FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`INDEX NO. 190011/2024
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`ACKNOWLEDGMENT
`OF SERVICE OF
`SUMMONS AND
`ANSWER TO VERIFIED
`COMPLAINT
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`THIS DOCUMENT RELATES TO:
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`DENNIS KILKENNY and PATRICIA KILKENNY
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`Plaintiffs,
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`ALL ACQUISITION, LLC F/K/A ALL ACQUISITION:
`CORP., F/K/A ATHLONE INDUSTRIES, INC.,
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`F/K/A HOLLAND FURNACE COMPANY et al.,
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`Defendants.
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`Defendant Dunphey Smith Supply, incorrectly named as Dunphey Smith Company,
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`(hereinafter “Dunphey” or “Answering Defendant”), by and through its attorneys Wilbraham,
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`Lawler & Buba, P.C., hereby acknowledges receipt of the Summons and Verified Complaint in
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`this action, and answers Plaintiff(s)’ Complaint as follows:
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`1.
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`Answering Defendant is without knowledge or information sufficient to form a
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`belief as to the truth of the allegations and leaves the plaintiff(s) to their proofs.
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`2.
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`Defendant Dunphey only admits that it is a corporation, but denies it conducts
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`business in the State of New York, and denies all other allegations, refers all questions of law to
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`the Court, and demands that plaintiff(s) prove the truth of these allegations at trial. As for the
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`allegations concerning other defendants, this defendant is without knowledge or information
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`sufficient to form a belief as to the truth of the allegations and leaves the plaintiff(s) to their
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`proofs.
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`3.
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`Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`4.
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`Answering Defendant is without knowledge or information sufficient to form a
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`belief as to the truth of the allegations and leaves the plaintiff(s) to their proofs.
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`5.
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`Answering Defendant is without knowledge or information sufficient to form a
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`belief as to the truth of the allegations and leaves the plaintiff(s) to their proofs.
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`6.
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`Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`7.
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`Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`8-9. Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`ANSWER TO FIRST CAUSE OF ACTION
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`Defendant Dunphey incorporates by reference the preceding paragraphs as though stated
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`fully herein.
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`10-35. Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`WHEREFORE, Defendant Dunphey hereby demands judgment and costs in its favor
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`and against plaintiffs and requests dismissal of the Complaint and crossclaims with prejudice.
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`ANSWER TO SECOND CAUSE OF ACTION
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`Defendant Dunphey incorporates by reference the preceding paragraphs as though stated
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`fully herein.
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`36-39. Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`WHEREFORE, Defendant Dunphey hereby demands judgment and costs in its favor
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`and against plaintiffs and requests dismissal of the Complaint and crossclaims with prejudice.
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`ANSWER TO THIRD CAUSE OF ACTION
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`Defendant Dunphey incorporates by reference the preceding paragraphs as though stated
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`fully herein.
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`40-41. Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`WHEREFORE, Defendant Dunphey hereby demands judgment and costs in its favor
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`and against plaintiffs and requests dismissal of the Complaint and crossclaims with prejudice.
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`ANSWER TO FOURTH CAUSE OF ACTION
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`Defendant Dunphey incorporates by reference the preceding paragraphs as though stated
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`fully herein.
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`42-68. Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`3 of 12
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`WHEREFORE, Defendant Dunphey hereby demands judgment and costs in its favor
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`and against plaintiffs and requests dismissal of the Complaint and crossclaims with prejudice.
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`ANSWER TO FIFTH CAUSE OF ACTION
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`Defendant Dunphey incorporates by reference the preceding paragraphs as though stated
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`fully herein.
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`69-82. Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`WHEREFORE, Defendant Dunphey hereby demands judgment and costs in its favor
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`and against plaintiff and requests dismissal of the Complaint and crossclaims with prejudice.
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`ANSWER TO SIXTH CAUSE OF ACTION
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`Defendant Dunphey incorporates by reference the preceding paragraphs as though stated
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`fully herein.
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`83-98. The allegations contained in paragraphs 83 through 98 are directed to premise
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`owners and thus no response is required as to Dunphey. To the extent a response is required,
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`Answering Defendant denies all allegations to the extent they are directed to Dunphey, and this
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`defendant is without knowledge or information sufficient to form a belief as to the truth of these
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`allegations to the extent they are related to parties other than Dunphey and on that basis denies
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`them.
