throbber
FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`
`
`
`
`IN RE: NEW YORK CITY
`
` ASBESTOS LITIGATION
`
`
`DENNIS KILKENNY AND PATRICIA KILKENNY,
`
` Plaintiff(s),
`
` -against-
`
`AII ACQUISITION, LLC F/K/A AII ACQUISITION
`CORP., F/K/A ATHLONE INDUSTRIES, INC., F/K/A
`HOLLAND FURNACE COMPANY, et al.,
`
` Defendant(s).
`
`
`
`
`
`Index No.: 190011/2024
`
`
`VERIFIED ANSWER ON
`BEHALF OF DEFENDANT
`SONY ELECTRONICS INC.
`
`
`
`
`
`Defendant, SONY ELECTRONICS INC., (hereinafter “SONY ELECTRONICS”), by its
`
`attorneys, GOLDBERG SEGALLA LLP, for its verified answer to the summons and verified
`
`complaint (“Complaint”) herein states:
`
`1.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraphs 1, 5, and 9 of the Complaint.
`
`2.
`
`Denies each and every allegation contained in paragraph 2 of the Complaint insofar
`
`as they pertain to SONY ELECTRONICS, except avers that SONY ELECTRONICS is a foreign
`
`corporation, denies knowledge or information sufficient to form a belief as to the truth of remaining
`
`allegations insofar as they pertain to other defendants, and refers all questions of law to this Court
`
`at the time of trial.
`
`3.
`
`Denies each and every allegation contained in paragraphs 3, 4, 6, 7, and 8 of the
`
`Complaint insofar as they pertain to SONY ELECTRONICS, denies knowledge or information
`
`sufficient to form a belief as to the truth of those allegations insofar as they pertain to other
`
`defendants, and respectfully refers all questions of law to the Court.
`
`1 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`AS TO THE FIRST CAUSE OF ACTION
`
`4.
`
`With respect to the unnumbered sentence, SONY ELECTRONICS repeats,
`
`reiterates and realleges each and every response to paragraphs 1 through 9 of the Complaint as if
`
`fully set forth herein.
`
`5.
`
`The allegations contained in paragraph 10 of the Complaint pertain to other parties
`
`and, therefore, do not require a response. However, to the extent these allegations do require a
`
`response, SONY ELECTRONICS denies each and every allegation in paragraph 10 of the
`
`Complaint, and refers all questions of law to this Court at the time of trial.
`
`6.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph 11 of the Complaint.
`
`7.
`
`Denies each and every allegation contained in paragraphs 12, 13, 14, 15, 16, 17
`
`(including subparagraphs a-h), 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33
`
`(including subparagraphs a-j), 34, and 35 of the Complaint insofar as they pertain to SONY
`
`ELECTRONICS, denies knowledge or information sufficient to form a belief as to the truth of
`
`those allegations insofar as they pertain to other defendants, and respectfully refers all questions
`
`of law to the Court.
`
`AS TO THE SECOND CAUSE OF ACTION
`
`8.
`
`With respect to the unnumbered sentence, SONY ELECTRONICS repeats,
`
`reiterates and realleges each and every response to paragraphs 1 through 35 of the Complaint as if
`
`fully set forth herein.
`
`9.
`
`Denies each and every allegation contained in paragraphs 36, 37, 38, and 39 of
`
`the Complaint insofar as they pertain to SONY ELECTRONICS, denies knowledge or
`
`2 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`information sufficient to form a belief as to the truth of those allegations insofar as they pertain
`
`to other defendants, and respectfully refers all questions of law to the Court.
`
`AS TO THE THIRD CAUSE OF ACTION
`
`10. With respect to the unnumbered sentence, SONY ELECTRONICS repeats,
`
`reiterates and realleges each and every response to paragraphs 1 through 39 of the Complaint as if
`
`fully set forth herein.
`
`11.
`
`Denies each and every allegation contained in paragraphs 40 and 41 of the
`
`Complaint insofar as they pertain to SONY ELECTRONICS, denies knowledge or information
`
`sufficient to form a belief as to the truth of those allegations insofar as they pertain to other
`
`defendants, and respectfully refers all questions of law to the Court.
