FILED: ERIE COUNTY CLERK 12/20/2023 09:17 AM
`NYSCEF DOC. NO. 9
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/20/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
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`TROY SHANE SMITH and ALLYSON JANE SMITH,
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`-against-
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`84 LUMBER COMPANY, et al.,
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`----------------------------------------------------------------------
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`Index No.: 814633/23
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`VERIFIED ANSWER
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`Plaintiff(s),
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`Defendants.
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` O U N S E L O R S :
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`Defendant, DOMCO PRODUCTS TEXAS INC. s/i/a DOMCO PRODUCTS TEXAS INC.,
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`d/b/a Tarkett, Inc. Individually and as successor to Azrock Industries, Inc. (hereinafter DOMCO
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`PRODUCTS TEXAS INC..), through its attorneys, BARRY McTIERNAN & MOORE LLC,
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`answering the Verified Complaint of the plaintiff, states as follows:
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`1.
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`Denies any knowledge or information sufficient to form a belief as to the allegations
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`contained in paragraphs numbered “1”, “2”, “3”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”,
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`“15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “27”, “28”, “29”, “30”, “31” ,
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`“32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47”, “48”,
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`“49”, “50”, “51”, “52”, “53”, “54”, “55”, “56”, “57”, “58”, “59”, “60” and “61” of the Verified
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`Complaint.
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`2.
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`Denies upon information and belief, each and every allegation contained in
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`paragraphs numbered “4” and “5” of the Verified Complaint with all questions of law referred to the
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`Court.
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`3.
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`Denies upon information and belief, each and every allegation contained in paragraph
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`numbered “26” of the Verified Complaint except admits DOMCO PRODUCTS TEXAS INC. is a
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`foreign corporation.
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`4.
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`Denies each and every allegation contained in paragraph numbered “62”, “63”, “64”,
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`“65”, “66”, “67”, “68” and “69” of the Verified Complaint.
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`ANSWERING FIRST CAUSE OF ACTION
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`5.
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`Answering paragraph numbered “70” of the Verified Complaint, defendant, DOMCO
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`PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response contained in
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`paragraphs numbered “1” through “4” of this Verified Answer.
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`6.
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`Denies each and every allegation contained in paragraph numbered “71”, “72”, “73”,
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`“74”, “75”, “76”, “77” and “78” of the Verified Complaint.
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`ANSWERING SECOND CAUSE OF ACTION
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`7.
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`Answering paragraph numbered “79” of the Verified Complaint, defendant, DOMCO
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`PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response contained in
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`paragraphs numbered “1” through “6” of this Verified Answer.
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`8.
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`Denies upon information and belief, each and every allegation contained in paragraph
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`numbered “80” of the Verified Complaint with all questions of law referred to the Court.
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`9.
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`Denies each and every allegation contained in paragraphs numbered “81”, “82” and
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`“83” of the Verified Complaint.
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`ANSWERING THIRD CAUSE OF ACTION
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`10. Answering paragraph numbered “84” of the Verified Complaint, defendant, DOMCO
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`PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response contained in
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`paragraphs numbered “1” through “9” of this Verified Answer.
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`11.
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`Denies each and every allegation contained in paragraphs numbered “85”, “87”, “89”,
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`“90”, “91”, “92” and “93” of the Verified Complaint.
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`12.
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`Denies upon information and belief, each and every allegation contained in
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`paragraphs numbered “86” and “88” of the Verified Complaint with all questions of law referred to
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`the Court.
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`ANSWERING FOURTH CAUSE OF ACTION
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`13. Answering paragraph numbered “94” of the Verified Complaint, defendant, DOMCO
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`PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response contained in
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`paragraphs numbered “1” through “12” of this Verified Answer.
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`14.
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`Denies each and every allegation contained in paragraph “95”, “96”, “97”, “98”,
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`“99”, “100”, “101”, “102”, “103”, “104”, “105”, “106”, “107”, “108”, “109”, “110”, “111” and
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`“112” of the Verified Complaint.
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`ANSWERING FIFTH CAUSE OF ACTION
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`15. Answering paragraph numbered “113” of the Verified Complaint, defendant,
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`DOMCO PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response
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`contained in paragraphs numbered “1” through “14” of this Verified Answer.
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`16.
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`Denies any knowledge or information sufficient to form a belief as to the allegations
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`contained in paragraphs numbered “114”, “115”, “116”, “117”, “118”, “119” and “120” of the
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`Verified Complaint.