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` By way of further response, Defendant Dunphey denies it is a Premise Owner as defined
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`in this cause of action.
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`WHEREFORE, Defendant Dunphey hereby demands judgment and costs in its favor
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`and against plaintiff and requests dismissal of the Complaint and crossclaims with prejudice.
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`ANSWER TO SEVENTH CAUSE OF ACTION
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`Defendant Dunphey incorporates by reference the preceding paragraphs as though stated
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`fully herein.
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`99. Defendant Dunphey denies all allegations, refers all questions of law to the Court,
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`and demands that plaintiff prove the truth of these allegations at trial. As for the allegations
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`concerning other defendants, this defendant is without knowledge or information sufficient to
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`form a belief as to the truth of these allegations.
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`WHEREFORE, Defendant Dunphey hereby demands judgment and costs in its favor
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`and against Plaintiffs and requests dismissal of the Complaint and crossclaims with prejudice.
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`FIRST AFFIRMATIVE DEFENSE
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`The Complaint fails to state a claim upon which relief may be granted.
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`SECOND AFFIRMATIVE DEFENSE
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`This defendant acted reasonably and with due cares toward the plaintiff(s) and violated
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`no duty owed to the plaintiff(s).
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`THIRD AFFIRMATIVE DEFENSE
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`The injuries and damages complained of were the proximate result of the negligence of
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`third parties over whom this defendant had no control or right of control.
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`FOURTH AFFIRMATIVE DEFENSE
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`This defendant denies that it was guilty of any negligence or breach of warranty which
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`directly caused or proximately contributed to plaintiff(s)’ alleged damages.
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`FIFTH AFFIRMATIVE DEFENSE
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`The alleged injuries and damages were the result of the plaintiff(s)’ sole negligence.
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`SIXTH AFFIRMATIVE DEFENSE
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`The plaintiff(s)’ contributory negligence was greater than the negligence of the answering
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`defendant. In the event that such contributory negligence is adjudged not to be greater than the
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`negligence of answering defendant, the plaintiff(s)’ damages shall be diminished by the
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`percentage of plaintiff(s)’ contributory negligence.
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`SEVENTH AFFIRMATIVE DEFENSE
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`The Court lacks jurisdiction over this defendant.
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`EIGHTH AFFIRMATIVE DEFENSE
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`The Court lacks jurisdiction over the subject matter of this action.
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`NINTH AFFIRMATIVE DEFENSE
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`The venue of this action is improper, and this defendant reserves the right to move for a
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`transfer.
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`TENTH AFFIRMATIVE DEFENSE
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`The Statute of Limitations and/or Statute of Repose bars plaintiff(s)’ action, and
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`accordingly, this defendant reserves the right to move for dismissal at or before trial.
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`ELEVENTH AFFIRMATIVE DEFENSE
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`This defendant denies breach of any warranties, expressed or implied.
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`TWELFTH AFFIRMATIVE DEFENSE
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`The plaintiff(s) had full knowledge of all facts, circumstances and conditions existing
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`with respect to the use of any product mentioned in the Complaint and voluntarily assumed the
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`risk from and attendant to the use of products manufactured or supplied by this defendant.
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`THIRTEENTH AFFIRMATIVE DEFENSE
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`This defendant is not liable to the plaintiff(s) in strict liability in tort.
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`FOURTEENTH AFFIRMATIVE DEFENSE
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`The plaintiff(s) consented to the acts alleged in the Complaint.
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`FIFTEENTH AFFIRMATIVE DEFENSE
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`Since plaintiff(s)’ employers are primarily liable for plaintiff(s)’ current injuries and
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`plaintiff (s) brought or have the right to bring an action for workmen's compensation benefits,
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`plaintiff(s)’ damages, if any, are barred by the exclusive remedial provisions under the workers'
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`compensation law and other applicable state laws. In the alternative, the damages should at least
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`be reduced by the amount of compensation received from the plaintiff(s)’ employers.