`
`AS TO THE FOURTH CAUSE OF ACTION
`
`12. With
`
`respect
`
`to
`
`the unnumbered sentence and paragraph 42, SONY
`
`ELECTRONICS repeats, reiterates and realleges each and every response to paragraphs 1 through
`
`41 of the Complaint as if fully set forth herein.
`
`13.
`
`Denies each and every allegation contained in paragraphs 43, 44, 45, 46, 47, 48, 49,
`
`50, 51, 52 (including subparagraphs a-l), 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, and
`
`68 of the Complaint insofar as they pertain to SONY ELECTRONICS, denies knowledge or
`
`information sufficient to form a belief as to the truth of those allegations insofar as they pertain to
`
`other defendants and refers all questions of law to this Court at the time of trial.
`
`14.
`
`Defendant SONY ELECTRONICS denies knowledge or information sufficient to
`
`form a belief as to the allegations contained in paragraph 67 of the Complaint.
`
`AS TO THE FIFTH CAUSE OF ACTION
`
`3 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`15. With
`
`respect
`
`to
`
`the unnumbered sentence and paragraph 69, SONY
`
`ELECTRONICS repeats, reiterates and realleges each and every response to paragraphs 1 through
`
`68 of the Complaint as if fully set forth herein.
`
`16.
`
`The allegations contained in paragraphs 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80,
`
`81, and 82 of the Complaint pertain to other parties and, therefore, do not require a response.
`
`However, to the extent these allegations do require a response, SONY ELECTRONICS denies
`
`each and every allegation in paragraphs 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, and 82 of the
`
`Complaint, and refers all questions of law to this Court at the time of trial.
`
`AS TO THE SIXTH CAUSE OF ACTION
`
`17. With
`
`respect
`
`to
`
`the unnumbered sentence and paragraph 83, SONY
`
`ELECTRONICS repeats, reiterates and realleges each and every response to paragraphs 1 through
`
`82 of the Complaint as if fully set forth herein.
`
`18.
`
`The allegations contained in paragraphs 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94,
`
`95, 96, and 97 of the Complaint pertain to other parties and, therefore, do not require a response.
`
`However, to the extent these allegations do require a response, SONY ELECTRONICS denies
`
`each and every allegation in paragraphs 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, and 97
`
`of the Complaint.
`
`19.
`
`The allegations contained in paragraph 98 of the Complaint do not require a
`
`response; however, to the extent a response is required, SONY ELECTRONICS denies the
`
`allegations contained in paragraph 98 of the Complaint, and refers all questions of law to this Court
`
`at the time of trial.
`
`AS TO THE SEVENTH CAUSE OF ACTION
`
`4 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`20. With respect to the unnumbered sentence, SONY ELECTRONICS repeats,
`
`reiterates and realleges each and every response to paragraphs 1 through 98 of the Complaint as if
`
`fully set forth herein.
`
`21.
`
`Defendant SONY ELECTRONICS denies each and every allegation contained in
`
`paragraph 99 of the Complaint insofar as they pertain to SONY ELECTRONICS, denies
`
`knowledge or information sufficient to form a belief as to the truth of those allegations insofar as
`
`they pertain to other defendants and refers all questions of law to this Court at the time of trial.
`
`22.
`
`SONY ELECTRONICS denies all other allegations not otherwise admitted or
`
`denied.
`
`AFFIRMATIVE DEFENSES
`
`First Affirmative Defense
`
`1.
`
`That defendant, SONY ELECTRONICS, denies any negligence, culpable conduct
`
`or liability on its part, but if said defendant is ultimately found to be liable to Plaintiff, then,
`
`pursuant to Article 16 of the Civil Practice Law & Rules, it shall only be liable for its equitable
`
`share of Plaintiff’s recovery since any liability which will be found against it will be insufficient
`
`to impose joint liability.
`
`Second Affirmative Defense
`
`2.
`
`To the extent that the complaint herein and the claims made by Plaintiff has not
`
`commenced within the time limited by law, the complaint is barred by the statute of limitations.
`
`Third Affirmative Defense
`
`3.
`
`That to the extent that Plaintiff has failed and neglected to maintain this action in a
`
`swift, diligent and timely fashion, the Plaintiff’s complaint is barred by laches.
