FILED: NEW YORK COUNTY CLERK 02/21/2024 12:07 PM
`NYSCEF DOC. NO. 35
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
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`-
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`against -
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`AII ACQUISITION, LLC, et. al.,
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` Defendants.
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`- -------------------------------------------------------------------- X
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`:
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`In Re: NEW YORK CITY ASBESTOS LITIGATION
`:
`
`
`:
`This Document Relates To:
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`
`:
`- -------------------------------------------------------------------- X
`DENNIS KILKENNY and PATRICIA KILKENNY,
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`
`
`:
`Index No.: 190011/2024
` Plaintiffs,
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`:
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`VERIFIED ANSWER
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`:
`:
`:
`:
`:
`:
`:
`:
`- -------------------------------------------------------------------- X
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`Defendant PROGRESS LIGHTING, INC. n/k/a PROGRESS LIGHTING, LLC (hereinafter
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`“Progress”) by its attorneys, HARRIS BEACH PLLC, for its Answer to plaintiff’s Verified
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`Complaint (the “Complaint”) dated January 9, 2024, states as follows:
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`1.
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`Progress denies any knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in the paragraphs of the Complaint numbered “1,” and refers all
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`questions of law to this Court.
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`2.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “2,” “3,” “5,” “6,” and “7,” refer to other defendants, Progress denies any
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`knowledge or information sufficient to form a belief as to the allegations contained in the
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`paragraphs of the Verified Complaint numbered “2,” “3,” “5,” “6,” and “7,” and refers all matters
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`of law to this Court.
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`3.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “2,” “3,” “5,” “6,” and “7” refer to Progress, Progress denies the allegations
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:07 PM
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`contained in the paragraph of the Verified Complaint numbered “2,” “3,” “5,” “6,” and “7,” except
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`admits that it has “done” or “conducted” business in New York, and refers all matters of law to
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`this Court.
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`4.
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`Progress can neither admit nor deny the allegations contained in the paragraphs
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`numbered “4,” “8,” and “9,” of the Verified Complaint, as such statements are legal conclusions
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`and not allegations of fact. To the extent that Progress is required to provide answers to these
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`allegations, Progress denies the allegations contained in the paragraph numbered “4,” “8,” “9,” of
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`the Verified Complaint, and refers all matters of law to this Court.
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`AS AND FOR AN ANSWER TO PLAINTIFFS’ FIRST CAUSE OF ACTION
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`5.
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`In response to the unnumbered paragraph preceding paragraph “10,” Progress
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`incorporates its responses to paragraphs “1” through “9” as if fully set forth herein.
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`6.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “10,” “11,” “12,” “13,” “14,” “15,” “16,” “19,” “23,” “24,” “25,” “26,” “27,”
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`“28,” “29,” “30,” “31,” “32,” and “33,” and subparts, refer to other defendants, Progress denies
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`any knowledge or information sufficient to form a belief as to the allegations contained in the
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`paragraphs of the Verified Complaint numbered “10,” “11,” “12,” “13,” “14,” “15,” “16,” “19,”
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`“23,” “24,” “25,” “26,” “27,” “28,” “29,” “30,” “31,” “32,” and “33,” and subparts, and refers all
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`matters of law to this Court.
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`7.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “10,” “11,” “12,” “13,” “14,” “15,” “16,” “19,” “23,” “24,” “25,” “26,” “27,”
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`“28,” “29,” “30,” “31,” “32,” and “33,” and subparts, and the “WHEREFORE” paragraph of the
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`First Cause of Action refer to Progress, Progress denies the allegations contained in the paragraphs
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`of the Verified Complaint numbered “10,” “11,” “12,” “13,” “14,” “15,” “16,” “19,” “23,” “24,”
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`“25,” “26,” “27,” “28,” “29,” “30,” “31,” “32,” and “33,” and subparts, and the “WHEREFORE”
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`paragraph of the First Cause of Action, and refers all matters of law to this Court.
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`8.
