FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`
`Index No.: 190011/2024
`
`VERIFIED ANSWER TO
`PLAINTIFFS’ VERIFIED
`COMPLAINT, AFFIRMATIVE
`DEFENSES, CROSS-CLAIMS,
`AND ANSWER TO CROSS-
`CLAIMS OF DEFENDANT J.H.
`FRANCE REFRACTORIES
`COMPANY
`
` x
`
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`
`DENNIS KILKENNY AND PATRICIA KILKENNY,
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
` -against-
`
`
`
`
`
`
`
`
`AII ACQUISITION, LLC, F/K/A AII ACQUISITION
`CORP., F/K/A ATHLONE INDUSTRIES, INC., F/K/A
`HOLLAND FURNACE COMPANY, et al., including
`J.H. FRANCE REFRACTORIES CO., INC.
`
`
`
`
` x
`
`
`
`
`
`
`
`Defendants.
`
`
`
`Defendant J. H. France Refractories Company, sued as “J.H. France Refractories Co., Inc.”
`
`
`
`
`
`(hereinafter “J. H. France” or “Answering Defendant”), by its attorneys, Malaby & Bradley, LLC,
`
`hereby acknowledges receipt and answers Plaintiffs’ Verified Complaint filed upon information
`
`and belief on or about January 9, 2024 (“Complaint”), and alleges, upon information and belief,
`
`as follows:
`
`
`
`COMPLAINT
`
`1.
`
`Answering Defendant denies knowledge or information sufficient to form
`
`a belief as to the truth of the allegations contained in paragraphs 1 and 9 of the Complaint and
`
`refers all questions of law and/or fact to the Court.
`
`2.
`
`Answering Defendant denies the allegations contained in paragraph 2 of
`
`the Complaint except admits that Answering Defendant is a foreign corporation that has done
`
`and/or transacted business in the State of New York, however such transactions upon
`
`information and belief do not give rise to jurisdiction by the Courts of the State of New York in
`
`this matter with respect to Answering Defendant, denies knowledge or information sufficient to
`
`
`
`1 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`form a belief as to the truth of the allegations to the extent they pertain to or are directed at
`
`Plaintiffs or any other defendant in this action, and refers all questions of law and/or fact to the
`
`Court.
`
`3.
`
`Answering Defendant denies the allegations contained in paragraphs 3
`
`through 8 (inclusive) of the Complaint to the extent they pertain to Answering Defendant, denies
`
`knowledge or information sufficient to form a belief as to the truth of the allegations to the extent
`
`they pertain to or are directed at Plaintiffs or any other defendant in this action, and refers all
`
`questions of law and/or fact to the Court.
`
`AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
`
`
`
`4.
`
`With regard to the first unnumbered paragraph under the First Cause of
`
`Action of the Complaint, Answering Defendant repeats, reiterates and realleges each and every
`
`response as to paragraphs 1 through 9 of the Complaint as if more fully set forth herein.
`
`5.
`
`Answering Defendant denies each and every allegation contained in
`
`paragraphs 10 through 35 (inclusive) of the Complaint, and each subparagraph therein to the
`
`extent that they pertain to Answering Defendant, except admits that Answering Defendant’s
`
`products were of good and merchantable quality and fit for their intended uses and purposes,
`
`denies knowledge or information sufficient to form a belief as to the truth of the allegations to
`
`the extent they pertain to or are directed at Plaintiffs or any other defendant in this action, and
`
`respectfully refers all questions of law and/or fact to the Court.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`2 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`
`
`AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
`
`6.
`
`With regard to the first unnumbered paragraph under the Second Cause of
`
`Action of the Complaint, Answering Defendant repeats, reiterates and realleges each and every
`
`response as to paragraphs 1 through 35 of the Complaint as if more fully set forth herein.
`
`7.