`
`Fourth Affirmative Defense
`
`5 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`4.
`
`Plaintiff failed to plead the claims of fraud and conspiracy with proper specificity
`
`and, as such, all claims premised on fraud and conspiracy must be dismissed.
`
`Fifth Affirmative Defense
`
`5.
`
`The complaint and each and every allegation considered separately fail to state any
`
`cause of action against SONY ELECTRONICS upon which relief can be granted.
`
`Sixth Affirmative Defense
`
`6.
`
`The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable
`
`Workers’ Compensation statutes and shall have constituted an industrial disability and Plaintiff’s
`
`exclusive remedy, if any, shall lie within the terms and ambit of said statutes.
`
`Seventh Affirmative Defense
`
`7.
`
`That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or
`
`contributed by the fault, neglect and want of care on the part of Plaintiff or on the part of others
`
`for whose acts or omissions or breach of legal duty SONY ELECTRONICS is not liable.
`
`Eighth Affirmative Defense
`
`8.
`
`In the event that Plaintiff used the products(s) designated in the complaint, said
`
`product(s) was (were) misused or improperly used, which misuse or improper use proximately
`
`caused and contributed, in whole or in part, to the claims alleged by Plaintiff in the complaint.
`
`Ninth Affirmative Defense
`
`9.
`
`Upon information and belief, that if Plaintiff sustained any of the injuries, losses
`
`and damages complained of in the complaint, such injuries, losses and damages were caused or
`
`brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault or
`
`other culpable conduct of Plaintiff. Upon information and belief, that any recovery herein by the
`
`Plaintiff, if any, must be diminished and reduced in the proportion which the said culpable conduct
`
`6 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`of the Plaintiff bears to the alleged culpable conduct of the defendant, if any, which allegedly
`
`caused said injuries, losses or damages.
`
`Tenth Affirmative Defense
`
`10.
`
`Insofar as the complaint and each cause of action considered separately allege 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 Plaintiff, including contributory negligence and assumption of risk, in the proportion
`
`which the culpable conduct attributable to Plaintiff bear to the culpable conduct which caused the
`
`damages.
`
`Eleventh Affirmative Defense
`
`11.
`
`Upon information and belief, that insofar Plaintiff relies upon allegations of
`
`negligence, breaches of warranties, fraudulent representations and violations of obligations of
`
`strict product liability as against SONY ELECTRONICS prior to September, 1975, said causes of
`
`action fail to state facts sufficient to constitute causes of action as against SONY ELECTRONICS
`
`by reason of the failure to allege the freedom of plaintiff from contributory negligence or fault;
`
`and that if plaintiff sustained the injuries, losses and other damages complained of in the complaint,
`
`they were caused and brought about, in whole or in part, by the negligence, carelessness,
`
`assumption of risk, fault or other culpable conduct of Plaintiff.
`
`Twelfth Affirmative Defense
`
`12. While SONY ELECTRONICS denies the allegations of Plaintiff with respect to
`
`negligence, statutory liability, strict liability, injury and damages, to the extent that Plaintiff may
`
`be able to prove the same, they were result of intervening and/or interceding acts of superseding
`
`7 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`negligence on the part of third parties over which SONY ELECTRONICS had neither control nor
`
`right of control.
`
`Thirteenth Affirmative Defense
`
`13.
`
`That to the extent that Plaintiff alleges rights hereunder assertedly derived from oral
`
`warranties or undertakings on the part of SONY ELECTRONICS, the complaint is barred by the
`
`applicable statute of frauds.
`
`Fourteenth Affirmative Defense
`
`14.
`
`If Plaintiff used any products of SONY ELECTRONICS, the answering defendant
`
`alleges upon information and belief that said products were produced pursuant to government
`
`specifications and as such, SONY ELECTRONICS is relieved of any responsibility for the injuries
`
`which Plaintiff’s claim.
`
`Fifteenth Affirmative Defense
`
`15.
`
`If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the
`
`product caused and/or contributed to the alleged damages or injuries to Plaintiff then, SONY
`
`ELECTRONICS requests that the amount of damages which might be recoverable shall be
`
`diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication,
`
`attributed to the Plaintiff, his co-workers and/or employers bears to the conduct which caused the
`
`alleged damages or injuries.
