FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`TROY SHANE SMITH and ALLYSON JANE SMITH,
`Plaintiffs,
`V.
`VEMFIED ANSWER TO
`SECOND AMENDED
`VERIFIED COMPLAINT
`Index No. : 81463 3/2023
`84 LUMBAR COMPANY, et al.
`Defendants.
`Defendant, FORD MOTOR COMPANY, by its attorneys, Bennett Schechter Arcuri & Will
`LLP, for its Verified Answer to the Plaintiffs' Second Amended Verified Complaint, dated May 3,
`2024:
`1.
`Repeats and realleges its Verified Answer to Plaintiffs' First Amended Verified
`Complaint, dated May 2, 2024 to Plaintiffs' First Amended Verified Complaint, dated April 9, 2024,
`as if fully set forth herein.
`2.
`Denies knowledge and information sufficient to form a belief as to the truth of the
`allegations as to FORD as set forth in Paragraphs "I", "3", "4" and "6" of the Plaintiffs' Second
`Amended Verified Complaint.
`3. With respect to the allegations contained in Paragraphs "2" and "5" of the Plaintiffs'
`Second Amended Verified Complaint, Defendant denies such allegations as to FORD, and denies
`knowledge and information sufficient to form a belief with respect to the remaining allegations.
`4.
`Denies each and every other remaining allegation of the Plaintiffs' Second Amended
`Verified Complaint not hereinbefore specifically admitted or otherwise denied.
`
`NYSCEF DOC. NO. 80
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 05/03/2024
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`1 of 12
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`TROY SHANE SMITH and ALLYSON JANE SMITH,
`Plaintiffs,
`V.
`VEMFIED ANSWER TO
`SECOND AMENDED
`VERIFIED COMPLAINT
`Index No. : 81463 3/2023
`84 LUMBAR COMPANY, et al.
`Defendants.
`Defendant, FORD MOTOR COMPANY, by its attorneys, Bennett Schechter Arcuri & Will
`LLP, for its Verified Answer to the Plaintiffs' Second Amended Verified Complaint, dated May 3,
`2024:
`1.
`Repeats and realleges its Verified Answer to Plaintiffs' First Amended Verified
`Complaint, dated May 2, 2024 to Plaintiffs' First Amended Verified Complaint, dated April 9, 2024,
`as if fully set forth herein.
`2.
`Denies knowledge and information sufficient to form a belief as to the truth of the
`allegations as to FORD as set forth in Paragraphs "I", "3", "4" and "6" of the Plaintiffs' Second
`Amended Verified Complaint.
`3. With respect to the allegations contained in Paragraphs "2" and "5" of the Plaintiffs'
`Second Amended Verified Complaint, Defendant denies such allegations as to FORD, and denies
`knowledge and information sufficient to form a belief with respect to the remaining allegations.
`4.
`Denies each and every other remaining allegation of the Plaintiffs' Second Amended
`Verified Complaint not hereinbefore specifically admitted or otherwise denied.
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`FIRST DEFENSE
`1.
`The First Amended Verified Complaint, and any amendments thereto, fails to state a
`claim upon which relief can be granted.
`SECOND DEFENSE
`2.
`Plaintiffs' claims are barred by the doctrine of laches.
`THIRD DEFENSE
`3.
`Each of Plaintiffs' claims are barred by prior accord and satisfaction.
`FOURTH DEFENSE
`4.
`Plaintiffs lack capacity, standing or authority to bring this action in whole or in part.
`FIFTH DEFENSE
`5.
`To the extent that Plaintiffs seek damages for loss of consortium, Plaintiffs' loss of
`consortium claim is barred as a matter of law because the alleged asbestos exposure by Plaintiffs
`pre-dates the date of Plaintiffs' marriage.
`SIXTH DEFENSE
`6.
`This Court lacks personal jurisdiction.
`SEVENTH DEFENSE
`7
`Venue is improper and/or is inconvenient.
`EIGHTH DEFENSE
`8.
`To the extent Plaintiffs have another action pending against FORD for the same cause
`of action in another court, this action must be dismissed.
`NINTH DEFENSE
`9.
`To the extent Plaintiffs executed a settlement agreement releasing and discharging
`FORD from all claims arising out of the Plaintiffs' alleged injuries, FORD is relieved from any
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
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`liability
`TENTH DEFENSE
`10.
`Plaintiffs' sole and exclusive remedy is under the Worker's Compensation Law of
`the State of New York.
`ELEVENTH DEFENSE
`11. Any injuries and/or damages sustained by the Plaintiffs are the result of the actions
`or inactions of persons or entities for whose conduct FORD is not legally responsible.