`
`Answering Defendant denies the allegations contained in paragraphs 36
`
`through 39 (inclusive) of the Complaint to the extent that they pertain to Answering Defendant,
`
`denies knowledge or information sufficient to form a belief as to the truth of the allegations to
`
`the extent they pertain to or are directed at Plaintiffs or any other defendant in this action, and
`
`refers all questions of law and/or fact to the Court.
`
`AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION
`
`With regard to the first unnumbered paragraph under the Third Cause of
`
`8.
`
`Action of the Complaint, Answering Defendant repeats, reiterates and realleges each and every
`
`response as to paragraphs 1 through 39 of the Complaint as if more fully set forth herein.
`
`9.
`
`Answering Defendant denies the allegations contained in paragraphs 40
`
`through 41 (inclusive) of the Complaint to the extent that they pertain to Answering Defendant,
`
`denies knowledge or information sufficient to form a belief as to the truth of the allegations to
`
`the extent they pertain to or are directed at Plaintiffs or any other defendant in this action, and
`
`refers all questions of law and/or fact to the Court.
`
`AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION
`
`10. With regard to the first unnumbered paragraph under the Fourth Cause of
`
`Action of the Complaint, Answering Defendant repeats, reiterates and realleges each and every
`
`response as to paragraphs 1 through 41 of the Complaint as if more fully set forth herein.
`
`
`
`3 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`11. With regard to paragraph 42 of the Complaint, Answering Defendant
`
`repeats, reiterates and realleges each and every response as to paragraphs 1 through 41 of the
`
`Complaint as if more fully set forth herein.
`
`12.
`
`Answering Defendant denies the allegations contained in paragraphs 43
`
`through 68 (inclusive) of the Complaint, and each subparagraph and subpart therein to the extent
`
`that they pertain to Answering Defendant, denies knowledge or information sufficient to form a
`
`belief as to the truth of the allegations to the extent they pertain to or are directed at Plaintiffs or
`
`any other defendant in this action, and refers all questions of law and/or fact to the Court.
`
`AS AND FOR A RESPONSE TO THE FIFTH CAUSE OF ACTION
`
`13. With regard to the first unnumbered paragraph under the Fifth Cause of
`
`Action of the Complaint, Answering Defendant repeats, reiterates and realleges each and every
`
`response as to paragraphs 1 through 68 of the Complaint as if more fully set forth herein.
`
`14. With regard to paragraph 69 of the Complaint, Answering Defendant
`
`repeats, reiterates and realleges each and every response as to paragraphs 1 through 68 of the
`
`Complaint as if more fully set forth herein.
`
`15.
`
`Paragraph 70 of the Complaint is stylistic in nature and does not require an
`
`admission or denial by Answering Defendant.
`
`16.
`
`Answering Defendant denies the allegations contained in paragraphs 71
`
`through 82 (inclusive) and each subpart therein of the Complaint to the extent that they pertain to
`
`Answering Defendant, denies knowledge or information sufficient to form a belief as to the truth
`
`of the allegations to the extent they pertain to or are directed at Plaintiffs or any other defendant
`
`in this action, and refers all questions of law and/or fact to the Court.
`
`
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`4 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS AND FOR A RESPONSE TO THE SIXTH CAUSE OF ACTION
`
`17. With regard to the first unnumbered paragraph under the Sixth Cause of
`
`Action of the Complaint, Answering Defendant repeats, reiterates and realleges each and every
`
`response as to paragraphs 1 through 82 of the Complaint as if more fully set forth herein.
`
`18. With regard to paragraph 83 of the Complaint, Answering Defendant
`
`repeats, reiterates and realleges each and every response as to paragraphs 1 through 82 of the
`
`Complaint as if more fully set forth herein.
`
`19.
`
`Answering Defendant denies the allegations contained in paragraphs 84
`
`through 98 (inclusive) of the Complaint, and each subparagraph therein to the extent that they
`
`pertain to Answering Defendant, denies knowledge or information sufficient to form a belief as
`
`to the truth of the allegations to the extent they pertain to or are directed at Plaintiffs or any other
`
`defendant in this action, and refers all questions of law and/or fact to the Court.