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`Progress can neither admit nor deny the allegations contained in the paragraphs
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`numbered “17,” and subparts, “34,” and “35,” of the Verified Complaint, as such statements are
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`legal conclusions and not allegations of fact. To the extent that Progress is required to provide
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`answers to these allegations, Progress denies the allegations contained in the paragraph numbered
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`“17,” and subparts, “34,” and “35,” of the Verified Complaint, and refers all matters of law to this
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`Court.
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`9.
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`Progress denies the truth of the allegations contained in the paragraph of the
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`Complaint numbered “18,” “20,” “21,” and “22,” and refers all questions of law to this Court.
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`AS AND FOR AN ANSWER TO PLAINTIFFS’ SECOND CAUSE OF ACTION
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`10.
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`In response to the unnumbered paragraph preceding paragraph “36,” Progress
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`incorporates its responses to paragraphs “1” through “35” as if fully set forth herein.
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`11.
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`Progress can neither admit nor deny the allegations contained in the paragraphs
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`numbered “36,” “37,” “38,” and “39” of the Verified Complaint, as such statements are legal
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`conclusions and not allegations of fact. To the extent that Progress is required to provide answers
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`to these allegations, Progress denies the allegations contained in the paragraph numbered “36,”
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`“37,” “38,” and “39” of the Verified Complaint, and refers all matters of law to this Court.
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`12.
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`To the extent that the allegations contained in the “WHEREFORE” paragraph of
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`the Second Cause of Action refers to Progress, Progress denies the allegations contained in the
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`“WHEREFORE” paragraph of the Second Cause of Action and refers all matters of law to this
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`Court.
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`3
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`AS AND FOR AN ANSWER TO PLAINTIFFS’ THIRD CAUSE OF ACTION
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`13.
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`In response to the unnumbered paragraph preceding paragraph “40,” Progress
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`incorporates its responses to paragraphs “1” through “39” as if fully set forth herein.
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`14.
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`Progress can neither admit nor deny the allegations contained in the paragraphs
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`numbered “40” and “41” of the Verified Complaint, as such statements are legal conclusions and
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`not allegations of fact. To the extent that Progress is required to provide answers to these
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`allegations, Progress denies the allegations contained in the paragraph numbered “40” and “41” of
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`the Verified Complaint, and refers all matters of law to this Court.
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`15.
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`To the extent that the allegations contained in the “WHEREFORE” paragraph of
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`the Third Cause of Action refers to Progress, Progress denies the allegations contained in the
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`“WHEREFORE” paragraph of the Third Cause of Action and refers all matters of law to this Court.
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`AS AND FOR AN ANSWER TO PLAINTIFFS’ FOURTH CAUSE OF ACTION
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`16.
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`In response to the unnumbered paragraph preceding the paragraph numbered “42”
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`and the paragraph numbered “42” of the Verified Complaint, Progress repeats and realleges its
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`answers to the paragraphs numbered “1” through 41” of the Verified Complaint as if fully set forth
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`herein.
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`17.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “43,” “44,” “46,” “47,” “48,” “49,” “50,” “51,” “52,” and subparts, “54,”
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`“58,” “59,” “60,” “61,” “62,” “63,” “64,” ”66,” and “68,” refer to other defendants, Progress denies
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`any knowledge or information sufficient to form a belief as to the allegations contained in the
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`paragraphs of the Verified Complaint numbered “43,” “44,” “46,” “47,” “48,” “49,” “50,” “51,”
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`“52,” and subparts, “54,” “58,” “59,” “60,” “61,” “62,” “63,” “64,” ”66,” and “68,” and refers all
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`matters of law to this Court.
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`18.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “43,” “44,” “46,” “47,” “48,” “49,” “50,” “51,” “52,” and subparts, “54,”
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`“58,” “59,” “60,” “61,” “62,” “63,” “64,” ”66,” “68,” and the “WHEREFORE” paragraph of the
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`Fourth Cause of Action refer to Progress, Progress denies the allegations contained in the
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`paragraphs of the Verified Complaint numbered “43,” “44,” “46,” “47,” “48,” “49,” “50,” “51,”
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`“52,” and subparts, “54,” “58,” “59,” “60,” “61,” “62,” “63,” “64,” ”66,” and “68,” and the
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`“WHEREFORE” paragraph of the Fourth Cause of Action refer to Progress, Progress denies and
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`refers all matters of law to this Court.