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`ANSWERING SIXTH CAUSE OF ACTION
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`17. Answering paragraph numbered “121” of the Verified Complaint, defendant,
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`DOMCO PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response
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`contained in paragraphs numbered “1” through “16” of this Verified Answer.
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`18.
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`Denies each and every allegation contained in paragraph numbered “122”, “123”,
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`“124”, “125”, “126”, “127”, “128”, “129”, “130”, “131”, “132”, “133”, “134”, “135” and “136” of
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`the Verified Complaint.
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`ANSWERING SEVENTH CAUSE OF ACTION
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`19. Answering paragraph numbered “137” of the Verified Complaint, defendant,
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`DOMCO PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response
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`contained in paragraphs numbered “1” through “18” of this Verified Answer.
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`20.
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`Denies any knowledge or information sufficient to form a belief as to the allegations
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`contained in paragraphs numbered “138”, “139”, “140”, “141”, “142”, “143”, “144”, “145”, “146”,
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`“147”, “148”, “149” and “150” of the Verified Complaint.
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`ANSWERING EIGHTH CAUSE OF ACTION
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`21. Answering paragraph numbered “151” of the Verified Complaint, defendant,
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`DOMCO PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response
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`contained in paragraphs numbered “1” through “20” of this Verified Answer.
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`22.
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`Denies any knowledge or information sufficient to form a belief as to the allegations
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`contained in paragraphs numbered “152”, “153”, “154”, “155”, “156”, “157”, “158”, “159”, “160”
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`and “161” of the Verified Complaint.
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`23.
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`Denies each and every allegation contained in paragraph numbered “162”, “163”,
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`and “164” of the Verified Complaint.
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`24.
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`Denies upon information and belief, each and every allegation contained in
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`paragraphs numbered “165” and “166” of the Verified Complaint with all questions of law referred
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`to the Court.
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`ANSWERING NINTH CAUSE OF ACTION
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`25. Answering paragraph numbered “167” of the Verified Complaint, defendant,
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`DOMCO PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response
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`contained in paragraphs numbered “1” through “24” of this Verified Answer.
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`26.
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`Denies upon information and belief, each and every allegation contained in
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`paragraphs numbered “168”, “169”, “170”, “171”, “172”, “173”, “174”, “175”, “176”, “177”, “178”,
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`“177”, “178” and “179” of the Verified Complaint with all questions of law referred to the Court.
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`ANSWERING TENTH CAUSE OF ACTION
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`27. Answering paragraph numbered “180” of the Verified Complaint, defendant,
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`DOMCO PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response
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`contained in paragraphs numbered “1” through “26” of this Verified Answer.
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`28.
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`Denies each and every allegation contained in paragraph numbered “181” of the
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`Verified Complaint.
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`ANSWERING EVELENTH CAUSE OF ACTION
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`29. Answering paragraph numbered “182” of the Verified Complaint, defendant,
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`DOMCO PRODUCTS TEXAS INC., repeats, reiterates and realleges each and every response
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`contained in paragraphs numbered “1” through “28” of this Verified Answer.
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`30.
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`Denies any knowledge or information sufficient to form a belief as to the allegations
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`contained in paragraph numbered “183” of the Verified Complaint.
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`31.
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`Denies each and every allegation contained in paragraph numbered “184” of the
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`Verified Complaint.
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`32.
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`This Court lacks jurisdiction over the answering defendant as a result of improper,
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`and lack of, service of process.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`33.
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` All claims are time-barred by the applicable Statutes of Limitations.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
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`34.
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`All claims brought under the New York Statute of Limitations approved July 30,
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`1986 are time barred in that the statute is unconstitutional.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`35.
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`The causes of action pleaded in the complaint have not been maintained in a timely
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`fashion and plaintiffs have neglected the same and should be barred by the doctrine of laches.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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`36.
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`The forum chosen by the plaintiffs lacks personal jurisdiction over this answering
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`defendant.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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`37.
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`The complaint and each and every allegation considered separately fails to state any
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`cause of action against the answering defendant upon which relief can be granted.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
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`38.
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`Insofar as the complaint, and each cause of action considered separately, alleges a
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`cause of action accruing on or after September 1, 1975, to recover damages for personal injuries, the
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`amount of damages recoverable thereon must be diminished by reason of the culpable conduct
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`attributable to the plaintiff including contributory negligence and assumption of risk, in the
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`proportion which the culpable conduction attributable to the plaintiffs bears to the culpable conduct
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`which cause the damages.