`
`AS AND FOR A RESPONSE TO THE SEVENTH CAUSE OF ACTION
`
`20. With regard to the first unnumbered paragraph under the Seventh Cause of
`
`Action of the Complaint, Answering Defendant repeats, reiterates and realleges each and every
`
`response as to paragraphs 1 through 99 of the Complaint as if more fully set forth herein.
`
`21.
`
`Answering Defendant denies the allegations contained in paragraph 100 of
`
`the Complaint to the extent that they pertain to Answering Defendant, denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations to the extent they pertain
`
`to or are directed at Plaintiffs or any other defendant in this action, and refers all questions of law
`
`and/or fact to the Court.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`
`
`
`
`5 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS FOR A FIRST AFFIRMATIVE DEFENSE
`
`22.
`
`The Complaint fails to state a cause of action upon which relief can be
`
`granted against Answering Defendant.
`
`AS FOR A SECOND AFFIRMATIVE DEFENSE
`
`23.
`
`Plaintiffs’ claims are time barred by reason of the applicable statute(s) of
`
`limitations.
`
`AS FOR A THIRD AFFIRMATIVE DEFENSE
`
`24.
`
`In the event that Plaintiffs rely on New York Law, L. 1986 C. 682
`
`Sections 4 and 12 as grounds for maintaining this action, these sections are unconstitutional, and
`
`this action is time barred.
`
`AS FOR A FOURTH AFFIRMATIVE DEFENSE
`
`25.
`
`Plaintiffs’ claims are barred by the operation of the doctrine of laches.
`
`AS FOR A FIFTH AFFIRMATIVE DEFENSE
`
`26.
`
`Plaintiffs’ claims are barred by the operation of the doctrine of estoppel.
`
`AS FOR A SIXTH AFFIRMATIVE DEFENSE
`
`27.
`
`Plaintiffs have waived all claims against Answering Defendant.
`
`AS FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`28.
`
`This Court lacks jurisdiction over the subject matter of this action.
`
`AS FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`29.
`
`This Court lacks personal jurisdiction over Answering Defendant.
`
`AS FOR A NINTH AFFIRMATIVE DEFENSE
`
`30.
`
`The venue of this action is improper.
`
`
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`6 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS FOR A TENTH AFFIRMATIVE DEFENSE
`
`31.
`
`Plaintiffs lack the capacity, standing, or authority to bring this action, in
`
`whole or in part.
`
`AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`32.
`
`Plaintiffs’ claims are barred by the doctrines of res judicata and/or
`
`collateral estoppel.
`
`AS FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`33.
`
`Plaintiffs’ speculative, uncertain, and/or contingent damages have not
`
`accrued and are not recoverable.
`
`AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`34.
`
`There is no justiciable issue or controversy.
`
`
`
`AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`35.
`
`Joinder of individual plaintiff(s) in this action is improper because they do
`
`not assert any right to relief jointly, severally, or, in the alternative, do not arise out of the same
`
`transaction, occurrence, or series of transactions or occurrences.
`
`AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`36.
`
`This cause of action must be dismissed in the event Plaintiffs have another
`
`action pending against Answering Defendant for the same cause of action in another court.
`
`AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`37.
`
`In the event Plaintiffs executed a settlement agreement releasing and
`
`discharging Answering Defendant from all claims arising out of Plaintiffs’ alleged injuries, all
`
`claims alleged by Plaintiffs should be dismissed.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`7 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`
`
`AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`38.
`
`To the extent that Plaintiffs have given a release or covenant not to sue or
`
`not to enforce a judgment to an alleged co-tortfeasor of Answering Defendant, Plaintiffs’ claim
`
`herein is reduced to the extent of any amount stipulated by the release or covenant, in the amount
`
`of the consideration paid for it, or in the amount of the released tortfeasor’s equitable share of the
`
`damages, whichever is greater.
`
`AS FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`39.
`
`Plaintiffs were not injured by exposure to Answering Defendant’s
`
`products.