`
`Sixteenth Affirmative Defense
`
`16.
`
`That the injuries and/or illnesses to Plaintiff, if any, arose in whole or in part, out
`
`of the risks, hazards and dangers incident to the occupation of Plaintiff, all of which were open,
`
`obvious and well known to plaintiff, and the action is barred by virtue of Plaintiff’s assumption of
`
`the risks thereof.
`
`8 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`Seventeenth Affirmative Defense
`
`17.
`
`That to the extent that SONY ELECTRONICS conformed to the scientific
`
`knowledge and research data available throughout the industry and scientific community, SONY
`
`ELECTRONICS shall have fulfilled its obligations, if any, herein, and Plaintiff’s claim shall be
`
`barred, in whole or in part.
`
`Eighteenth Affirmative Defense
`
`18.
`
`Upon information and belief, SONY ELECTRONICS conformed to the scientific
`
`knowledge and data available in the industry and fulfilled its obligations, if any, and its activities
`
`and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or
`
`wantonness, and the Plaintiff may not recover herein any exemplary damages or punitive damages
`
`against SONY ELECTRONICS.
`
`Nineteenth Affirmative Defense
`
`19.
`
`That the cause of action pleaded in the complaint insofar as it asserts an alleged
`
`cause of action for express and/or implied warranties and the alleged breaches thereof, as against
`
`SONY ELECTRONICS, is legally insufficient by reason of the failure to allege privity of contract
`
`and/or privity of warranties between the Plaintiff and SONY ELECTRONICS.
`
`Twentieth Affirmative Defense
`
`20.
`
`To the extent that any breach of warranty is alleged, Plaintiff has failed to give
`
`proper and prompt notice of any such breach of warranty to SONY ELECTRONICS.
`
`Twenty-First Affirmative Defense
`
`21.
`
`Plaintiff did not directly or indirectly purchase any asbestos-containing products or
`
`materials from SONY ELECTRONICS and Plaintiffs neither received nor relied upon any
`
`representation or warranty allegedly made by SONY ELECTRONICS.
`
`9 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`Twenty-Second Affirmative Defense
`
`22.
`
`That to the extent that the cause pleaded by Plaintiff herein fails to accord with the
`
`Uniform Commercial Code, including, but not limited to §2-725 thereof, Plaintiff’s complaint is
`
`barred.
`
`Twenty-Third Affirmative Defense
`
`23.
`
`That to the extent that any of the products for which liability is charged herein to
`
`SONY ELECTRONICS, which is denied were modified, assembled, altered, quantified or in any
`
`way materially varied, which same may be casually related to the claims of Plaintiff, the actions
`
`of Plaintiff are barred herein.
`
`Twenty-Fourth Affirmative Defense
`
`24.
`
`Upon information and belief, that insofar as Plaintiff alleges, as against SONY
`
`ELECTRONICS, any willful and wanton misconduct, and that if knowingly and intentionally sold
`
`a product or products that it knew to be unreasonably dangerous, all of which SONY
`
`ELECTRONICS denies, any such cause of action or causes of action accrued more than one year
`
`prior to the commencement of this lawsuit and are time-barred by the one-year statute of
`
`limitations.
`
`Twenty-Fifth Affirmative Defense
`
`25.
`
`That to the extent that the use, application, employment, surrounding conditions,
`
`safety precautions and other circumstances attendant upon the material allegedly used by Plaintiff
`
`was determined, controlled, selected or limited by his employer or by others for whose acts,
`
`omissions or breach SONY ELECTRONICS is not liable, the complaint is barred, in whole or in
`
`part.
`
`Twenty-Sixth Affirmative Defense
`
`10 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`26.
`
`Plaintiff’s claims are barred by the doctrine of res judicata and/or collateral
`
`estoppel.
`
`Twenty-Seventh Affirmative Defense
`
`27.
`
`If Plaintiff used any products of SONY ELECTRONICS, upon information and
`
`belief, SONY ELECTRONICS alleges that said products were used improperly, and without
`
`proper safety protection which was available from Plaintiff’s employer(s).
`
`Twenty-Eighth Affirmative Defense
`
`28.
`
`Plaintiff’s employer(s) was a sophisticated purchaser upon which devolved all
`
`responsibility for the use of products referred to in Plaintiffs’ complaint.