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
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`39.
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`Insofar as the complaint, and each cause of action considered separately, alleges a
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`cause of action accruing before September 1, 1975, each such cause of action is barred by reason of
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`the culpable conduct attributable to the plaintiffs including contributory negligence and assumption
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`of the risk.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`40.
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`If the plaintiffs should prove that they sustained injuries and damages as alleged, such
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`injuries and damages resulted from acts or omissions on the part of the third-parties over whom this
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`answering defendant had no control or right of control.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
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`41. While this answering defendant denies the plaintiffs' allegations of negligence,
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`statutory liability and/or strict liability, any injury and damages, to the extent that plaintiffs may be
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`able to prove them, were the results of intervening and/or interceding acts of superseding negligence
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`on the part of parties over whom this answering defendant neither controlled nor had the right to
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`control.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`42.
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`At all times during the conduct of its corporate operations, the agents, servants and/or
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`employees of this answering defendant used methods in manufacturing its products in conformity
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`with the available knowledge, state of the art and research of the scientific and industrial
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`communities.
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
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`43.
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`Plaintiffs, their co-workers and employers misused, abused, mistreated and
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`misapplied the product designated as asbestos material as alleged in the complaint.
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
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`44.
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` If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the
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`product caused and/or contributed to the alleged damages or injuries to the plaintiffs, then this
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`answering defendant requests that the amount of damages which might be recoverable shall be
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`diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication,
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`attributed to the plaintiffs, their co-workers and/or employers bear to the conduct which caused the
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`alleged damages or injuries.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`45.
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`Any oral warranties upon which plaintiffs relied are inadmissible and unavailable
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`because of the provisions of the applicable Statue of Frauds.
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`46.
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`As to all causes of action pleaded in the complaint which are based upon expressed or
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`implied warranties and/or representations, the alleged breaches thereof as against this answering
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`defendant are legally insufficient by reason of their failure to allege privity of contract between the
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`plaintiffs and this answering defendant.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`47.
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`Plaintiffs did not directly or indirectly purchase any asbestos containing products or
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`materials from this answering defendant and plaintiffs neither received nor relied on any
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`representation or warranty allegedly made by this answering defendant.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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`48.
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`In the event that any breach of warranty is proven, plaintiffs failed to give proper and
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`prompt notice of any such breach of warranty to this answering defendant.
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
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`49.
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`To the extent that the causes of action pleaded by plaintiffs fail to accord with the
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`Uniform Commercial Code, including, but not limited to Section 2-725 thereof, the plaintiffs'
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`complaint is time-barred.
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
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`50.
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`Upon information and belief, plaintiffs filed to mitigate or otherwise act to lessen or
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`reduce the injuries and disabilities alleged in the complaint.
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
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`51.
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`To the extent that plaintiff seeks punitive damages against answering defendant, these
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`damages are improper, unwarranted, not authorized by law and are unconstitutional in the context of
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`this litigation. Subjecting the defendant to multiple trials and multiple imposition of punitive
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`damages for the same course of conduct is violation of both substantive and procedural due process
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`under the United States Constitution and the State of New York. Punitive damages are a violation of
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`due process. The standard for the award of punitive damages is constitutionally void for vagueness.
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`Lack of limitation on possible multiple imposition of punitive damage awards for the same alleged
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`course of conduct is unconstitutional.
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`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
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`52.
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`Plaintiffs are estopped from asserting the causes of action alleged in the complaint.
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`53.
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`Plaintiffs have waived the causes of action and recovery alleged in the complaint.
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`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
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`54.
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`Plaintiffs have failed to name and join essential and necessary parties.
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`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`55.
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`The defendant answering herein incorporated by reference, as if more fully set forth
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`at length herein, all defenses, both affirmative and otherwise, raised, pleaded or asserted by all other
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`answering defendants and third-party defendants.
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`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`56.
