injuries to Plaintiff, then this
`
`Defendant requests that the amount of damages which might be recoverable shall be diminished
`
`by the proportion which the same misuse, abuse, mistreatment and/or misapplication, attributed to
`
`the Plaintiff, their coworkers and/or employers bears to the conduct which caused the alleged
`
`damages or injuries.
`
`51.
`
`Defendant denies any and all allegations that it was under a legal obligation or
`
`possessed an enforceable legal right to control or otherwise regulate the premises as to which any
`
`Plaintiff claims a work nexus and/or exposure to an asbestos-containing product.
`
`
`
`
`
`
`11
`
`11 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`52.
`
`Although all liability is expressly denied, in the event this Defendant is found liable
`
`in any amount to Plaintiff, this Defendant asserts all rights provided for under applicable New
`
`York law to setoffs against and/or reductions of the amount of damages a reasonable jury
`
`determines is owed to Plaintiff, including but not limited to General Obligation Law §15-108.
`
`53.
`
`Any injury that plaintiff’s may have suffered was caused by his sole negligence
`
`and/or negligence properly imputed to plaintiff.
`
`54.
`
`55.
`
`Defendant reserves its right to an in-person trial by jury.
`
`The conduct of the plaintiff and the conduct imputed to plaintiff was willful, wanton
`
`and/or reckless.
`
`56.
`
`There was no negligence, gross negligence, willful, wanton or malicious
`
`misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice
`
`(actual, legal or otherwise) on the part of this Defendant as to the plaintiff of the Plaintiff herein.
`
`57.
`
`Plaintiff assumed the risk of conduct which caused any alleged damages. Insofar as
`
`the complaints of each cause of action therein, considered separately, allege that a cause of action
`
`occurred, the recovered damages for personal injuries and the amount of damages recoverable
`
`thereon must be diminished by reason of the culpable conduct attributed to plaintiff.
`
`58.
`
`This Defendant, reserves the right to amend its answer and adopt additional
`
`defenses which have been or will be served by other defendants in this action. In addition, this
`
`Defendant will rely upon further defenses which become available or appear during discovery
`
`proceedings in this action and hereby specifically reserves the right to amend its answer for the
`
`purpose of asserting any such additional defenses.
`
`59.
`
`Although this Defendant denies the allegations of the plaintiff as to injuries and
`
`
`
`
`
`
`12
`
`12 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`damages alleged, these injuries and damages, if any, were caused by the intervening acts and/or
`
`superseding negligence of persons, parties or corporate entities over whom this Defendant had no
`
`control.
`
`60.
`
`Inasmuch as the plaintiff is unable to identify the manufacturer of product(s) which
`
`allegedly caused the injuries to plaintiff, plaintiff’s claims for relief cannot be granted since the
`
`granting of such relief in the absence of product identification would contravene this Defendant’s
`
`constitutional right to procedural due process of law and equal protection as preserved by the
`
`United States Constitution and the Constitution of the State of New York as well as contravene
`
`this Defendant’s constitutional right to protect against the taking of private property for public use
`
`without just compensation as preserved by the United States Constitution and Constitution of the
`
`State of New York.
`
`61.
`
`This Defendant has complied with all applicable laws, regulations and standards at
`
`all relevant times during plaintiff’s alleged injuries. This Defendant denies that is was guilty of
`
`any malicious or intentional conduct which would permit the award of judgment for punitive
`
`damages.
`
`62.
`
`The Order of the Bankruptcy Court which prevents this Defendant from joining
`
`indispensable parties who had declared bankruptcy, has the effect of requiring this Defendant to
`
`defend this action without those other companies as co-defendant’s and prevents the Court from
`
`being able to hear and adjudge all relevant evidence in regard to Plaintiff’s claims and therefore
`
`denies this Defendant of the constitutional right to due process under the Fourteenth Amendment.
`
`63.
`
`Any injuries and/or damages allegedly sustained by plaintiff were naturally and
`
`proximately caused by the sole negligence of plaintiff.
`
`
`
`
`
`
`13
`
`13 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`64.
`
`Plaintiff deriving his causes of action from the injuries and damages allegedly
`
`sustained by plaintiff, at the time and place referred to in the Complaint, are subject to the defenses
`
`hereinbefore set above and by this reference incorporated.
`
`65.
`
`Plaintiff having a derivative cause of action, is barred from recovery by reason of
`
`the contributory negligence of plaintiff.
`
`66.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of discharge in bankruptcy.
`
`67.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of res judicata.
`
`68.
`
`To the extent 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 Estates Powers and Trusts Law §5-41.
`
`69.
`
`If plaintiff is successful on his claims for damages and liability by reason of the
`
`alleged acts complained of, such an amount must be decreased by the amount plaintiff received or
`
`will continue to receive from any collateral source(s).
`
`70.
`
`If plaintiff suffered damages as set forth in the Plaintiff’s Complaint, these damages
`
`will have been caused and brought about by reason of the carelessness, recklessness, negligence
`
`and/or acts of commission or omission and/or breach of contract and/or breach of warranty or other
`
`agreement and/or strict liability and/or other fault of the other co-defendants and other entities not
`
`parties to the above-captioned matter. Therefore, any award made in favor of the Plaintiff in this
`
`case must be reduced by an amount equal to the percentage of the negligence/fault of the other co-
`
`defendants and other entities not parties to the above-captioned matter in causing or contributing
`
`
`
`
`
`
`14
`
`14 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`to the damages as alleged in the Complaint.