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`19.
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`Progress denies the truth of the allegations contained in the paragraph of the
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`Complaint numbered “45,” “53,” and “67,” and refers all questions of law to this Court.
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`20.
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`Progress can neither admit nor deny the allegations contained in the paragraphs
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`numbered “55,” “56,” “57,” and “65,” of the Verified Complaint, as such statements are legal
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`conclusions and not allegations of fact. To the extent that Progress is required to provide answers
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`to these allegations, Progress denies the allegations contained in the paragraph numbered “55,”
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`“56,” “57,” and “65,” of the Verified Complaint, and refers all matters of law to this Court.
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`AS AND FOR AN ANSWER TO PLAINTIFFS’ FIFTH CAUSE OF ACTION
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`21.
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`In response to the unnumbered paragraph preceding the paragraph numbered “69”
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`and paragraph numbered “69” of the Verified Complaint, Progress repeats and realleges its
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`answers to the paragraphs numbered “1” through 68” of the Verified Complaint as if fully set forth
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`herein.
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`22.
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`Progress can neither admit nor deny the allegations contained in the paragraphs
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`numbered “70,” and “82,” of the Verified Complaint, as such statements are legal conclusions and
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`not allegations of fact. To the extent that Progress is required to provide answers to these
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`allegations, Progress denies the allegations contained in the paragraph numbered “70,” and “82,”
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`of the Verified Complaint, and refers all matters of law to this Court.
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`23.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “71,” “72,” “73,” “74,” “75,” “76,” “79,” “80,” and “81,” refer to other
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`defendants, Progress denies any knowledge or information sufficient to form a belief as to the
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`allegations contained in the paragraphs of the Verified Complaint numbered “71,” “72,” “73,”
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`“74,” “75,” “76,” “79,” “80,” and “81,” and refers all matters of law to this Court.
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`24.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “71,” “72,” “73,” “74,” “75,” “76,” “79,” “80,” “81,” and the
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`“WHEREFORE” paragraph of the Fifth Cause of Action refer to Progress, refer to Progress denies
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`the allegations contained in the paragraphs of the Verified Complaint numbered “71,” “72,” “73,”
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`“74,” “75,” “76,” “79,” “80,” “81,” and the “WHEREFORE” paragraph of the Fifth Cause of
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`Action, and refers all matters of law to this Court.
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`25.
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`Progress denies the truth of the allegations contained in the paragraph of the
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`Complaint numbered “77,” and “78,” and refers all questions of law to this Court.
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`AS AND FOR AN ANSWER TO PLAINTIFFS’ SIXTH CAUSE OF ACTION
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`26.
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`In response to the unnumbered paragraph preceding paragraph numbered “83” and
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`paragraph numbered “83” of the Verified Complaint, Progress repeats and realleges its answers to
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`the paragraphs numbered “1” through 82” of the Verified Complaint as if fully set forth herein.
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`27.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “84,” “85,” “86,” “87,” “88,” “89,” “90,” “91,” “92,” “93,” and “95,” refer
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`to other defendants, Progress denies any knowledge or information sufficient to form a belief as
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`to the allegations contained in the paragraphs of the Verified Complaint numbered “84,” “85,”
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`“86,” “87,” “88,” “89,” “90,” “91,” “92,” “93,” and “95,” and refers all matters of law to this Court.
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`28.
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`To the extent that the allegations contained in the paragraphs of the Verified
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`Complaint numbered “84,” “85,” “86,” “87,” “88,” “89,” “90,” “91,” “92,” “93,” “95,” and the
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`“WHEREFORE” paragraph of the Sixth Cause of Action refer to Progress, Progress denies the
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`allegations contained in the paragraphs of the Verified Complaint numbered “84,” “85,” “86,”
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`“87,” “88,” “89,” “90,” “91,” “92,” “93,” “95,” and the “WHEREFORE” paragraph of the Sixth
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`Cause of Action and refers all matters of law to this Court.
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`29.
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`Progress denies the truth of the allegations contained in the paragraph of the
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`Complaint numbered “94,” and “96,” and refers all questions of law to this Court.