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`The injuries allegedly suffered by the plaintiffs, if any (which injuries are specifically
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`denied by the answering defendant), were the result of culpable conduct or fault of third persons for
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`whose conduct this answering defendant is not legally responsible, and the damaged recovered by
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`the plaintiffs, if any, should be diminished or reduced in the proportion to which said culpable
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`conduct bears upon the culpable conduct which caused the damages. Any liability on the part of this
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`answering defendant (which liability is vigorously and specifically denied) is fifty percent or less of
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`the liability of all persons who are the cause of the alleged injuries, if any, and the liability of this
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`answering defendant for non-economic loss does not exceed this answering defendant's equitable
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`share 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 section 1601 through 1603.
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`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`57.
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`Plaintiffs lack requisite capacity, standing and authority to bring the within action, as
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`they are not real parties in interest.
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`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`58.
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`The within action cannot be maintained as there is another action pending between
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`the same of similar parties for the same cause of action in a court of a state or the United States.
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`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`59.
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`This cause of action may not be maintained because of arbitration and award,
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`collateral estoppel, a discharge in bankruptcy, infancy (or some other disability) of the plaintiffs,
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`payment, release and/or res judicata.
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`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
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`60.
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`Plaintiffs do not specifically make any allegations against the answering defendant.
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`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
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`61.
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`The defendant, DOMCO PRODUCTS TEXAS INC. alleges and asserts that the
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`action has been improperly venued.
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`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
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`62.
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`Any asbestos-containing product of this answering defendant that may be present at
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`plaintiff’s job locations were placed in any such buildings upon specification, approval or at the
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`instruction of governmental or legislative agencies or bodies.
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`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
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`63.
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`Exposure to asbestos fibers attributable to this defendant is so minimal so as to be
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`insufficient to establish to a reasonable degree of probability that the products are capable of causing
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`injury or damages and must be considered speculative as a matter of law.
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`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
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`64.
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`At all times relevant to this litigation, this defendant complied with all applicable law,
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`regulations and standards applicable law, regulations and standards.
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`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
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`65.
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`Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use
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`of tobacco products and/or other substances, products, medications or drugs.
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`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
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`66.
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`Upon information and belief, some or all of the causes of action may not be
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`maintained because of arbitration and award.
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`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
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`67.
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`Upon information and belief, some or all of the causes of action may not be
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`maintained because of payment.
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`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
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`68.
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`Upon information and belief, some or all of the causes of action may not be
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`maintained because of release.
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`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
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`69.
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`That plaintiff’s action against DOMCO PRODUCTS TEXAS INC.. is barred by the
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`omnibus Workers’ Compensation Act of 1996 enacted on September 10, 1996.
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`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
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`That this defendant sold the products of reputable manufacturers and thus acted
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`70.
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`reasonably in relying on the skill and expertise of said manufacturers.
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`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
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`That defendant asserts that the law of another state may apply and defendant reserves
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`71.
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`the right to assert a defense based upon that state’s law, and/or maritime law.
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`WHEREFORE, defendant, DOMCO PRODUCTS TEXAS INC., demands judgment
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`dismissing the Complaint of the plaintiffs herein as to said defendant, together with the costs and
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`disbursements of this action.
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`Dated: New York, New York
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`December 18, 2023
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`TO: Belluck & Fox
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`Attorneys for Plaintiff
`546 Fifth Ave – 5th Floor
`New York, NY 10036
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`Yours, etc.,
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`BARRY McTIERNAN & MOORE LLC
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`___________________________________
`Suzanne M. Halbardier
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`Attorneys for Defendant
`DOMCO PRODUCTS TEXAS INC.
`101 Greenwich Street, 14th Floor
`New York, NY 10006
`(212) 313-3600
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`FILED: ERIE COUNTY CLERK 12/20/2023 09:17 AM
`NYSCEF DOC. NO. 9
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/20/2023
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`VERIFICATION
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`STATE OF NEW YORK
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`COUNTY OF NEW YORK )
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`SUZANNE M. HALBARDIER, being duly sworn, deposes and says that I am the
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`attorney for the defendant, DOMCO PRODUCTS TEXAS INC.; I have read the foregoing
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`Verified Answer to Verified Complaint and it is true to the best of my knowledge, except to
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`those matters stated to be alleged on information and belief, and to those matters I believe them
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`to be true.
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`Deponent further states that the grounds of my belief as to the matters stated on
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`information and belief are derived from admissions of the defendant to the deponent and the
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`reason that this verification is not made by the defendant is that defendant lives outside of this
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`County.
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`Dated: New York, New York
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`December 18, 2023
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`________________________________
`SUZANNE M. HALBARDIER, ESQ.
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`13 of 13
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