`
`AS FOR A NINETEENTH AFFIRMATIVE DEFENSE
`
`40.
`
`No acts or omissions of this defendant proximately caused any damages.
`
`AS FOR A TWENTIETH AFFIRMATIVE DEFENSE
`
`41.
`
`In the event that Plaintiffs were employed by any of the Defendants,
`
`Plaintiffs’ sole and exclusive remedy is under the Worker’s Compensation Law of the State of
`
`New York.
`
`AS FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`42.
`
`Insofar as the Complaint and each cause of action considered separately
`
`alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal
`
`injuries, the amount of damages recoverable thereon must be diminished by reason of the
`
`culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of
`
`risk, in the proportion which the culpable conduct attributable to Plaintiffs bears to the culpable
`
`conduct which caused the damages.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`8 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`
`
`AS FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`43.
`
`Insofar as the Complaint and each cause of action considered separately
`
`alleges a cause of action accruing on or after September 1, 1975, each such cause of action is
`
`barred by reason of the culpable conduct attributable to Plaintiffs, including contributory
`
`negligence and assumption of risk.
`
`AS FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`
`44.
`
`To the extent that Plaintiffs were injured as alleged in the Complaint,
`
`which Answering Defendant denies, said injury was proximately caused by the negligence,
`
`breach of warranty and/or strict liability of persons and/or entities other than Answering
`
`Defendant.
`
`AS FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`45.
`
`To the extent that Plaintiffs were injured as alleged in the Complaint,
`
`which Answering Defendant denies, such injury was the result of intervening and/or superseding
`
`acts or omissions of parties over whom Answering Defendant had no control or right to control
`
`and with whom it had no legal relationship.
`
`AS FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`46.
`
`At all times relevant hereto, the knowledge of Plaintiffs’ employer(s) was
`
`superior to that of Answering Defendant with respect to possible health hazards associated with
`
`his employment, and, therefore, if there was any duty to warn or provide protection to Plaintiffs,
`
`it was the duty of said employer, not of Answering Defendant, and breach of that duty was an
`
`intervening and/or superseding cause of the injuries allegedly sustained by Plaintiffs.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`
`
`9 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`
`47.
`
`At all times during the conduct of their corporate operations, the agents,
`
`servants and/or employees of Answering Defendant used proper methods in their production
`
`activities in conformity to the available knowledge and research of the scientific and industrial
`
`communities.
`
`AS FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`48.
`
`To the extent that Plaintiffs sustained injuries from the use of Answering
`
`Defendant’s products, which Answering Defendant denies, such injuries resulted from the
`
`unforeseeable misuse, abuse, alteration, modification, and/or unauthorized handling of the
`
`product by Plaintiffs, or by third-parties, over whom Answering Defendant had no control or
`
`right to control.
`
`AS FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`49.
`
`Any damages allegedly sustained by Plaintiffs were the proximate result
`
`of any unforeseen and/or unforeseeable negligent, grossly negligent, wanton, reckless, omissions
`
`or conduct of intervening third parties or superseding parties.
`
`AS FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`
`50.
`
`The damages allegedly sustained by Plaintiffs were caused, in whole or in
`
`part, by the negligence or other culpable conduct of one or more persons or instrumentalities
`
`over which Answering Defendant had no control and with whom it had no legal relationship.
`
`AS FOR A THIRTIETH AFFIRMATIVE DEFENSE
`
`51.
`
`The damages allegedly sustained by Plaintiffs were caused, in whole or in
`
`part, through the operation of nature.
`
`
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`10 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`52.
`
`Plaintiffs voluntarily assumed the risks associated with the use of or
`
`exposure to the products at issue.
`
`AS FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`
`53.
`
`Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries
`
`alleged in the Complaint.
`
`AS FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`
`54.
`
`Answering Defendant had no knowledge or reason to know of any alleged
`
`risks associated with finished asbestos-containing products at any time during the purported peril
`
`complained of in the Complaint.