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`30.
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`Progress can neither admit nor deny the allegations contained in the paragraphs
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`numbered “97,” and “98,” of the Verified Complaint, as such statements are legal conclusions and
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`not allegations of fact. To the extent that Progress is required to provide answers to these
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`allegations, Progress denies the allegations contained in the paragraph numbered “97,” and “98,”
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`of the Verified Complaint, and refers all matters of law to this Court.
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`31.
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`To the extent that the allegations contained in the ultimate “WHEREFORE”
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`paragraph refer to Progress, Progress denies the allegations contained in the paragraphs of the
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`Verified Complaint in the ultimate “WHEREFORE” paragraph, and refers all matters of law to
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`this Court.
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`7
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`32. The Complaints fail to state a cause of action against Progress.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`33. This Court lacks jurisdiction over the subject matter of this action.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`34. The claims of plaintiff are barred by the doctrine of laches.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`35. The damages allegedly sustained by the plaintiff were caused, in whole or in part, by the
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`negligence or other culpable conduct of the plaintiff and/or defendants other than Progress,
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`which conduct constituted a supervening cause of plaintiff’s alleged injuries.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`36. Insofar as the Complaint and each cause of action considered separately allege a cause of
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`action occurring before September 1, 1975, each such cause of action is barred by reason
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`of the culpable conduct attributable to plaintiff, including contributory negligence and
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`assumption of the risk.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`37. Any damages allegedly sustained by the plaintiff were the proximate result of the
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`unforeseen and/or unforeseeable negligent, grossly negligent, wanton or reckless omission
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`or conduct of intervening third parties or superseding parties.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`38. The damages allegedly sustained by the plaintiff were caused, in whole or in part, by the
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`negligence or other culpable conduct of one or more persons or instrumentalities over
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`which Progress had no control and with whom it had no legal relationship.
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`AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`39. The damages allegedly sustained by the plaintiff were caused, in whole or in part, through
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`the operation of nature.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`40. If the plaintiff sustained damages as alleged, such damages occurred while plaintiff
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`engaged in activities into which he entered knowing the hazard, risk and danger of the
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`activities and he assumed the risks incidental to and attendant to the activities.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`41. The lawsuit was not commenced by the plaintiff within the time prescribed by law and the
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`plaintiff, therefore, is barred from recovery pursuant to applicable statutes of limitations.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`42. All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31, 1986)
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`are time-barred in that said statute is in violation of the Constitution of the United States
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`and the Constitution of the State of New York.
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
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`43. This action cannot be maintained, as there is another action pending for the same relief.
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`44. To the extent that any injury relating to the plaintiff occurred in the context of an employer-
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`employee relationship, claims for said injuries are barred by the Workers’ Compensation
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`Act.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`45. No acts or omissions of this defendant proximately caused any damages.
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`46. Any product of this answering defendant that may have been present at plaintiff’s job
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`locations was placed in any such locations upon specification, approval or at the instruction
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`of governmental or legislative agencies or bodies.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`47. The damages allegedly sustained by the plaintiff, and/or damages which allegedly arose
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`from plaintiff’s alleged exposure to asbestos-containing products while they were working
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`on or about any products manufactured by this defendant (the “Products”) were caused, in
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`whole or in part, by the improper use and operation of the Products, rather than any defect
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`in the design, manufacture, production, assemblage, installation, testing, labeling,
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`marketing, distribution, sale or inspection of the Products by Progress.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`48. The damages allegedly sustained by the plaintiff which allegedly arose from the Products
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`were caused by the alteration, misuse and/or improper maintenance of the Products by one
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`or more persons or instrumentalities other than Progress, rather than any defect in the
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`design, manufacture, production, assemblage, installation, testing, labeling, marketing,
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`distribution, sale or inspection of the Products by Progress.
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`49. Progress is not liable for the damages allegedly sustained by plaintiff because plaintiff was
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`not in privity of contract with Progress at any time and the Products were not inherently
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`dangerous.
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`50. The Products were not defective or dangerous at any time when Progress had possession
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`or control of them.
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`51. All implied warranties, including the warranties of merchantability and fitness for a
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`particular purpose, were excluded at the time of the sale of the Products.
