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`NYSCEF DOC. NO. 19
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`INDEX NO. 190011/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
` X
`
` DENNIS KILKENNY AND PATRICIA KILKENNY,
` Plaintiffs,
`v.
`
`AII ACQUISITION, LLC,
` Defendants.
`
`
`Index No. 190011/2024
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`VERIFIED ANSWER TO
`PLAINTIFFS’ VERIFIED
`COMPLAINT, CROSS-
`CLAIM AND ANSWER TO
`CROSS-CLAIMS OF IMO
`INDUSTRIES INC.
`
`
`
`
`X
`Defendant Imo Industries Inc, sued incorrectly as IMO INDUSTRIES INC. ind.
`and as suc to DELAVAL TURBINE, TRANSAMERICA DELAVAL AND IMO DELAVAL”,
`hereinafter (“Imo”), by its attorneys Leader Berkon Colao & Silverstein LLP, hereby answers the
`Verified Complaint (hereinafter “Complaint”) filed on January 9, 2024, as follows:
`1.
`Imo denies knowledge or information sufficient to form a belief as to the
`truth of the allegations contained in paragraph 1 of the Complaint.
`
`2.
`Imo denies the allegations contained in paragraph 2 of the Complaint
`insofar as they are directed against Imo, except admits that it has conducted business in the City
`and the State of New York and otherwise denies knowledge or information sufficient to form a
`belief as to the truth of the allegations contained in paragraph 2 of the Complaint.
`3. Imo denies the truth of the allegations contained in paragraphs 3 through 7
`of the Complaint insofar as they are directed against Imo, and otherwise denies knowledge or
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 3
`through 7 of the Complaint and refers all questions of law to the Court.
`
`
`4.
`Imo denies knowledge or information sufficient to form a belief as to the
`truth of the allegations contained in paragraphs 8 through 9 of the Complaint.
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`FIRST CAUSE OF ACTION
`With regard to the unnumbered paragraph under the section labeled
`5.
`“FIRST CAUSE OF ACTION”, Imo repeats, reiterates and realleges each and every response as
`to paragraphs 1 through 9 of the Complaint as if more fully set forth herein.
`6. Imo denies the truth of the allegations contained in paragraphs 10 through
`35 (inclusive) of the Complaint, including all sub-parts therein, insofar as they are directed
`against Imo, and otherwise denies knowledge or information sufficient to form a belief as to the
`truth of the allegations contained in paragraphs 10 through 35 of the Complaint.
`SECOND CAUSE OF ACTION
`With regard to the unnumbered paragraph under the section labeled
`7.
`“SECOND CAUSE OF ACTION”, Imo repeats, reiterates and realleges each and every response
`as to paragraphs 1 through 35 of the Complaint as if more fully set forth herein.
`8. Imo denies the truth of the allegations contained in paragraph (inclusive) of
`the Complaint, insofar as they are directed against Imo, and otherwise denies knowledge or
`information sufficient to form a belief as to the truth of the allegations contained in 36 through
`39 of the Complaint.
`
`THIRD CAUSE OF ACTION
`With regard to the unnumbered paragraph under the section labeled
`9.
`“THIRD CAUSE OF ACTION”, Imo repeats, reiterates and realleges each and every response as
`to paragraphs 1 through 39 of the Complaint as if more fully set forth herein.
`10. Imo denies the truth of the allegations contained in paragraphs 40 and 41 of
`the Complaint, insofar as they are directed against Imo, and otherwise denies knowledge or
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs
`40 and 41 of the Complaint and refers all questions of law to the Court.
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`FILED: NEW YORK COUNTY CLERK 02/06/2024 03:13 PM
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`FOURTH CAUSE OF ACTION
`11. With regard to paragraph 42 of the complaint, Imo repeats, reiterates and
`realleges each and every response as to paragraphs 1 through 41 of the Complaint as if more
`fully set forth herein.
`12. Imo denies knowledge or information sufficient to form a
`belief as to the truth of the allegations contained in paragraphs 43 through 68 of the Complaint,
`including all sub-parts, as these allegations do not pertain to it.
`FIFTH CAUSE OF ACTION
` With regard to paragraph 69 of the Complaint, Imo repeats, reiterates and
`13.
`realleges each and every response as to paragraphs 1 through 68 of the Complaint as if more
`fully set forth herein.
`14. Imo denies knowledge or information sufficient to form a belief as to the
`truth of the allegations contained in paragraphs 70 through 82 of the Complaint, as these
`allegations do not pertain to it.
`
`SIXTH CAUSE OF ACTION
`15. With regard to paragraph 83 of the Complaint, Imo repeats, reiterates and
`realleges each and every response as to paragraphs 1 through 82 of the Complaint as if more
`fully set forth herein.
`16. Imo denies knowledge or information sufficient to form a belief as to the
`truth of the allegations contained in paragraphs 84 through 92 of the Complaint, as these
`allegations do not pertain to it.
`17. Imo denies the truth of the allegations contained in paragraphs 93 through
`98 of the Complaint, insofar as they are directed against Imo, and otherwise denies knowledge or
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs
`93 through 98 of the Complaint and refers all questions of law to the Court.
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`SEVENTH CAUSE OF ACTION
`18. With regard to the unnumbered paragraph under the section labeled
`“SEVENTH CAUSE OF ACTION”, Imo repeats, reiterates and realleges each and every
`response as to paragraphs 1 through 98 of the Complaint as if more fully set forth herein.
`19. Imo denies the truth of the allegations contained in paragraph
`99 of the Complaint.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`The Complaint fails to state a cause of action upon which relief can be
`
`20.
`granted against Imo.
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`Plantiffs’ claims are time barred by reason of the applicable statute(s) of
`
`21.
`
`
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`limitations.
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`22.
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`23.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`Plantiffs’ claims are barred by the operation of the doctrine of estoppel.
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`Plaintiff has waived all claims against Imo.
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`This Court lacks both general and specific personal jurisdiction over Imo.
`24.
`Imo further objects to and denies an exercise of general jurisdiction over it, notwithstanding any
`Plaintiff’ allegations in the complaint purporting to establish a basis for general jurisdiction (see,
`e.g., Daimler AG v. Bauman, 571 U.S. 117 (2014); BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549
`(2017); Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., S.F. Cty, 137 S.Ct. 1773 (2017); cf.,
`Gibson v. Air & Liquid Sys. Corp., 173 AD3d 519 [1st Dept., 2019]).
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`The venue of this action is improper.
`
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`25.
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`26.
`collateral estoppel.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`Plantiffs’ claims are barred by the doctrines of res judicata and/or
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`Plantiffs’ speculative, uncertain and/or contingent damages have not
`27.
`accrued and are not recoverable.
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`This cause of action must be dismissed in the event Plaintiff has another
`28.
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`
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`action pending against Imo for the same cause of action in another court.
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`In the event Plaintiff executed a settlement agreement releasing and
`29.
`discharging Imo from all claims arising out of Plantiffs’ alleged injury, all claims alleged by
`Plaintiff should be dismissed.
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`30.
`To the extent that Plaintiff has given a release or covenant not to sue or
`not to enforce a judgment to an alleged co-tortfeasor of Imo, Plantiffs’ claim herein is reduced to
`the extent of any amount stipulated by the release or covenant, in the amount of the consideration
`paid for it, or in the amount of the released tortfeasor’s equitable share of the damages,
`whichever is greater.
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`Plaintiff was not injured by exposure to Imo’s products.
`31.
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`32.
`In the event that Plaintiff was employed by any of the Defendants,
`Plantiffs’ sole and exclusive remedy is under the Worker’s Compensation Law of the State of
`New York.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`33.
`Insofar as the Complaint, and each cause of action considered separately,
`alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal
`injuries, the amount of damages recoverable thereon must be diminished by reason of the
`culpable conduct attributable to 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.
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`34.
`Insofar as the Complaint, and each cause of action considered separately,
`alleges a cause of action accruing on or after September 1, 1975 each such cause of action is
`barred by reason of the culpable conduct attributable to Plaintiff, including contributory
`negligence and assumption of risk.
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`35.
`To the extent that Plaintiff was injured as alleged in the Complaint, which
`Imo denies, said injury was proximately caused by the negligence, breach of warranty and/or
`strict liability of persons and/or entities other than Imo.
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`36.
`To the extent that Plaintiff was injured as alleged in the Complaint, which
`Imo denies, such injury was the result of intervening and/or superseding acts or omissions of
`parties over whom Imo had no control or right to control.
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`37.
`At all times relevant hereto, the knowledge of Plantiffs’ employer(s) was
`superior to that of Imo with respect to possible health hazards associated with Plantiffs’
`employment, and, therefore, if there was any duty to warn or provide protection to Plaintiff, it
`was the duty of said employer, not of Imo, and breach of that duty was an intervening and/or
`superseding cause of the injuries allegedly sustained by Plaintiff.
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`38.
`At all times during the conduct of their corporate operations, the agents,
`servants and/or employees of Imo used proper methods in their production activities in
`conformity to the available knowledge and research of the scientific and industrial communities.
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`39.
`To the extent that Plaintiff sustained injuries from the use of Imo products,
`which Imo denies, such injuries resulted from the unforeseeable misuse, abuse, alteration,
`modification, and/or unauthorized handling of the product by Plaintiff, or by third-parties, over
`whom Imo had no control or right to control.
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`40.
`Plaintiff voluntarily assumed the risks associated with the use of or
`exposure to the products at issue.
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`41.
`Imo had no knowledge or reason to know of any alleged risks associated
`with finished asbestos-containing products at any time during the purported peril complained of
`in the Complaint.
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`42.
`Plaintiff contributed to the injuries alleged by the use of other substances,
`products, medications and drugs.
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`43.
`As to all causes of action pleaded in the Complaint which are based upon
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`expressed or implied representations, such causes of action are legally insufficient as against Imo
`as there was no privity of contract between Plaintiff and Imo.
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`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`44.
`Plaintiff never purchased, directly or indirectly, any asbestos-containing
`product or materials from Imo, nor did Plaintiff ever receive or rely upon any representation
`allegedly made by Imo.
`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`45.
`To the extent that Plaintiff was exposed to any product manufactured by
`Imo, which Imo denies, said exposure was de minimis and not a substantial contributing factor to
`any asbestos-related disease which Plaintiff may have developed, thus requiring dismissal of the
`Complaint against Imo.
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`46.
`Plantiffs’ claims are barred because of Plantiffs’ failure to join necessary
`and indispensable parties.
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`47.
`To the extent that Plaintiff is entitled to damages, which Imo denies, Imo
`is entitled to a set-off for all Workers’ Compensation payments received by Plaintiff.
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`48.
`In accordance with CPLR 1601, Imo’s liability for non-economic loss is
`limited to its equitable share of the total liability for non-economic loss.
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`In accordance with CPLR 4545(c), Imo is entitled to a set-off for any past
`49.
`or future costs or expenses incurred or to be incurred by Plaintiff for medical care, custodial care
`of rehabilitation services, loss of earnings 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.
` AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`50.
`Plantiffs’ action is barred by the government contractor’s defense because
`Imo was a contractor supplying materials, labor and or services to the United States Government.
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`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`51.
`At all relevant times, the state of the medical, scientific, and industrial
`knowledge, the state of the art, practice, and prevailing industry standards regarding asbestos-
`containing products was such that Imo neither knew, had reason to know, nor could have known
`of any foreseeable or significant risk or harm to Plaintiff in the normal or expected use of Imo’s
`products.
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`52.
`Any injuries sustained by Plaintiff resulted from Plantiffs’ alleged use of or
`exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance
`with mandatory specifications established by persons or entities other than Imo, including,
`without limitation, agencies, agents and departments of the United States, which persons or
`entities possessed, at the time of such manufacture or sale, knowledge equal to or greater than that
`of Imo concerning the properties and characteristics of asbestos and asbestos-containing products.
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`53.
`Any asbestos-containing Imo products were supplied according to the
`purchaser’s or user’s specifications and standards.
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`54.
`Imo was under no legal duty to warn Plaintiff of any hazards from the use
`of any asbestos-containing products. The actual purchasers and/or those under the purchasers’
`control, Plantiffs’ employer(s), and the owners and lessors of the properties at which Plaintiff
`alleges exposure to such products, were in a far better position to warn Plaintiff and, if any such
`warning was legally required, which is expressly denied; their failure to do so was a superseding
`and proximate cause of Plantiffs’ alleged injury.
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`55.
`Plaintiff was reasonably and adequately warned of any alleged risks
`associated with the use of or exposure to asbestos-containing products.
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`of warranty.
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`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`56.
`Timely and/or proper notice was not given to Imo as to any alleged breach
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`57.
`To the extent Plantiffs’ claims are based on an alleged breach of warranty,
`Plaintiff did not rely on any warranty.
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`58.
`Any oral warranties upon which Plaintiff allegedly relied are inadmissable
`under the Statute of Frauds.
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`
`59.
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`Any claims by Plaintiff for exemplary and/or punitive damages are barred
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`because such damages are not recoverable or warranted.
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`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`60.
`Imo’s conduct was not reckless, malicious, willful or grossly negligent,
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`and consequently, Plaintiff is not entitled to exemplary and/or punitive damages.
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`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`61.
`All defenses which have been or will be asserted by other Defendants in
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`this action are adopted and incorporated by reference as if fully set forth herein. In addition, Imo
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`will rely upon any and all other further defenses which become available or appear during
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`discovery in this action and hereby specifically reserves its right to amend its answer for the
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`purpose of asserting any such additional affirmative defenses.
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`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
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`62.
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`This action does not fall within one or more of the exceptions set forth in
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`CPLR§ 1602 and Imo is responsible only for its allocated share of any verdict that may be
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`rendered against it.
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` AS AND FOR A CROSS-CLAIM
`AGAINST EACH OF THE OTHER DEFENDANTS
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`If damages were sustained at the time(s) and place(s) set forth in the
`63.
`Complaint through any carelessness, recklessness and/or negligence other than that of Plaintiffs,
`including, but not limited to, the manufacture and distribution of asbestos-containing products,
`breach of warranty or misrepresentations, either express or implied, and/or through strict liability
`in tort, such damages, in whole or in part, will have been caused and brought about by reason of
`the carelessness, recklessness and/or negligence of each of the other defendants named in this
`action.
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`If Plaintiff should recover a judgment against Imo, by operation of law or
`64.
`otherwise, Imo will be entitled to judgment, contribution and/or indemnification, in whole or in
`part, from each of the other defendants named in this action, their agents, servants and/or
`employees, by reason of their carelessness, recklessness, and/or negligence for the amount of any
`such recovery, 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.
`WHEREFORE, Defendant Imo demands judgment dismissing the Complaint as
`to it, together with the costs and disbursements of this action, and, to the extent of any recovery
`by Plaintiffs against Imo herein, further demands judgment for contribution and/or
`indemnification against each of the other defendants named in the Complaint, together with
`Imo’s costs and disbursements in this action.
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`ANSWER TO ALL CROSS-CLAIMS
`Imo hereby answers the cross-claims of each of the other defendants and any
`third-party defendants named in this action, however asserted or alleged, and says:
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`65.
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`All cross-claims for contribution alleged against Imo by any party
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`defendant or third-party defendant are denied.
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`66.
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`All cross-claims for indemnification alleged against Imo by any party
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`defendant or third-party defendant are denied.
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`67.
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`All cross-claims for contractual indemnification alleged against Imo by
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`any party defendant or third-party defendant are denied.
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`WHEREFORE, Defendant Imo demands judgment in its favor and against all
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`other defendants and requests the Court to dismiss all cross-claims filed against Imo with
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`prejudice and award Imo its costs, attorneys’ fees and disbursements in this action.
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`Dated: New York, New York
`February 6, 2024
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`LEADER BERKON COLAO
`& SILVERSTEIN LLP
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`by: /s/ David J. Goodearl
` DAVID J. GOODEARL
`
` Attorneys for Defendant
`
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` Imo Industries Inc.
` 630 Third Avenue
` New York, New York 10017
` (212) 486-2400
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`STATE OF NEW YORK
`) SS:
`COUNTY OF NEW YORK )
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`VERIFICATION
`
`David J. Goodearl, being duly sworn, deposes and says that I am associated with
`the firm of Leader Berkon Colao & Silverstein LLP, having their offices at 630 Third Avenue, in
`the City, County and State of New York, attorneys for defendant Imo Industries Inc. in the
`within action; that I have read the foregoing Verified Answer to Plaintiffs’ Verified Complaint,
`Cross-Claims and Answer to Cross-Claims of Imo Industries Inc. and know the contents thereof;
`that the same is true upon information and belief and I believe it to be true; that the grounds of
`my belief are public records, records and documents currently in my possession pertaining to this
`matter, and conversations with client’s agents; and that the reason why this verification is made
`by me and not by said defendant is that said defendant’s principal place of business is in
`Maryland which is located outside New York County where Leader Berkon Colao & Silverstein
`LLP maintains its offices.
`The undersigned affirms that the foregoing statements are true, under the penalties
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`of perjury.
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`Dated: February 6, 2024
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` by: /s/ David J. Goodearl
` DAVID J. GOODEARL
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