`
`Twenty-Ninth Affirmative Defense
`
`29.
`
`At all times material hereto, the state of the medical and industrial art was such that
`
`there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently
`
`dangerous or hazardous character or nature of products containing asbestos when used in the
`
`manner and purpose described by Plaintiff, therefore, there was no duty for SONY
`
`ELECTRONICS to know of such character or nature or to warn Plaintiff or others similarly
`
`situated.
`
`Thirtieth Affirmative Defense
`
`30.
`
`Plaintiff’s cause of action for exemplary and punitive damages is barred because
`
`such damages are not recoverable or warranted in this action.
`
`Thirty-First Affirmative Defense
`
`31.
`
`The imposition of punitive damages on the facts alleged in the complaint would
`
`violate the due process clauses of the Constitutions of the United States and the State of New York.
`
`Thirty-Second Affirmative Defense
`
`11 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`32.
`
`The imposition of punitive damages on the facts alleged in the complaint would
`
`violate the excessive fines clause of the Constitution of the State of New York.
`
`Thirty-Third Affirmative Defense
`
`33.
`
`The imposition of punitive damages on the facts alleged in the complaint is barred
`
`by the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article
`
`1, Section 6 of the New York State Constitution.
`
`Thirty-Fourth Affirmative Defense
`
`34.
`
`The imposition of punitive damages on the facts alleged in the complaint is barred
`
`by the ex post facto clause of the United States Constitution.
`
`Thirty-Fifth Affirmative Defense
`
`35.
`
`The imposition of punitive damages on the facts alleged in the complaint is barred
`
`by the United States Constitution and by the Constitution of the State of New York.
`
`Thirty -Sixth Affirmative Defense
`
`36.
`
`The action cannot proceed in the absence of all parties who should be named in
`
`accordance with CPLR 1001.
`
`Thirty -Seventh Affirmative Defense
`
`37.
`
`In the event that Plaintiff recovers damages in this action, which have been paid or
`
`are payable by a collateral source, SONY ELECTRONICS will seek a collateral source offset
`
`pursuant to Article 45 of the CPLR.
`
`Thirty-Eighth Affirmative Defense
`
`38.
`
`Plaintiff contributed to his illness by the use, either in whole or in part, of other
`
`substances, products, medications and drugs. To the extent that Plaintiff used any tobacco
`
`12 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`products, any liability should be reduced by the extent of any use and/or injuries related thereto or
`
`caused thereby.
`
`Thirty-Ninth Affirmative Defense
`
`39.
`
`Upon information and belief, the incident complained of in the Complaint and the
`
`alleged damages were caused by the culpable conduct of the remaining parties to this action. By
`
`reason of the foregoing, contribution should be awarded pursuant to Article 14 of the CPLR.
`
`Fortieth Affirmative Defense
`
`40.
`
`Liability for non-economic loss is limited by the applicable provisions of the Article
`
`16 of the CPLR.
`
`Forty-First Affirmative Defense
`
`41.
`
`That in the event there has been a settlement between Plaintiff and any joint
`
`tortfeasor, then SONY ELECTRONICS hereby pleads and seeks the full benefit of §15-108 of the
`
`General Obligations Law, that Plaintiffs’ claims against SONY ELECTRONICS be reduced to the
`
`fullest extent permitted by §15-108 of the General Obligations Law.
`
`Forty-Second Affirmative Defense
`
`42.
`
`Plaintiff does not have the legal capacity to sue and therefore do not have standing
`
`to commence or maintain this action.
`
`Forty-Third Affirmative Defense
`
`43.
`
`This action is barred by the doctrine of judicial estoppel.
`
`Forty-Fourth Affirmative Defense
`
`44.
`
`This Court lacks in personam jurisdiction in this matter by reason of improper
`
`service of process of this Defendant.
`
`Forty-Fifth Affirmative Defense
`
`13 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`45.
`
`This Court lacks subject matter jurisdiction of this Defendant.
`
`Forty-Sixth Affirmative Defense
`
`46.
`
`This Court lacks in personam jurisdiction of this Defendant.
`
`Forty-Seventh Affirmative Defense
`
`47.