`
`AS FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`
`55.
`
`Plaintiffs contributed to the injuries alleged by the use of other substances,
`
`products, medications, and drugs.
`
`AS FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`
`56.
`
`Plaintiffs’ injuries were caused directly, solely, and proximately by
`
`sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiffs, and not found in the
`
`general public, of which Answering Defendant neither knew, had reason to know, nor could have
`
`foreseen.
`
`AS FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`
`57.
`
`As to all causes of action pleaded in the Complaint which are based upon
`
`expressed or implied representations, such causes of action are legally insufficient as against
`
`Answering Defendant as there was no privity of contract between Plaintiffs and Answering
`
`Defendant.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`11 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`
`58.
`
`Plaintiffs never purchased, directly or indirectly, any asbestos-containing
`
`product or materials from Answering Defendant, nor did Plaintiffs ever receive or rely upon any
`
`representation allegedly made by Answering Defendant.
`
`AS FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`
`59.
`
`Plaintiffs lack capacity and/or standing to maintain a claim for relief
`
`against Answering Defendant with respect to injuries alleged to have been suffered by Plaintiffs.
`
`AS FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`
`60.
`
`To the extent that Plaintiffs were exposed to any product manufactured by
`
`Answering Defendant, which Answering Defendant denies, said exposure was de minimis and
`
`not a substantial contributing factor to any asbestos-related disease which Plaintiffs may have
`
`developed, thus requiring dismissal of the Complaint against Answering Defendant.
`
`AS FOR A FORTIETH AFFIRMATIVE DEFENSE
`
`61.
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary
`
`and indispensable parties.
`
`AS FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`
`62.
`
`To the extent that Plaintiffs are entitled to damages, which Answering
`
`Defendant denies, Answering Defendant is entitled to a set-off for all Workers’ Compensation
`
`payments received by Plaintiffs.
`
`AS FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`
`63.
`
`To the extent that any injury relating to Plaintiffs occurred in the context
`
`of an employer/employee relationship, claims for said injuries are barred by the Workers’
`
`Compensation Act.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`12 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`
`64.
`
`In accordance with CPLR 1601, Answering Defendant’s liability for non-
`
`economic loss is limited to its equitable share of the total liability for non-economic loss.
`
`AS FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`
`65.
`
`In accordance with CPLR 4545(c), Answering Defendant is entitled to a
`
`set-off for any past or future costs or expenses incurred or to be incurred by Plaintiffs for medical
`
`care, custodial care of rehabilitation services, loss of earnings, or other economic loss, which has
`
`been or will with reasonable certainty be replaced or indemnified in whole or in part from a
`
`collateral source.
`
`AS FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`
`66.
`
`Plaintiffs’ action is barred by the government contractor’s defense because
`
`Answering Defendant was a contractor supplying materials, labor, and/or services to the United
`
`States Government.
`
`AS FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`
`67.
`
`At all relevant times, the state of the medical, scientific, and industrial
`
`knowledge, the state of the art, practice, and prevailing industry standards regarding asbestos-
`
`containing products was such that Answering Defendant neither knew, had reason to know, nor
`
`could have known of any foreseeable or significant risk or harm to Plaintiffs in the normal or
`
`expected use of Answering Defendant’s products.
`
`AS FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`
`68. At all times relevant to this litigation, Answering Defendant complied
`
`with all applicable law, regulations, and standards.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`
`
`13 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
`
`69. Any injuries sustained by Plaintiffs resulted from Plaintiffs’ alleged use or
`
`exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance
`
`with mandatory specifications established by persons or entities other than Answering
`
`Defendant, including, without limitation, agencies, agents and departments of the United States,
`
`which persons or entities possessed, at the time of such manufacture or sale, knowledge equal to
`
`or greater than that of Answering Defendant concerning the properties and characteristics of
`
`asbestos and asbestos-containing products.
`
`AS FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
`
`70. Any asbestos-containing Answering Defendant products were supplied
`
`according to the purchaser’s or user’s specifications and standards.
`
`AS FOR A FIFTIETH AFFIRMATIVE DEFENSE
`
`71. Answering Defendant was under no legal duty to warn Plaintiffs of any
`
`hazards from the use of any asbestos-containing products. The actual purchasers and/or those
`
`under the purchasers’ control, Plaintiffs’ employer(s), and the owners and lessors of the
`
`properties at which Plaintiffs allege exposure to such products, were in a far better position to
`
`warn him and, if any such warning was legally required, which is expressly denied; their failure
`
`to do so was a superseding and proximate cause of Plaintiffs’ alleged injuries.
`
`AS FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
`
`72.
`
`Plaintiffs were reasonably and adequately warned of any alleged risks
`
`associated with the use of or exposure to asbestos-containing products.
`
`AS FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
`
`73.
`
`Timely and/or proper notice was not given to Answering Defendant as to
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`14 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`any alleged breach of warranty.
`
`AS FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
`
`74.
`
`To the extent Plaintiffs’ claims are based on an alleged breach of
`
`warranty, Plaintiffs did not rely on any warranty.
`
`AS FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
`
`75.
`
`Answering Defendant is not liable to Plaintiffs for the damages alleged in
`
`the Complaint because such damages are excluded and not recoverable under express warranty.
`
`AS FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
`
`76.
`
`Answering Defendant denies that the asbestos products alleged in the
`
`Complaint are products within the meaning and scope of the Restatement of Torts §402A and as
`
`such, the Complaint fails to state a cause of action in strict products liability.
`
`AS FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
`
`77.
`
`Any oral warranties upon which Plaintiffs allegedly relied are
`
`inadmissible under the Statute of Frauds.
`
`
`
`AS FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`
`78.
`
`Any claims by Plaintiffs for exemplary and/or punitive damages are barred
`
`because such damages are not recoverable or warranted.
`
`AS FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`
`79.
`
`Answering Defendant’s conduct was not reckless, malicious, and willful
`
`or grossly negligent, and consequently, Plaintiffs are not entitled to exemplary and/or punitive
`
`damages.
`
`AS FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
`
`80.
`
`Any claim for punitive damages is barred by the double jeopardy clause of
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`15 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`the Fifth Amendment to the United States Constitution, as applied to the states through the
`
`Fourteenth Amendment, as Article I, Section 6 of the New York State Constitution.
`
`AS FOR A SIXTIETH AFFIRMATIVE DEFENSE
`
`81.
`
`Any claim for punitive damages is barred by the ex post facto clause of
`
`Article I, Section 10 of the United States Constitution.
`
`AS FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
`
`82.
`
`Any claim for punitive damages is barred by the proscription of Article I,
`
`Section 5 of the New York State Constitution prohibiting the imposition of excessiveness.
`
`AS FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
`
`83.
`
`To the extent the law of any other jurisdiction is applicable to this action,
`
`any demand for punitive damages is barred by the applicable proscriptions of the constitution of
`
`such jurisdiction.
`
`AS FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
`
`84.
`
`All defenses which have been or will be asserted by other Defendants in
`
`this action are adopted and incorporated by reference as if fully set forth herein. In addition,
`
`Answering Defendant will rely upon any and all other further defenses which become available
`
`or appear during discovery in this action and hereby specifically reserves its right to amend its
`
`answer for the purpose of asserting any such additional affirmative defenses.
`
`AS FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE
`
`85.
`
`To the extent that Answering Defendant conformed to the scientific
`
`knowledge and research data available throughout the industry and scientific community,
`
`Answering Defendant has fulfilled its obligations, if any, herein, and Plaintiffs’ claims should be
`
`barred, in whole or in part.
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`16 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`AS FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE
`
`86.
`
`At all times material hereto, that state of the medical and industrial art was
`
`such that there was no generally accepted or recognized knowledge of any avoidable, unsafe,
`
`inherently dangerous, or hazardous character or nature of products allegedly containing asbestos
`
`when used in the manner and purpose described by Plaintiffs, and therefore, there was no duty to
`
`Answering Defendant to know of any such character or nature as to warn Plaintiffs or others
`
`similarly situated.
`
`AS FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE
`
`87.
`
`Answering Defendant cannot be held liable under principles of strict tort
`
`liability because products manufactured and/or products which left defendant’s possession did so
`
`prior to the enactment of New York law regarding strict liability.
`
`AS FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE
`
`88.
`
`Plaintiffs’ purported exposure to asbestos occurred on a federal enclave.
`
`All claims arising from alleged incidents on federal enclaves must be determined in accordance
`
`with federal laws.
`
`AS FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE
`
`89.
`
`The design, construction, maintenance, and all safety aspects of the
`
`equipment at issue implicates government contracts that give rise to federal laws, including but
`
`not limited to the War Powers Acts.
`
`AS FOR A SIXTY-NINTH AFFIRMATIVE DEFENSE
`
`90.
`
`Answering Defendant acted under the authority of an officer or agency of
`
`the United States, within the meaning of 28 U.S.C. § 1442(a)(1). Answering Defendant acted
`
`under the direction, control and demand of the U.S. Government, the Secretary of the Navy or
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`17 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`its/his delegee based on extensive and strict government design specifications.
`
`AS FOR A SEVENTIETH AFFIRMATIVE DEFENSE
`
`91.
`
`The government mandated precise specifications regarding the products it
`
`needed, and Answering Defendant conformed to those specifications. Answering Defendant
`
`cannot be liable to a third party in tort if the government approved reasonably precise
`
`specifications and Answering Defendant conformed to those specifications.
`
`AS FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE
`
`92.
`
`Pursuant to the Defense Production Act, Answering Defendant cannot be
`
`held liable for damages or penalties for any act or failure to act resulting directly or indirectly
`
`from compliance with a rule, regulation, or order issued pursuant to the Defense Production Act.
`
`AS AND FOR A CROSS-CLAIM
`AGAINST EACH OF THE OTHER DEFENDANTS
`
`If damages were sustained at the time(s) and place(s) set forth in the
`
`93.
`
`Complaint through any carelessness, recklessness and/or negligence other than that of Plaintiffs,
`
`including, but not limited to, the manufacture and distribution of asbestos-containing products,
`
`breach of warranty or misrepresentations, either express or implied, and/or through strict liability
`
`in tort, such damages, in whole or in part, will have been caused and brought about by reason of
`
`the carelessness, recklessness and/or negligence of each of the other defendants named in this
`
`action.
`
`94.
`
`If Plaintiffs should recover a judgment against J.H. France, by operation of
`
`law or otherwise, J.H. France will be entitled to judgment, contribution and/or indemnification,
`
`in whole or in part, from each of the other defendants named in this action, their agents, servants
`
`and/or employees, by reason of their carelessness, recklessness, and/or negligence for the amount
`
`of any such recovery, in accordance with principles of law regarding apportionment of fault and
`
`{00201103.}
`
`4883-9224-3625, v. 1
`
`
`
`18 of 22
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/25/2024 09:15 AM
`NYSCEF DOC. NO. 43
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/25/2024
`
`
`
`damages, along with costs, disbursements and reasonable expenses of the investigation and
`
`defense of this action, including reasonable attorneys’ fees.
`
`WHEREFORE, Defendant J.H. France demands judgment dismissing the Complaint as
`
`to it, together with the costs and disbursements of this action, and, to the extent of any recovery
`
`by Plaintiffs against J.H. France herein, further demands judgment for contribution and/or
`
`indemnification against each of the other defendants named in the Complaint, together with J.H.
`
`France’s costs and disbursements in this action.
`
`
`
`ANSWER TO ALL CROSS-CLAIMS
`
`J.H. France hereby answers the cross-claims of each of the other defendants and
`
`any third-party defendants named in this action, however asserted or al