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`SIXTEENTH AFFIRMATIVE DEFENSE
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`The incident and injuries complained of were caused by unauthorized, unintended and
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`improper use of the products complained of and as a result of plaintiff(s)’ failure to exercise
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`reasonable and ordinary care, caution or vigilance.
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`SEVENTEENTH AFFIRMATIVE DEFENSE
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`Plaintiff(s)’ injuries and damages were caused by the superseding and intervening acts or
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`the fault of other parties over whom this defendant had no control and for whose actions this
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`defendant is not liable.
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`EIGHTEENTH AFFIRMATIVE DEFENSE
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`The plaintiff(s)’ action is barred by the Doctrine of Laches.
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`NINETEENTH AFFIRMATIVE DEFENSE
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`This defendant never designed, manufactured, sold, or distributed a defective product
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`which caused plaintiff(s)’ damages.
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`TWENTIETH AFFIRMATIVE DEFENSE
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`Inasmuch as the plaintiff(s) are unable to identify the manufacturer of the product that
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`allegedly caused his injuries, plaintiff(s) fail to state a claim upon which relief can be granted. If
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`relief were granted in the absence of product identification, it would contravene with defendant's
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`constitutional rights to substantive and procedural due process of law and equal protection, as
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`well as defendant's constitutional rights to protection against the taking of private property for
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`public use without just compensation as preserved by the Fourteenth Amendment of the United
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`States Constitution.
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`TWENTY-FIRST AFFIRMATIVE DEFENSE
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`The applicable provisions of the Uniform Commercial Code bar the alleged claims.
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`TWENTY-SECOND AFFIRMATIVE DEFENSE
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`At all times relevant hereto, this defendant followed plans, specifications and contracts
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`set by a governmental body and did not deviate from said plans, contracts and specifications,
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`therefore, its actions are cloaked with immunity.
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`TWENTY-THIRD AFFIRMATIVE DEFENSE
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`At all times relevant hereto, this defendant complied with all applicable laws, regulations,
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`and standards.
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`TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`The plaintiff(s)’ alleged injuries were caused in whole or in part by the misuse, abuse
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`and/or unauthorized alteration of this defendant or other defendant’s products.
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`TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`All oral warranties upon which plaintiff(s) allegedly relied upon are inadmissible and
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`unavailable due to the applicable statute of frauds.
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`TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`Plaintiff(s)’ claim for punitive damages is barred by the proscription of the Eighth
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`Amendment to the United States Constitution, as applied to the States through the Fourteenth
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`Amendment, prohibiting the imposition of excessive fines.
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`TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`Plaintiff(s)’ claim for punitive damages are barred by the “double jeopardy” clause of the
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`Fifth Amendment to the United States Constitution, as applied to the States through the
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`Fourteenth Amendment.
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`TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`The plaintiff(s)’ action is barred by the doctrine of estoppel and waiver.
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`TWENTY-NINTH AFFIRMATIVE DEFENSE
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`Plaintiff(s)’ claim for punitive damages is barred by the Due Process clause of the
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`Fourteenth Amendment to the United States Constitution and by the New York State
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`Constitution.
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`THIRTIETH AFFIRMATIVE DEFENSE
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`Any benefit or other compensation received by plaintiff(s) from any other defendants or
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`any collateral source, including workers compensation, social security death benefits and/or
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`insurance, should reduce or set off the amount of any judgment against this defendant.
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`THIRTY-FIRST AFFIRMATIVE DEFENSE
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`Plaintiff(s) failed to mitigate or reduce his/her alleged injuries.
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`THIRTY-SECOND AFFIRMATIVE DEFENSE
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`All causes of action based on expressed or implied warranties are legally insufficient
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`since plaintiff(s) failed to allege privity of contract between plaintiffs and answering defendant.
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`THIRTY-THIRD AFFIRMATIVE DEFENSE
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`Any asbestos exposure from this defendant's products are so minimal that there is
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`insufficient evidence that this defendant's products caused plaintiff(s)’ alleged injuries.
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`THIRTY-FOURTH AFFIRMATIVE DEFENSE
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`Even if plaintiff(s) can establish a breach of warranty, plaintiff(s) failed to provide
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`prompt and proper notice of said breach of warranty to the answering defendant.
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`THIRTY-FIFTH AFFIRMATIVE DEFENSE
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`Plaintiff(s) did not directly or indirectly purchase any asbestos-containing products from
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`this defendant. Therefore, plaintiff(s) neither received nor relied upon any representation or
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`warranty allegedly made regarding this defendant's products.
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`THIRTY-SIXTH AFFIRMATIVE DEFENSE
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`Plaintiff(s)’ claims are barred by the doctrine of res judicata.
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`THIRTY-SEVENTH AFFIRMATIVE DEFENSE
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`The answering defendants incorporates and adopts all affirmative defenses raised and
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`plead by any other defendants except such defenses which refer to this answering defendant.
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`Additionally, defendant specifically reserves the right to amend this answer and assert any
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`additional defenses that might become available as discovery continues.
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`CROSSCLAIMS
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`1.
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`This defendant demands contribution, jointly and severally, from all other
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`defendants, potential defendants, and potential third-party defendant.
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`2.
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`This defendant denies any liability whatsoever to the plaintiff(s), but asserts that if
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`it is in any way found to be liable, such liability is passive, indirect and secondary, and
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`answering defendant hereby demands indemnification from all responsible and liable co-
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`defendants.
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`WHEREFORE, Defendant Dunphey hereby demands judgment in its favor and against
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`all other defendants, potential defendants and potential third-party defendants for contribution
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`and indemnification.
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`ANSWER TO CROSSCLAIMS
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`This defendant denies all allegations of all crossclaims asserted against Dunphey, which
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`have been filed or hereafter to be filed by any and all co-defendants in this matter.
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/13/2024
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`WHEREFORE, Defendant Dunphey hereby demands judgment in its favor and against
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`all other defendants and requests that the Court dismiss all crossclaims filed against this
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`defendant with prejudice.
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`DEMAND FOR JURY TRIAL
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`The answering defendant hereby demands a trial by jury as to all issues.
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`DESIGNATION OF TRIAL COUNSEL
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`David C. Weinberg, Esquire, is hereby designated as trial counsel in this matter.
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`WHEREFORE, Defendant Dunphey hereby demands judgment and costs in its favor
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`and against plaintiff(s) and requests dismissal of the Complaint and crossclaims with prejudice.
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`New York, New York
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`Date: February 13, 2024
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`Respectfully submitted,
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`WILBRAHAM, LAWLER & BUBA
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`/s/ David C. Weinberg
`By:
`David C. Weinberg, Esquire.
`Attorney for Defendant,
`Dunphey Smith Company
`140 Broadway, 46th Floor
`New York, NY 10005
`(212) 943-9245
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`11 of 12
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`FILED: NEW YORK COUNTY CLERK 02/13/2024 01:01 PM
`NYSCEF DOC. NO. 24
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`INDEX NO. 190011/2024
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`The undersigned affirms the following statement to be true under penalties of perjury
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`VERIFICATION
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`pursuant to Rule 2106 of the Civil Practice Law and Rules.
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`That he is duly admitted to practice law in the State of New York and is a member of the
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`law firm of Wilbraham Lawler & Buba, attorneys for defendant, Dunphey Smith Supply,
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`incorrectly named as Dunphey smith Company.
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`That he has read the foregoing document and knows the content thereof, and that the same
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`is true to the knowledge of you except as to the matters therein alleged upon information and belief
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`and that as to those matters he believes them to be true.
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`That the reason why this affirmation is being made by affirmant and not the defendant is
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`that the defendant does not maintain an office in the county where affirmant maintains his offices.
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`That the source of deponent’s information and the grounds of his belief as to all the matters
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`therein alleged upon information and belief are reports from and communications had with said
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`defendants.
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`Date: February 13, 2024
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`Respectfully submitted,
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`WILBRAHAM, LAWLER & BUBA
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`/s/ David C. Weinberg
`By:
`David C. Weinberg, Esquire.
`Attorney for Defendant,
`Dunphey Smith Company
`140 Broadway, 46th Floor
`New York, NY 10005
`(212) 943-9245
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`12 of 12
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