`TWELFTH DEFENSE
`12.
`The allegations set forth in the First Amended Verified Complaint, and any
`amendments thereto, are barred by the applicable statute of limitations.
`THIRTEENTH DEFENSE
`13.
`To the extent Plaintiffs ' claims are barred because of discharge in bankruptcy, FORD
`is relieved from liability
`FOURTEENTH DEFENSE
`14.
`FORD reserves the right to amend its Verified Answer and to assert additional cross-
`claims and/or to otherwise counterclaim as to any parties named in the First Amended Verified
`Complaint, and any amendments thereto, who may have, are, or will be declared bankrupt or
`otherwise file petitions under the Bankruptcy Code.
`FIFTEENTH DEFENSE
`15. All claims brought under an Act of the New York State Legislature, entitled Toxic
`Tort - Statute of Limitations Laws of 1986, Chapter 682, Section 4, are time barred in that the statute
`is in violation of the Constitution of the United States and the Constitution of the State of New York.
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`SIXTEENTH DEFENSE
`16. Plaintiffs' alleged injuries and/or damages, if any, arose in whole or in part out of the
`risks, hazards, and dangers which, whether related to asbestos or not, were open, obvious, and well
`known to Plaintiff.
`SEVENTEENTH DEFENSE
`17. To the extent that Plaintiffs contributed to his or her injuries by the use and/or misuse,
`either in whole or in part, of other substances, products, medications and/or drugs, including but not
`limited to any tobacco products, welding fumes or other foreign toxic substances, any liability on
`the part of FORD should be reduced by the extent of any such use and injuries related thereto or
`caused thereby.
`EIGHTEENTH DEFENSE
`18. Plaintiffs failed to mitigate or otherwise act to lessen or reduce the alleged injuries,
`disabilities, and/or damages.
`NINETEENTH DEFENSE
`19.
`Insofar as the First Amended Verified Complaint, and any amendments thereto, and
`each claim for relief contained therein, considered separately, alleges a claim accruing before
`September 1975, each such claim is barred by reason of the culpable conduct attributable to Plaintiffs
`including, but without limitation thereof, contributory negligence and assumption of risk.
`TWENTIETH DEFENSE
`20. Plaintiffs' injuries, if any, were proximately caused by an unforeseeable,
`independent, intervening and/or superseding event(s) beyond the control, and unrelated to any
`conduct of FORD. FORD'S actions or omissions, if any, were superseded by the negligence and
`wrongful conduct of others.
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`5 of 12
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`TWENTY-FIRST DEFENSE
`21
`FORD did not make any express warranties that Plaintiffs could allege formed the
`benefit of the bargain.
`TWENTY-SECOND DEFENSE
`22. Plaintiffs' claims are barred by collateral estoppel.
`TWENTY-THIRD DEFENSE
`23. Plaintiffs' claims are barred by res judicata.
`TWENTY-FOURTH DEFENSE
`24.
`The damages, if any, alleged by Plaintiffs in the First Amended Verified Complaint,
`and any amendments thereto, were proximately caused by the misuse, alteration and/or modification
`of FORD products or material referred to in the First Amended Verified Complaint, and any
`amendments thereto, if any, either by Plaintiffs or others.
`TWENTY-FIFTH DEFENSE
`25.
`Plaintiffs failed to give notice to FORD, within a reasonable time, of the claimed
`breach of warranty alleged in the First Amended Verified Complaint, and any amendments thereto,
`in the manner and form prescribed by law.
`TWENTY-SIXTH DEFENSE
`26,
`Plaintiffs' employer or employers, including said employers' agents, servants, and
`employees, by reason of the warnings and handling information given to them and their own
`longstanding and continuous experience with the products or materials, if any, referred to in the First
`Amended Verified Complaint, and any amendments thereto, are and were sophisticated users of any
`and all such products or materials, and thereby acquired a separate and affirmative duty to warn their
`employees, including Plaintiffs, of any alleged potential harmful effects from the use or misuse of
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`6 of 12
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`said products or materials. By reason of the foregoing, said employers' failure to disclose said duty
`directly and proximately caused any and all damages and injuries, if any, complained of by Plaintiffs.
`TWENTY-SEVENTH DEFENSE
`27.
`In accordance with CPLR 1601, FORD'S liability for non-economic loss, if any, is
`limited to its equitable share of the total liability for non-economic loss.
`TWENTY-EIGHTH DEFENSE
`28.
`The First Amended Verified Complaint, and any amendments thereto, and each cause
`of action therein presented are barred on the grounds that Plaintiffs failed to join indispensable
`parties and the First Amended Verified Complaint, and any amendments thereto, is thereby
`defective.