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`AS AND FOR A TWENTY- FIRST AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`52. No implied warranties, including the warranties of merchantability and fitness for a
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`particular purpose, became a part of the basis of the bargain in the sale of the Products.
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`AS AND FOR A TWENTY- SECOND AFFIRMATIVE DEFENSE PROGRESS
`ALLEGES UPON INFORMATION AND BELIEF
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`53. Progress is not liable to plaintiff for the damages alleged in the Complaint because such
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`damages are excluded and not recoverable under express warranty.
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`AS AND FOR A TWENTY- THIRD AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`54. The purchaser of the Products and all beneficiaries of any warranties, express or implied,
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`relating to the Products failed to provide notice of the alleged breaches of warranty to this
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`defendant pursuant to the applicable provision of the Uniform Commercial Code.
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`AS AND FOR A TWENTY- FOURTH AFFIRMATIVE DEFENSE PROGRESS
`ALLEGES UPON INFORMATION AND BELIEF
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`55. Oral warranties upon which plaintiff allegedly relied are unavailable as violative of the
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`provisions of the applicable Statute of Frauds.
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`AS AND FOR A TWENTY- FIFTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`56. To the extent that plaintiff sustained injuries from the use of a product alleged to contain
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`asbestos, which is denied, plaintiff, other defendants or other parties not under the control
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`of Progress misused, abused, misapplied and otherwise mishandled the product alleged to
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`be asbestos material. Therefore, the amount of damages which may be recoverable must
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`be diminished by the proportion which said misuse, abuse, misapplication and mishandling
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`bears to the conduct which caused the alleged damage or injury.
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`AS AND FOR A TWENTY- SIXTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
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`57. In the event it should be proven at the time of trial that all the defendants to this action are
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`subject to market share liability, which Progress denies is available in this case, then
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`Progress’ share of such liability would be of such a de minimis amount as to make its
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`contribution for damages negligible and Progress would be entitled to contribution, either
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`in whole or in part, from co-defendants.
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`AS AND FOR A TWENTY- SEVENTH AFFIRMATIVE DEFENSE PROGRESS
`ALLEGES UPON INFORMATION AND BELIEF
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`58. The asbestos products alleged in plaintiff’s Complaint are not products within the meaning
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`and scope of the Restatement of Torts Section 402A and as such the Verified Complaint
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`fails to state a cause of action in strict liability.
`
`AS AND FOR A TWENTY- EIGHTH AFFIRMATIVE DEFENSE PROGRESS
`ALLEGES UPON INFORMATION AND BELIEF
`
`59. Progress had no knowledge or reason to know of any alleged risks associated with asbestos
`
`and/or asbestos-containing products at any time during the periods complained of.
`
`AS AND FOR A TWENTY- NINTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`60. The plaintiff did not directly or indirectly purchase any asbestos-containing products or
`
`materials from Progress and the plaintiff did not either receive or rely upon any
`
`representation or warranty allegedly made by Progress.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
`
`61. To the extent that the plaintiff was exposed to any product containing asbestos as a result
`
`of conduct by Progress, which is denied, said exposure was de minimis and not a substantial
`
`contributing factor to any asbestos-related disease which the plaintiff may have developed,
`
`and not actionable at law or equity.
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`
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
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`AS AND FOR A THIRTY- FIRST AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`62. Exposure to asbestos fibers attributable to the Products, which is denied, is so minimal as
`
`to be insufficient to establish to a reasonable degree of probability that the Products are
`
`capable of causing injury or damages and must be considered speculative as a matter of
`
`law.
`
`AS AND FOR A THIRTY- SECOND AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`63. Finished asbestos-containing products are not unreasonably dangerous as a matter of law.
`
`AS AND FOR A THIRTY- THIRD AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`64. If Progress was on notice of any hazard or defect for which plaintiff seek relief, which
`
`Progress denies, plaintiff also had such notice and plaintiff is thereby barred from recovery.
`
`AS AND FOR A THIRTY- FOURTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`65. Any damages must be reduced by the value of the benefit received by plaintiff from the
`
`use of Progress’ products.
