FILED: NEW YORK COUNTY CLERK 02/16/2024 06:25 AM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/16/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`--------------------------------------------------------------------x
`DENNIS KILKENNY and PATRICIA KILKENNY,
`
` Plaintiffs,
`
`
`
`
`- against –
`
`
`AII ACQUISITION, LLC, F/K/A AII
`ACQUISITION CORP., F/K/A ATHLONE
`INDUSTRIES, INC., F/K/A HOLLAND
`FURNACE COMPANY, et al.,
`
`
` Defendants.
`--------------------------------------------------------------------x
`
`VERIFIED
`ANSWER TO
`VERIFIED
`FIRST
`AMENDED
`COMPLAINT
`
`Index No. 190011/2024
`
`Defendant, BW/IP, INC. AND ITS WHOLLY-OWNED SUBSIDIARIES (incorrectly
`
`named as “BW/IP INTERNATIONAL COMPANY” and “BW/IP INTERNATIONAL
`
`CORPORATION (formerly BORG WARNER INDUSTRIAL PRODUCTS) ind. and as suc. to
`
`SUCCESSOR IN INTEREST TO BYRON JACKSON PUMPS”) (“BW/IP” or “Defendant”) by
`
`its attorneys, Segal McCambridge Singer & Mahoney, Ltd. for its answer to the Verified First
`
`Amended Complaint (the “Complaint”), alleges on information and belief:
`
`1. Denies all material allegations in the Complaint as they pertain to BW/IP.
`
`2. Denies knowledge or information sufficient to form a belief as to the truth
`
`of each and every other allegation contained in the Complaint.
`
`3.
`
`4.
`
`5.
`
`granted.
`
`AFFIRMATIVE DEFENSES
`
`The venue of this action is improper.
`
`The Complaint fails to set forth a cause of action upon which relief can be
`
`This Court lacks personal jurisdiction over BW/IP.
`
`1 of 8
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`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/16/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`--------------------------------------------------------------------x
`DENNIS KILKENNY and PATRICIA KILKENNY,
`
` Plaintiffs,
`
`
`
`
`- against –
`
`
`AII ACQUISITION, LLC, F/K/A AII
`ACQUISITION CORP., F/K/A ATHLONE
`INDUSTRIES, INC., F/K/A HOLLAND
`FURNACE COMPANY, et al.,
`
`
` Defendants.
`--------------------------------------------------------------------x
`
`VERIFIED
`ANSWER TO
`VERIFIED
`FIRST
`AMENDED
`COMPLAINT
`
`Index No. 190011/2024
`
`Defendant, BW/IP, INC. AND ITS WHOLLY-OWNED SUBSIDIARIES (incorrectly
`
`named as “BW/IP INTERNATIONAL COMPANY” and “BW/IP INTERNATIONAL
`
`CORPORATION (formerly BORG WARNER INDUSTRIAL PRODUCTS) ind. and as suc. to
`
`SUCCESSOR IN INTEREST TO BYRON JACKSON PUMPS”) (“BW/IP” or “Defendant”) by
`
`its attorneys, Segal McCambridge Singer & Mahoney, Ltd. for its answer to the Verified First
`
`Amended Complaint (the “Complaint”), alleges on information and belief:
`
`1. Denies all material allegations in the Complaint as they pertain to BW/IP.
`
`2. Denies knowledge or information sufficient to form a belief as to the truth
`
`of each and every other allegation contained in the Complaint.
`
`3.
`
`4.
`
`5.
`
`granted.
`
`AFFIRMATIVE DEFENSES
`
`The venue of this action is improper.
`
`The Complaint fails to set forth a cause of action upon which relief can be
`
`This Court lacks personal jurisdiction over BW/IP.
`
`1 of 8
`
`
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`FILED: NEW YORK COUNTY CLERK 02/16/2024 06:25 AM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/16/2024
`
`Limitations.
`
`6.
`
`7.
`
`Plaintiffs’ causes of action are barred by the applicable Statute of
`
`The Complaint fails to allege any cause of action specific to BW/IP.
`
`8. BW/IP was improperly served with process.
`
`9. All claims against BW/IP have been discontinued by prior release and/or
`
`settlement agreement.
`
`10. BW/IP was not negligent.
`
`11. BW/IP was not reckless.
`
`12. BW/IP did not engage in misconduct or willful misconduct.
`
`13. BW/IP did not act with wanton disregard for the rights, safety, and
`
`position of the Plaintiffs or any other person.
`
`14. BW/IP did not distort or cause to be distorted any medical examinations,
`
`results, or data.
`
`15. BW/IP did not edit or alter medical literature.
`
`16. BW/IP did not attempt to prevent the publication of medical literature.
`
`17. BW/IP did not distort or cause to be distorted medical information.
`
`18. Any asbestos products which may have been sold by BW/IP were not
`
`inherently defective, ultrahazardous, dangerous, deleterious, poisonous, and/or otherwise legally
`
`harmful.