`TWENTY-NINTH DEFENSE
`29. Assuming, but without conceding, that products manufactured or supplied by FORD
`were used by Plaintiffs, any such asbestos-containing products were designed and manufactured
`pursuant to and in accordance with specifications mandated by the federal, state and/or local
`governments and/or their agencies. Accordingly, FORD is not liable to the Plaintiffs.
`THIRTIETH DEFENSE
`30.
`FORD did not participate, engage, or assist in any act or conduct which could form
`the basis for an award of punitive damages and punitive damages are, therefore, not recoverable to
`any extent whatsoever against FORD.
`THIRTY-FIRST DEFENSE
`31.
`The claim for punitive or exemplary damages, if any, alleged by Plaintiffs is barred
`by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. Furthermore,
`there is no standard for determining the amount of the award since State law does not define with
`6
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`7 of 12
`
`sufficient clarity the requisite conduct or mental state.
`THIRTY-SECOND DEFENSE
`32.
`The imposition of punitive damages would violate the excessive fines and due
`process clauses of the Constitutions of the United States and of the State of New York.
`THIRTY-THIRD DEFENSE
`33.
`Inasmuch as Plaintiffs are unable to identity the manufacturers of products which
`allegedly caused his or her injuries. Plaintiffs' claim for relief cannot be granted since the granting
`of such relief in the absence of product identification would contravene FORD'S constitutional rights
`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 FORD'S constitutional right to
`protection against the taking of private property for public use without just compensation as
`preserved by the United States Constitution and the Constitution of the State of New York.
`THIRTY-FOURTH DEFENSE
`34. To the extent Plaintiffs claim injury arising from premises liability, said claims are
`barred because Plaintiffs were not exposed to any asbestos fibers on FORD'S premises and FORD
`did not exercise control, a right of control, or direction over or supervise Plaintiffs' work.
`THIRTY-FIFTH DEFENSE
`35. Plaintiffs' claim under Section 240 of the Labor Law commonly known as the
`Scaffold Law, is not applicable because Plaintiffs do not allege a gravity-related injury.
`THIRTY-SIXTH DEFENSE
`36. All or part of Plaintiffs' claimed economic loss may have been paid, replaced or
`indemnified in whole or in part from collateral sources, or with reasonable certainty will be replaced
`or indemnified in the future from such collateral sources, and to the extent, FORD requests that in
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`8 of 12
`
`the event Plaintiffs recover any judgment herein, that said judgment be reduced by any amounts that
`have been or may be recovered in whole or in part from collateral sources pursuant to CPLR 4545.
`THIRTY-SEVENTH DEFENSE
`37.
`Pursuant to Section 15-108 of the New York General Obligations Law, Plaintiffs'
`recovery, if any, from this answering Defendant must be reduced by the greatest of: (1) any amounts
`actually paid by any person or entity for any of the injuries, costs, damages and/or expenses alleged
`in the First Amended Verified Complaint, and any amendments thereto; or (2) any amounts
`stipulated or otherwise agreed to in any release of or covenant not to sue any person or entity for any
`injuries, costs, damages and/or expenses alleged in the First Amended Verified Complaint, and any
`amendments thereto; or (3) the equitable share of the liability of any person or entity that has
`received, or hereafter receives, any release from liability or covenant not to sue with respect to any
`of the injuries, costs, damages and/or expenses alleged in the First Amended Verified Complaint,
`and any amendments thereto.
`THIRTY-EIGHTH DEFENSE
`38.
`The culpable conduct of the Plaintiffs, if not the sole cause of damages sustained by
`the Plaintiffs alleged in the First Amended Verified Complaint, and any amendments thereto,
`contributed to such injuries and damages and any damages otherwise recoverable by Plaintiffs in
`this action shall be diminished in the proportion which the Plaintiffs' culpable conduct bears to the
`culpable conduct which caused such damages, pursuant to Article 14A of the New York State Civil
`Practice Law and Rules.
`CROSS-CLAIM FOR INDEMNITY
`39.
`The answering Defendant, FORD MOTOR COMPANY, denies any negligence on
`its part which was a proximate cause of the injuries alleged in the First Amended Verified Complaint,
`8
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
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`9 of 12
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`and any amendments thereto, but if the answering Defendant, FORD MOTOR COMPANY, is found
`liable to the Plaintiffs, then such liability will have been brought about by reason of the active and
`primary negligence of the Co-Defendants, and if the answering Defendant, FORD MOTOR
`COMPANY, is found liable to any degree in this action to the Plaintiff, then the answering
`Defendant, FORD MOTOR COMPANY, will be entitled to indemnification by and judgment over
`and against the Co-Defendants for the full amount of said liability, including reasonable attorney's
`fees and costs.
