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