`
`AS AND FOR A THIRTY- FIFTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`66. There is no justiciable issue or controversy.
`
`AS AND FOR A THIRTY- SIXTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`67. The claims for damages have not accrued and are purely speculative, uncertain and
`
`contingent.
`
`
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
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`AS AND FOR A THIRTY- SEVENTH AFFIRMATIVE DEFENSE PROGRESS
`ALLEGES UPON INFORMATION AND BELIEF
`
`68. Plaintiff has acted voluntarily, unnecessarily, prematurely, with no evidence of injury to
`
`anyone at any job locations.
`
`AS AND FOR A THIRTY- EIGHTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`69. None of the alleged injuries or damages were foreseeable at the time of the Verified
`
`Complaint or at the time of the acts or omissions in plaintiff’s Verified Complaint.
`
`AS AND FOR A THIRTY- NINTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`70. Progress was under no duty to warn purchasers, those who performed work, or those under
`
`their control who were in a better position to warn; if warning was required, other
`
`defendants’ failure to do so was a superseding proximate cause of injury.
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
`
`71. Plaintiff was warned of the risks of exposure to and use of asbestos-containing materials.
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`72. Plaintiff’s claims are barred as a matter of public policy, since the social utility and benefit
`
`of asbestos-containing products outweighed the risk.
`
`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`73. To the extent that the plaintiff seeks to maintain a claim for relief on behalf of any decedent,
`
`said plaintiff lacks capacity and/or standing to maintain such claim for relief against
`
`Progress.
`
`
`
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`NYSCEF DOC. NO. 35
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`74. Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and
`
`indispensable parties.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`75. Plaintiff may not bring this action as he has failed to exhaust all of his administrative
`
`remedies.
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`76. Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the
`
`Verified Complaint.
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`77. Plaintiff’s demands for exemplary or punitive damages are barred because such damages
`
`are not recoverable or warranted in this action.
`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`78. Plaintiff’s demands for punitive damages are barred by the due process clauses of the
`
`Fourteenth Amendment to the United States Constitution and the New York State
`
`Constitution.
`
`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`79. Plaintiff’s demands for punitive damages are barred by the proscription of the Eighth
`
`Amendment to the United States Constitution, as applied to the states through the
`
`
`
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`RECEIVED NYSCEF: 02/21/2024
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`Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution
`
`prohibiting the imposition of excessive fines.
`
`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`80. Plaintiff’s demands for punitive damages are barred by the “double jeopardy” clause of the
`
`Fifth Amendment to the United States Constitution, as applied to the states through the
`
`Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
`
`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
`
`81. If plaintiff sustained injuries in the manner alleged, all of which has been denied by this
`
`defendant, the liability of Progress, if any, shall be limited in accordance with Article 16
`
`of the Civil Practice Law and Rules.
`
`AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`82. At all times relevant to this litigation, Progress complied with all applicable laws,
`
`regulations and standards.
`
`AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`83. Relief is barred by virtue of the doctrines of estoppel and waiver.
`
`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`84. At all times relevant to this litigation, the agents, servants and/or employees of Progress
`
`utilized proper methods in the conduct of their operations, in conformity with the available
`
`knowledge and research of the scientific and industrial communities.
`
`
`
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`85. Plaintiff contributed to his injuries, either in whole or in part, by exposure to or the use of
`
`tobacco products and/or other substances, products, medications or drugs.
`
`AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`86. Some or all of the causes of action may not be maintained because of arbitration and award.
`
`AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`87. Some or all of the causes of action may not be maintained because of collateral estoppel.
`
`AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`88. Some or all of the causes of action may not be maintained because of discharge in
`
`bankruptcy.
`
`AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`89. Some or all of the causes of action may not be maintained because of payment.
`
`AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE PROGRESS ALLEGES
`UPON INFORMATION AND BELIEF
`
`90. Some or all of the causes of action may not be maintained because of release.
`
`AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE PROGRESS ALLEGES UPON
`INFORMATION AND BELIEF
`
`91. Some or all of the causes of action may not be maintained because of res judicata.
`
`
`
`
`
`18
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:07 PM
`NYSCEF DOC. NO. 35
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`
`IND