`CROSS-CLAIM FOR CONTMBUTION
`40.
`The answering Defendant, FORD MOTOR COMPANY, denies any negligence on
`its part which was a proximate cause of the injuries alleged in the First Amended Verified Complaint,
`and any amendments thereto, but if the answering Defendant, FORD MOTOR COMPANY, is found
`liable to the Plaintiffs, then such liability will have been brought about by reason of the active and
`primary negligence of the Co-Defendants, and if the answering Defendant, FORD MOTOR
`COMPANY, is found liable to any degree in this action to the Plaintiffs, then the answering
`Defendant, FORD MOTOR COMPANY, will be entitled to contribution &om the Co-Defendants
`for such proportionate share as represents the full amount, degree or kind of negligence attributable
`to the Co-Defendants including reasonable attorney's fees and costs, pursuant to Article 14 of the
`Civil Practice Law and Rules.
`ANSWER TO ALL CROSS-CLAIMS
`it.
`41
`FORD denies all allegations of liability contained in all cross-claims asserted against
`42.
`FORD denies all cross-claims for contribution and indemnification and adopts all
`affirmative defense pleaded herein.
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`RECEIVED NYSCEF: 05/03/2024
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`10 of 12
`
`WHEREFORE, FORD prays as follows:
`1.
`That the First Amended Verified Complaint, and all amendments thereto, and each
`cause of action contained therein be dismissed with prejudice against FORD;
`2.
`That the Plaintiffs' damages be diminished in the proportion which the culpable
`conduct and contributory negligence attributed to Plaintiffs bears to the culpable conduct and
`negligence which caused such damages;
`3.
`That the relative culpability, if any, among the Defendants be apportioned pursuant
`to Article 14 of the Civil Practice Law and Rules;
`4.
`That it be awarded judgment against the Co-Defendants under the cross-claim of
`contribution for the proportionate share of any such judgment as represents the amount, degree or
`kind of negligence attributable to the Co-Defendants;
`5.
`That it be awarded judgment under the cross-claim of indemnification against the co-
`Defendants for the full amount of any judgment, if any, rendered herein in favor of the Plaintiffs and
`against the Defendant, FORD;
`6.
`That FORD recover its costs, disbursements, expenses, and attorneys' fees, herein,
`and;
`7.
`That the Court grant such other and further relief as it may deem just and proper.
`DATED:
`Buffalo, New York
`May 3, 2024
`Jenna . McDo , Es
`BE ETTSCHECHT R
`AR URI&WILL,LLP
`Att rney s for Defendant
`FORD MOTOR COMPANY
`701 Seneca Street, Suite 609
`Buffalo, New York 14210
`(716)242-8106
`10
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`INDEX NO. 814633/2023
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`11 of 12
`
`TO:
`Joseph W. Belluck, Esq.
`BELLUCK & FOX, LLP
`Attorneys for Plaintiffs
`546 Fifth Avenue, 5th Floor
`New York, New York 10036
`(212)681-1575
`ec:
`Counsel for Co-Defendants, upon appearance
`11
`
`
`FILED: ERIE COUNTY CLERK 05/03/2024 03:04 PM
`NYSCEF DOC. NO. 80
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`12 of 12
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`VERIFICATION
`Jenna E. McDonnell, Esq., an attorney duly admitted to practice before the courts of the State
`of New York, affirms the following to be true under the penalty of perjury: I am a member of the
`firm ofBENNETT SCHECHTER ARCURI & WILL LLP, attorneys of record for Defendant FORD
`MOTOR COMPANY in the within action; I have read the foregoing Verified Answer to Second
`Amended Verified Complaint and know the contents thereof; the same is tme to my own knowledge
`except as to the matters therein stated to be alleged on information and belief, and as to those matters,
`I believe them to be tme. The reason the verification is made by me and not by the Defendant is that
`the Defendant is a foreign corporation. The grounds of my belief as to all matters in the Verified
`Answer to Second Amended Verified Complaint not stated upon my own knowledge are as follows:
`conversations with Defendant's employees and record 'n De endant's custod .
`Sworn to before me this
`3rd day of May 2024.
`^OOdJLt^
`CWtQ>
`Notary Pytdiia-A L.^WILLIAMS
`Public, State of New York
`Qualified in Erie County
`f^ j^
`My Commission Exoires iviaruii ou, ^
`Je a . McDo
`12
`
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