`
`SONY ELECTRONICS did not own, control, manufacture or distribute any alleged
`
`product to which Plaintiff claims he was exposed.
`
`Forty-Eighth Affirmative Defense
`
`48.
`
`SONY ELECTRONICS did not assume any liability for any entity that may have
`
`produced products to which Plaintiff claims he was exposed.
`
`Forty-Ninth Affirmative Defense
`
`49.
`
`SONY ELECTRONICS denies that Plaintiff had any exposure to any asbestos
`
`product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged,
`
`distributed, delivered, sold and/or otherwise placed in the stream of commerce by SONY
`
`ELECTRONICS, and more particularly denies upon information and belief that SONY
`
`ELECTRONICS mined, processed, manufactured, supplied, developed, tested, fashioned,
`
`packaged, delivered, sold and/or otherwise placed in the stream of commerce any asbestos product
`
`at the times and upon the dates alleged in the Complaint herein.
`
`Fiftieth Affirmative Defense
`
`50.
`
`SONY ELECTRONICS denies specifically that, during the periods of exposure
`
`alleged in the Complaint by Plaintiff, it mined, processed, manufactured, designed, supplied,
`
`developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the
`
`stream of commerce a substantial and/or any percentage of the asbestos products to which Plaintiff
`
`was caused to come into contact and which Plaintiff was caused to breathe, inhale and digest and
`
`14 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`which thereby caused the Plaintiff’s injuries and resulting damages alleged in the Complaint
`
`herein.
`
`Fifty-First Affirmative Defense
`
`51.
`
`In the event it should be proven at the time of trial that all the defendants are subject
`
`to market share liability, then, SONY ELECTRONICS’ share of such liability would be of such a
`
`de minimus amount as to make its contribution for damages negligible, and SONY
`
`ELECTRONICS would be entitled to contribution, either in whole or in part, from co-defendants.
`
`Fifty-Second Affirmative Defense
`
`52.
`
`SONY ELECTRONICS specifically denies that the asbestos products alleged in
`
`Plaintiff’s 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 liability.
`
`Fifty-Third Affirmative Defense
`
`53.
`
`To the extent that Plaintiff relies on the New York Law L. 1986, C. 682, Section 4
`
`as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive
`
`SONY ELECTRONICS of its constitutional rights and is wholly void and unenforceable.
`
`Fifty-Fourth Affirmative Defense
`
`54.
`
`Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty-
`
`Eight Insulations and/or Standard Insulations, Owens Corning, Pittsburgh Corning, A C and S,
`
`A.P. Green, and all other entities in bankruptcy relating thereto would be in violation of SONY
`
`ELECTRONICS’ constitutional rights.
`
`Fifty-Fifth Affirmative Defense
`
`55.
`
`If at the time of trial, it is shown that Plaintiff used products manufactured, supplied,
`
`distributed or sold by the answering defendant, said products or a portion thereof were supplied
`
`15 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`to, by or on behalf of the United States Government, or if those products were supplied or sold by
`
`the United States Government, the answering defendant raises any immunity from suit or from
`
`liability as conferred by the United States Government, and specifically pleads the government
`
`contractor defense.
`
`Fifty-Sixth Affirmative Defense
`
`56.
`
`SONY ELECTRONICS incorporates and adopts by reference any and all other
`
`and/or additional defenses, raised or to be raised by any other party and expressly reserves the right
`
`to amend and supplement its defenses herein to assert additional defenses and to make further
`
`admission upon completion of further investigation and discovery.
`
`Fifty-Seventh Affirmative Defense
`
`57.
`
`Plaintiff-Spouse’s loss of consortium claim is barred as a matter of law to the extent
`
`that the asbestos exposure alleged by Plaintiffs predates the date of Plaintiff’s and Plaintiff-
`
`Spouse’s marriage.
`
`CROSS-CLAIM AGAINST CO-DEFENDANTS
`
`58.
`
`If plaintiff was caused to sustain damage at the time and place set forth in the
`
`plaintiff’s Complaint through any carelessness, recklessness and/or negligence other than that of
`
`plaintiff, including but not limited to, the manufacture and distribution of the asbestos product,
`
`breaches of warranty, either express or implied, and in strict liability in tort, these damages will
`
`have been caused and brought about by reason of the carelessness, recklessness and/or negligence
`
`of the co-defendants not represented by this answer.