`
`71.
`
`Co-Defendants, third-party defendants, and/or entities other than this Defendant
`
`caused or contributed to the damages Plaintiff claims to have suffered. Therefore, any award made
`
`in favor of the Plaintiff in this case must be reduced by an amount equal to the percentage of the
`
`negligence/fault of others in causing or contributing to the damages as alleged in the Complaint.
`
`72.
`
`If Plaintiff should recover a judgment against Clark-Reliance, by operation of law
`
`or otherwise, Clark-Reliance is entitled to judgment, contribution and/or indemnity over and
`
`against the co-defendants, third-party defendants and non-parties, their agents, servants and/or
`
`employees, by reason of their carelessness, recklessness, negligence and/or other wrongful conduct
`
`for the amount of any such recovery, or a portion thereof, in accordance with principles 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.
`
`73.
`
`To the extent that this Defendant is alleged to be the successor to any entity, this
`
`Defendant denies any such successorship existence and/or relationship.
`
`CROSS-CLAIMS
`
`Defendant asserts the following by way of cross-claims:
`
`1.
`
`If Plaintiffs sustained damages at the time and place set forth in the Complaint
`
`
`
`
`
`
`through carelessness, recklessness, and/or negligence other than that of Plaintiffs themselves,
`
`including, but not limited to, the manufacture and distribution of asbestos or asbestos-containing
`
`products/materials, breach of warranty or misrepresentations, 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 and/or third-party, with
`
`
`
`
`
`
`15
`
`15 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`indemnification and/or contribution to Defendant as implied-in-fact or implied-in-law.
`
`
`
`2.
`
`If Defendant is found liable as to Plaintiffs and/or any third-party Plaintiffs for the
`
`injuries and damages set forth the Complaint and/or in a third-party Complaint, the said co-
`
`defendants and third-party defendants will be liable jointly and severally to Clark-Reliance and
`
`will be bound to fully indemnify Clark-Reliance.
`
`
`
`3.
`
`Defendant is entitled to contribution, in whole or in part, from each of the co-
`
`defendants and third-party defendants now or hereafter named herein, together with the costs and
`
`disbursements incurred in the defense of this action.
`
`
`
`4.
`
`If Plaintiffs should recover a judgment against Defendant, by operation of law or
`
`otherwise, Defendant will be entitled to judgment, contribution and/or indemnity over and against
`
`the co-defendants, 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 principles 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 attorney’s fees.
`
`
`
`
`
`
`
`
`
`
`
`
`
`ANSWERS TO ALL CROSS-CLAIMS
`
`This Defendant answers all cross-claims, saying:
`
`1. All cross-claims for contribution alleged are denied.
`
`2. All cross-claims for indemnification alleged are denied.
`
`WHEREFORE, Defendant demands judgment dismissing the Complaint with costs and
`
`disbursements, and in the event of any judgment against Defendant, it demands judgment,
`
`contribution and/or indemnity over and against the co-defendants and third-parties for the amount
`
`
`
`
`
`
`16
`
`16 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`of any such recovery or a portion thereof, in accordance with the principles of law regarding
`
`apportionment of fault and damages, along with costs and disbursements, including reasonable
`
`attorney fees.
`
`Dated: Cedar Grove, New Jersey
` December 20, 2023
`
`
`
`O’TOOLE SCRIVO, LLC
`
`
`BY: /s/ Casey Chamra
` Casey Chamra
`
`Attorneys for Defendant,
`Clark-Reliance Corporation, Individually
`14 Village Park Road
`Cedar Grove, New Jersey 07009
`(973) 239-5700 Phone
`(973) 239-3400 Fax
`
`-- and –
`
`
`535 Fifth Avenue
`Fourth Floor
`New York, NY 10017
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: Erie County Clerk
`County Court House
`92 Franklin Street
`Buffalo, New York 14202
`
`ALL COUNSEL ON
`ATTACHED RIDER
`
`
`
`
`
`
`
`
`17
`
`17 of 18
`
`

`

`FILED: ERIE COUNTY CLERK 12/20/2023 09:09 AM
`NYSCEF DOC. NO. 7
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 12/20/2023
`
`ATTORNEY’S VERIFICATION
`
`
`
`
`
`
`The undersigned, an attorney admitted to practice in the Courts of New York State, shows:
`
`That deponent is a Partner with O’TOOLE SCRIVO, LLC, counsel for Defendant,
`
`CLARK-RELIANCE CORPORATION,
`
`INDIVIDUALLY
`
`(“CLARK-RELIANCE” or
`
`“Defendant”), in the within action; that deponent has read the foregoing Answer and knows the
`
`contents thereof; that the same is true to deponent's knowledge, except as to the matters therein
`
`stated to be alleged upon information and belief, and that as to those matters deponent believes it
`
`to be true; and that this verification is made by deponent and not by defendant because said
`
`defendant is a foreign corporation, and its offices are outside of the county where the deponent
`
`maintains his office.
`
`DATED:
`
`Cedar Grove, New Jersey
`December 20, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`O’TOOLE SCRIVO, LLC