`
`not unsafe.
`
`19. Any asbestos products which may have been sold or used by BW/IP were
`
`20. Any asbestos products which may have been sold or used by BW/IP were
`
`not incorrectly packaged.
`
`2 of 8
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`FILED: NEW YORK COUNTY CLERK 02/16/2024 06:25 AM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/16/2024
`
`21. BW/IP did not fail to adequately test any asbestos products which it might
`
`have sold or used.
`
`22. Any acts or omissions of BW/IP alleged to constitute negligence were not
`
`substantial causative factors of the injuries and/or losses alleged to have been sustained.
`
`23.
`
`The injuries and/or losses alleged to have been sustained were caused
`
`entirely by or contributed to by the negligent acts or omission of individuals and/or entities other
`
`than BW/IP.
`
`24. Any asbestos products which may have been sold or used by BW/IP may
`
`have been substantially changed in their condition after said products left the possession of
`
`BW/IP.
`
`instructions.
`
`25. BW/IP provided all necessary, required, and adequate warnings or
`
`26. Negligent acts and/or omissions of individuals and/or entities other than
`
`BW/IP constituted intervening and/or superseding acts of negligence.
`
`27. BW/IP extended no warranty to the Plaintiffs.
`
`28. BW/IP did not breach any warranty or warranties it may have extended.
`
`29.
`
`Plaintiffs failed to provide BW/IP with proper and timely notice of any
`
`alleged breached warranty.
`
`30. BW/IP did not take part in and was not a part of or party to any
`
`conspiracy.
`
`acts.
`
`31. BW/IP did not make any misrepresentation and/or commit any fraudulent
`
`3 of 8
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`FILED: NEW YORK COUNTY CLERK 02/16/2024 06:25 AM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/16/2024
`
`32. BW/IP did not distribute its products without proper and adequate
`
`identification labeling.
`
`33. Any asbestos products which may have been sold and/or used by BW/IP
`
`were not within the exclusive control of BW/IP.
`
`34. BW/IP entered into no tacit agreement and/or industry-wide standards or
`
`procedures as alleged.
`
`35.
`
`For any plaintiff alleging exposure during United States military service,
`
`U.S. government activity or at any U.S. government-owned premises including any U.S.
`
`government vessel, BW/IP was acting as a government contractor in supplying products to the
`
`U.S. government. The U.S. government approved reasonably precise specifications for the
`
`products supplied by BW/IP. The BW/IP products conformed to those specifications; and the
`
`U.S. government was knowledgeable of any dangers associated with the use of those products.
`
`36.
`
`The imposition of punitive damages violates the Due Process Clause of
`
`the U.S. Constitution and the Constitution of the State of New York.
`
`37.
`
`The imposition of punitive damages violates the Equal Protection Clause
`
`of the U.S. Constitution and the Constitution of the State of New York.
`
`38.
`
`In the event Plaintiffs recover a verdict or judgment against this
`
`Defendant, then said verdict or judgment must be reduced pursuant to CPLR § 4545 by those
`
`amounts which have replaced or indemnified or will, with reasonable certainty, replace or
`
`indemnify Plaintiffs in whole or in part, for any past or future claimed economic loss, from any
`
`collateral source such as insurance, social security, workers’ compensation, or employee benefit
`
`programs.
`
`4 of 8
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`FILED: NEW YORK COUNTY CLERK 02/16/2024 06:25 AM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/16/2024
`
`39.
`
`The imposition of punitive damages violates the U.S. Constitution’s
`
`Eighth Amendment guarantee against excessive fines.
`
`40.
`
`That insofar as the Complaint and each cause of action considered
`
`separately, alleges a cause of action accruing before September 1, 1975, any recovery by
`
`Plaintiffs for each such cause of action is barred by reason of contributory negligence or
`
`assumption of risk of Plaintiffs.
`
`41. All causes of action pleaded in the Complaint have not been maintained in
`
`a timely fashion and Plaintiffs have neglected same and should be barred by the doctrine of
`
`laches.
`
`42. All claims brought under New York Law, L. 1986 C. 682 § 4 (enacted
`
`August 31, 1986) are time-barred in that said statute is in violation of the U.S. Constitution and
`
`the Constitution of the State of New York.
`
`43.
`
`This action must be dismissed because Plaintiffs have not joined necessary
`
`parties to the adjudication of the claims asserted in the Complaint, in whose absence complete
`
`relief cannot be accorded and whose absence impedes the ability of Defendant to protect its
`
`interests.
`
`44.
`
`In the event the allegedly injured Plaintiff was employed by any of the
`
`defendants herein, then Plaintiffs’ sole and exclusive remedy is under the Workers’
`
`Compensation Law of the State of New York.
`
`45.
`
`That at all of the times during the conduct of its corporate operations, the
`
`agents, servants or employees of Defendant utilized proper methods in the conduct of its
`
`operations, in conformity with the available knowledge and research of the scientific and
`
`industrial communities.
`
`5 of 8
`
`
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`FILED: NEW YORK COUNTY CLERK 02/16/2024 06:25 AM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/16/2024
`
`46.
`
`Plaintiffs lack the requisite capacity, standing and authority to bring this
`
`action, as Plaintiffs are not real parties in interest.
`
`47.
`
`That to the extent any plaintiff seeks to maintain causes of action on
`
`behalf of any decedents, said plaintiff lacks capacity and/or standing to maintain such causes of
`
`action against BW/IP.
`
`48.
`
`Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries
`
`alleged in the Complaint.
`
`49.
`
`The damages allegedly sustained by Plaintiffs were caused, in whole or in
`
`part, through the operation of nature.
`
`50. All defenses which have been or will be asserted by other defendants
`
`and/or any defendants in this action, are adopted and incorporated by reference as if fully set
`
`forth at length herein as defenses to the Complaint. In addition, BW/IP will rely upon any and
`
`all other defenses which become available or appear during discovery proceedings in this action
`
`and hereby specifically reserves the right to amend its Answer for the purpose of asserting such
`
`additional affirmative defenses.
`
`51. Any and all risks, hazards, defects and dangers alleged were of an open,
`
`obvious, apparent nature, inherent and known or should have been known to Plaintiffs, and the
`
`injuries and damages alleged to have been sustained were caused in whole or in part by the
`
`culpable conduct of Plaintiffs.
`
`52.
`
`The amounts recoverable by Plaintiffs are subject to limitation pursuant to
`
`CPLR § 1601, by reason of the culpable conduct of other person(s) who are, or with reasonable
`
`diligence could have been made party defendant(s) to this action, or pursuant to General
`
`6 of 8
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`FILED: NEW YORK COUNTY CLERK 02/16/2024 06:25 AM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/16/2024
`
`Obligations Law § 15-108, by reason of a prior settlement between Plaintiffs and said person(s),
`
`or by reason of the fact that punitive damages are not recoverable.
`
`CROSS-CLAIMS
`
`
`
`
`
`53.
`
`Any damages sustained by the Plaintiffs were caused in whole or in part
`
`by the acts or omissions of other defendants, who are or may be liable to BW/IP for contribution
`
`on the basis of their equitable shares of responsibility, or for indemnity on the basis of a contract
`
`between them, actual or implied.
`
`
`
`WHEREFORE, BW/IP demands judgment dismissing the Complaint and all cross-
`
`claims against it, or, in the event that it is adjudged liable, granting judgment over, or
`
`apportioning such liability in accordance with its equitable shares of responsibility, and awarding
`
`the costs of this action, together with such other and further relief as to the Court may seem just.
`
`Dated: New York, NY
`
`February 16, 2024
`
`Yours, etc.
`
`SEGAL McCAMBRIDGE SINGER &
`MAHONEY, LTD.
`Attorneys for Defendant BW/IP, Inc. and
`Its Wholly-Owned Subsidiaries
`777 Third Avenue, Suite 2400
`New York, NY 10017
`(212) 651-7500
`
` By:
`
`
`
`/s/Andrew J. Wells
`ANDREW J. WELLS, Esq.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`To: THE EARLY LAW FIRM, LLC
`360 Lexington Avenue, 20th Floor
`
`
`New York, NY 10017
`
`7 of 8
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`FILED: NEW YORK COUNTY CLERK 02/16/2024 06:25 AM
`NYSCEF DOC. NO. 27
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/16/2024
`
`
`
`V E R I F I C A T I O N
`
`ANDREW J. WELLS, an attorney duly admitted to practice in the Court of the State of New
`
`York and designated as attorney for the defendant BW/IP, INC. AND ITS WHOLLY- OWNED
`
`SUBSIDIARIES (“BW/IP”), in the above-entitled action, affirms the following statements to be true
`
`under the penalties of perjury, pursuant to Rule 2106 of the CPLR:
`
`That he has read the foregoing ANSWER and knows the contents thereof; that the same is true to
`
`his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and
`
`that as to those matters he believes them to be true.
`
`Affiant further says that the source of his information and the grounds of his belief are derived
`
`from the files, books and records maintained in the normal course of business of the Law Offices of
`
`Segal McCambridge Singer & Mahoney, Ltd. and statements made to him by officers or agents of
`
`BW/IP.
`
`This Verification is made by affiant and not by defendant because defendant resides outside the
`
`County of New York where affiant maintains his office.
`
`Dated: New York, NY
`February 16, 2024
`
`
`
`
`
`
`
`
`
` /s/Andrew J. Wells
`ANDREW J. WELLS, Esq.
`SEGAL McCAMBRIDGE SINGER &
`MAHONEY, LTD.
`Attorneys for Defendant BW/IP, Inc. and
`Its Wholly-Owned Subsidiaries
`777 Third Avenue, Suite 2400
`New York, NY 10017
`(212) 651-7500
`
`
`
`
`
`
`
`8 of 8
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