`
`59.
`
`If plaintiff should recover a judgment against this answering defendant, by
`
`operation of law or otherwise, it will be entitled to judgment, contribution and/or indemnity over
`
`and against the co-defendants not represented by this answer, their agents, servants and/or
`
`16 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`employees, by reason of their carelessness, recklessness and/or negligence for the amount of any
`
`such recovery, or a portion thereof, in accordance with the principals of law regarding
`
`apportionment of fault and damages, along with costs, disbursements and reasonable expenses of
`
`the investigation and defense of this action including reasonable attorneys’ fees.
`
`ANSWER TO ALL CROSS CLAIMS
`
`60. With respect to any cross-claims for contribution and/or indemnity asserted against
`
`SONY ELECTRONICS by any co-defendant(s), SONY ELECTRONICS hereby denies all such
`
`cross-claims and demands that they be dismissed.
`
`WHEREFORE, SONY ELECTRONICS demands judgment as follows:
`
`A.
`
`B.
`
`C.
`
`D.
`
`Dismissing the Complaint, together with the costs and disbursements of this action;
`
`Determining the ultimate rights and responsibilities among the defendants;
`
`Dismissing all Cross-Claims;
`
`Granting judgment in favor of this answering defendant over and against the other
`
`defendants as set forth above for the amount of the recovery against this answering defendant or
`
`such part thereof as may be determined, together with costs and disbursements of this action; and
`
`Such other and further relief as the Court may deem just and proper.
`
`E.
`
`
`
`Dated: New York, NY
`
`February 27, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`GOLDBERG SEGALLA LLP
`
`
`
`
`
`
`
`
`_______________________________
`Andrew J. Scholz, Esq.
`Attorneys for Defendant
`SONY ELECTRONICS, INC.
`711 3rd Avenue, Suite 1900
`New York, NY 10017
`(646) 292-8770
`
`
`17 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`
`
`
`
`
`
`
`
`
`VERIFICATION
`
`Andrew J. Scholz, being duly sworn herein says:
`
`1.
`
`That he is one of the attorneys for the defendant, SONY ELECTRONICS, INC., in
`
`this action; that he has read the answer to the Complaint 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 as to those matters, he believes them to be true.
`
`
`
`2.
`
`That the reason this verification is made by the deponent and not by defendant,
`
`SONY ELECTRONICS, INC., is that the answering defendant is outside the County of New York
`
`where the deponent maintains his office.
`
`
`
`3.
`
`That the sources of deponent’s knowledge and the grounds for his belief are from
`
`the correspondence with said defendant, SONY ELECTRONICS, INC., and correspondence and
`
`conversations with the representatives of said defendant, and from reports of investigation of the
`
`said defendant’s representatives, certain of which the correspondence and reports are now in
`
`deponent’s possession.
`
`Dated: New York, NY
`
`February 27, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`________________________
`Andrew J. Scholz
`
`
`
`18 of 19
`
`

`

`FILED: NEW YORK COUNTY CLERK 02/27/2024 03:20 PM
`NYSCEF DOC. NO. 46
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/27/2024
`
`
`
`
`
`CERTIFICATION
`
`ANDREW J. SCHOLZ, an attorney admitted to practice law in the Courts of the State of New
`
`York, affirms under the penalties of perjury, that the following statements are true:
`
`
`
`
`
`That I am the attorney for Defendant, SONY ELECTRONICS, INC.
`
`That I certify to the best of my knowledge, information and belief, formed after an inquiry
`
`reasonable under the circumstances, that presentation of Verified Answer of Defendant, SONY
`
`ELECTRONICS, INC. and the contentions therein are not frivolous as defined in 22 NYCRR 130-
`
`1.1-a, et seq.
`
`Dated: New York, NY
`
`February 27, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`GOLDBERG SEGALLA LLP
`
`
`
`_______________________________
`Andrew J. Scholz, Esq.
`Attorneys for Defendant
`SONY ELECTRONICS, INC.
`711 3rd Avenue, Suite 1900
`New York, NY 10017
`(646) 292-8770
`
`19 of 19
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket