FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`
`
`- against -
`
`
`
`Plaintiff(s),
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`- -------------------------------------------------------------------- X
`This Document Relates To:
`
`:
`
`
`: Index No. 190011/2024
`DENNIS KILKENNY AND PATRICIA KILKENNY,
`:
`
`
`:
`
`
`:
`
`
`:
` VERIFIED ANSWER
`
`:
`
`:
`AII ACQUISITION, LLC, F/K/A AII
`:
` ACQUISITION CORP., F/K/A ATHLONE
`:
` INDUSTRIES, INC., F/K/A HOLLAND
`:
` FURNACE COMPANY; et al.,
`:
`
`:
` Defendants.
`:
`
`:
`-- ------------------------------------------------------------------- X
`
`Defendant CANVAS MW, LLC, formerly known as The Marley-Wylain Company, LLC,
`
`incorrectly sued herein as CANVAS MW, LLC F/K/A THE MARLEY-WYLAIN COMPANY,
`
`LLC AND CANVAS SX, LLC, F/K/A SPX, LLC (“Canvas MW”), by its attorneys, Leader
`
`Berkon Colao & Silverstein LLP, hereby acknowledges receipt and answers Plaintiffs’ Verified
`
`Complaint (“Complaint”), upon information and belief, as follows:
`
`COMPLAINT
`
`1.
`
`Canvas MW denies knowledge and information sufficient to form a belief as to the
`
`truth of the allegations contained in paragraph “1” of the Complaint and refers all questions of law
`
`to this honorable Court.
`
`2.
`
`Canvas MW denies the allegations contained in paragraph “2” of the Complaint
`
`insofar as they are directed to Canvas MW and refers all questions of law to this honorable Court.
`
`Canvas MW admits that it did conduct business in this state from time to time; however, Canvas
`
`MW denies that such business is in any way related to the allegations contained these paragraphs.
`
`1 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`3.
`
`Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`
`
`allegations contained in paragraph “2” of the Complaint to the extent that such allegations relate
`
`to other parties and refers all questions of law to this honorable Court.
`
`4.
`
` Canvas MW denies the allegations contained in paragraphs “3” through “9” of the
`
`Complaint to the extent they are directed towards Canvas MW and refers all questions of law to
`
`this honorable Court.
`
`5.
`
`Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`allegations contained in paragraphs “3” through “9” of the Complaint to the extent that such
`
`allegations relate to other parties and refers all questions of law to this honorable Court.
`
`AS TO THE FIRST CAUSE OF ACTION
`
`Canvas MW repeats and reiterates each and every response hereinbefore made with
`
`6.
`
`the same force and effect as though the same were set forth at length herein.
`
`7.
`
`Canvas MW denies the allegations contained in paragraphs “10” through “35” of
`
`the Complaint to the extent that such allegations are directed towards Canvas MW and refers all
`
`questions of law to this honorable Court.
`
`8.
`
` Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`truth of the allegations contained in paragraphs “10” through “35” of the Complaint to the extent
`
`that such allegations relate to other parties and refers all questions of law to this honorable Court.
`
`9.
`
`10.
`
`
`
`Canvas MW denies all claims for compensatory and punitive damages.
`
`AS TO THE SECOND CAUSE OF ACTION
`
`Canvas MW repeats and reiterates each and every response hereinbefore made with
`
`the same force and effect as though the same were set forth at length herein.
`
`11.
`
`Canvas MW denies the allegations contained in paragraphs “36” through “39” of
`
`the Complaint to the extent that such allegations are directed towards Canvas MW and refers all
`
`questions of law to this honorable Court.
`
`
`
`2
`
`2 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`12.
`
`Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`
`
`truth of the allegations contained in paragraphs “36” through “39” of the Complaint to the extent
`
`that such allegations relate to other parties and refers all questions of law to this honorable Court.
`
`13.
`
`Canvas MW denies all claims for compensatory and punitive damages.
`
`AS TO THE THIRD CAUSE OF ACTION
`
`14.
`
`
` Canvas MW repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein.
`
`15.
`
`Canvas MW denies the allegations contained in paragraphs “40” and “41” of the
`
`Complaint to the extent that such allegations are directed towards Canvas MW and refers all
`
`questions of law to this honorable Court.
`
`16.
`
`Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`truth of the allegations contained in paragraphs “40” and “41” of the Complaint to the extent that
`
`such allegations relate to other parties and refers all questions of law to this honorable Court.
`
`17.
`
`18.
`
`Canvas MW denies all claims for compensatory and punitive damages.
`
`AS TO THE FOURTH CAUSE OF ACTION
`
`Canvas MW repeats and reiterates each and every response hereinbefore made with
`
`the same force and effect as though the same were set forth at length herein in response to
`
`paragraph “42” of the Complaint.
`
`19.
`
`Canvas MW denies the allegations contained in paragraphs “43” through “68” of
`
`the Complaint to the extent that such allegations are directed towards Canvas MW and refers all
`
`questions of law to this honorable Court.
`
`20.
`
`Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`truth of the allegations contained in paragraphs “43” through “68” of the Complaint to the extent
`
`that such allegations relate to other parties and refers all questions of law to this honorable Court.
`
`21.
`
`Canvas MW denies all claims for compensatory and punitive damages.
`
`
`
`3
`
`3 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`AS TO THE FIFTH CAUSE OF ACTION
`
`Canvas MW repeats and reiterates each and every response hereinbefore made
`
`22.
`
`with the same force and effect as though the same were set forth at length herein in response to
`
`paragraph “69” of the Complaint.
`
`23.
`
`Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`truth of the allegations contained in paragraphs “70” through “82” of the Complaint, as they relate
`
`to other defendants, and refers all questions of law to this honorable Court. Insofar as the
`
`allegations contained in these paragraphs are directed to Canvas MW, they are denied.
`
`24.
`
`25.
`
`Canvas MW denies all claims for compensatory and punitive damages.
`
`AS TO THE SIXTH CAUSE OF ACTION
`
`Canvas MW repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in response to
`
`paragraph “83” of the Complaint.
`
`26.
`
`Canvas MW denies the allegations contained in paragraphs “84” through “98” of
`
`the Complaint to the extent that such allegations are directed towards Canvas MW and refers all
`
`questions of law to this honorable Court.
`
`27.
`
`Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`truth of the allegations contained in paragraphs “84” through “98” of the Complaint to the extent
`
`that such allegations relate to other parties and refers all questions of law to this honorable Court.
`
`28.
`
`Canvas MW denies all claims for compensatory and punitive damages.
`
`AS TO THE SEVENTH CAUSE OF ACTION
`
`29.
`
`
`Canvas MW repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein.
`
`
`
`4
`
`4 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`30.
`
`Canvas MW denies the allegations contained in paragraph “99” of the Complaint
`
`
`
`to the extent that such allegations are directed towards Canvas MW and refers all questions of law
`
`to this honorable Court.
`
`31.
`
`Canvas MW denies knowledge or information sufficient to form a belief as to the
`
`truth of the allegations contained in paragraphs “99” of the Complaint to the extent that such
`
`allegations relate to other parties and refers all questions of law to this honorable Court.
`
`32.
`
`
`
`1.
`
`Canvas MW denies all claims for compensatory and punitive damages.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`The Complaint fails to state a cause of action upon which relief can be granted
`
`against Canvas MW.
`
`2.
`
`limitations.
`
`3.
`
`4.
`
`5.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are time barred by reason of the applicable statute(s) of
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred by the operation of the doctrine of estoppel.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`Plaintiff has waived all claims against Canvas MW.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`This Court lacks both general and specific personal jurisdiction over Canvas MW.
`
`The answering defendant further objects to and denies an exercise of general jurisdiction over it,
`
`notwithstanding any Plaintiffs’ allegations in the complaint purporting to establish a basis for
`
`general jurisdiction (see, e.g., Daimler AG v. Bauman, 571 U.S. 117 (2014); BNSF Ry. Co. v.
`
`Tyrrell, 137 S.Ct. 1549 (2017); Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., S.F. Cty, 137 S.Ct.
`
`1773 (2017); cf., Gibson v. Air & Liquid Sys. Corp., 173 AD3d 519 [1st Dept., 2019]).
`
`
`
`5
`
`5 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`6.
`
`7.
`
`estoppel.
`
`The venue of this action is improper.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`Plaintiffs’ claims are barred by the doctrines of res judicata and/or collateral
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`8.
`
`Plaintiffs’ speculative, uncertain and/or contingent damages have not accrued and
`
`are not recoverable.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`9.
`
`This cause of action must be dismissed in the event Plaintiff has another action
`
`pending against Canvas MW for the same cause of action in another court.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`10.
`
`In the event Plaintiff executed a settlement agreement releasing and discharging
`
`Canvas MW from all claims arising out of Plaintiffs’ alleged injury, all claims alleged by
`
`Plaintiff should be dismissed.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`11.
`
`To the extent that Plaintiff has given a release or covenant not to sue or not to
`
`enforce a judgment to an alleged co-tortfeasor of Canvas MW, 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 AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`12.
`
`Plaintiff was not injured by exposure to Canvas MW’s products.
`
`
`
`
`
`
`
`6
`
`6 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`13.
`
`In the event that Plaintiff was 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 AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`14.
`
`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 Plaintiff, including contributory negligence and assumption of risk, in the
`
`proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct
`
`which caused the damages.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`15.
`
`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 Plaintiff, including contributory negligence and
`
`assumption of risk.
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`16.
`
`To the extent that Plaintiff was injured as alleged in the Complaint, which Canvas
`
`MW denies, said injury was proximately caused by the negligence, breach of warranty and/or
`
`strict liability of persons and/or entities other than Canvas MW.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`17.
`
`To the extent that Plaintiff was injured as alleged in the Complaint, which Canvas
`
`MW denies, such injury was the result of intervening and/or superseding acts or omissions of
`
`parties over whom Canvas MW had no control or right to control.
`
`
`
`
`
`
`
`7
`
`7 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`18.
`
`At all times relevant hereto, the knowledge of Plaintiffs’ employer(s) was superior
`
`to that of Canvas MW with respect to possible health hazards associated with Plaintiffs’
`
`employment, and, therefore, if there was any duty to warn or provide protection to Plaintiff, it
`
`was the duty of said employer, not of Canvas MW, and breach of that duty was an intervening
`
`and/or superseding cause of the injuries allegedly sustained by Plaintiff.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`
`19.
`
`At all times during the conduct of their corporate operations, the agents, servants
`
`and/or employees of Canvas MW used proper methods in their production activities in
`
`conformity to the available knowledge and research of the scientific and industrial communities.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`
`20.
`
`To the extent that Plaintiff sustained injuries from the use of Canvas MW
`
`products, which Canvas MW denies, such injuries resulted from the unforeseeable misuse, abuse,
`
`alteration, modification, and/or unauthorized handling of the product by Plaintiff, or by third
`
`parties, over whom Canvas MW had no control or right to control.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`21.
`
`Plaintiff voluntarily assumed the risks associated with the use of or exposure to
`
`the products at issue.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`22.
`
`Canvas MW 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 AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`
`23.
`
`Plaintiff contributed to the injuries alleged by the use of other substances,
`
`products, medications and drugs.
`
`
`
`8
`
`8 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`24.
`
`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
`
`Canvas MW as there was no privity of contract between Plaintiff and Canvas MW.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`25.
`
`Plaintiff never purchased, directly or indirectly, any asbestos-containing product
`
`or materials from Canvas MW, nor did Plaintiff ever receive or rely upon any representation
`
`allegedly made by Canvas MW.
`
`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`
`26.
`
`To the extent that Plaintiff was exposed to any product manufactured or supplied
`
`by Canvas MW, which Canvas MW denies, said exposure was de minimis and not a substantial
`
`contributing factor to any asbestos-related disease which Plaintiff may have developed, thus
`
`requiring dismissal of the Complaint against Canvas MW.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`27.
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
`
`indispensable parties.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`28.
`
`To the extent that Plaintiff is entitled to damages, which Canvas MW denies,
`
`Canvas MW is entitled to a set-off for all Workers’ Compensation payments received by
`
`Plaintiff.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`
`29.
`
`In accordance with CPLR 1601, Canvas MW’s liability for non-economic loss is
`
`limited to its equitable share of the total liability for non-economic loss.
`
`
`
`
`
`
`
`9
`
`9 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`
`30.
`
`In accordance with CPLR 4545(c), Canvas MW is entitled to a set-off for any past
`
`or future costs or expenses incurred or to be incurred by Plaintiff 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 AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`31.
`
`Plaintiffs’ action is barred by the government contractor’s defense to the extent
`
`Canvas MW was a contractor supplying materials, labor and or services to the United States
`
`Government.
`
`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`
`32.
`
`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 Canvas MW neither knew, had reason to know, nor could have known of
`
`any foreseeable or significant risk or harm to Plaintiff in the normal or expected use of Canvas
`
`MW’s products.
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`
`33.
`
`Any injuries sustained by Plaintiff resulted from Plaintiffs’ alleged use of or
`
`exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance
`
`with mandatory specifications established by persons or entities other than Canvas MW,
`
`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 Canvas MW concerning the properties and characteristics of asbestos and
`
`asbestos-containing products.
`
`
`
`
`
`
`
`10
`
`10 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`
`34.
`
`Any asbestos-containing products were supplied according to the purchaser’s or
`
`user’s specifications and standards.
`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`
`35.
`
`Canvas MW was under no legal duty to warn Plaintiff 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 Plaintiff
`
`alleges exposure to such products, were in a far better position to warn Plaintiff 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 injury.
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`
`36.
`
`Plaintiff was reasonably and adequately warned of any alleged risks associated
`
`with the use of or exposure to asbestos-containing products.
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`
`37.
`
`Timely and/or proper notice was not given to Canvas MW as to any alleged
`
`breach of warranty.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`
`38.
`
`To the extent Plaintiffs’ claims are based on an alleged breach of warranty,
`
`Plaintiff did not rely on any warranty.
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`
`39.
`
`Any oral warranties upon which Plaintiff allegedly relied are inadmissible under
`
`the Statute of Frauds.
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`
`40.
`
`That to the extent that plaintiff relies on Section 4 of the New York Laws 1986, c.
`
`682 as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and
`
`
`
`11
`
`11 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`deprive(s) the answering Defendant of its constitutional rights and is/are wholly void and
`
`unenforceable.
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`
`41.
`
`This action does not fall within one or more of the exceptions set forth in CPLR§
`
`1602 and Canvas MW is responsible only for its allocated share of any verdict that may be
`
`rendered against it.
`
`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`
`42.
`
`Canvas MW’s conduct was not reckless, malicious, willful or grossly negligent,
`
`and consequently, Plaintiff is not entitled to exemplary and/or punitive damages.
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`
`43.
`
`Any claims by Plaintiff for exemplary and/or punitive damages are barred
`
`because such damages are not recoverable or warranted.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`
`44.
`
`That to the extent the plaintiff seeks punitive damages against this answering
`
`Defendant, and rely on Section 4 of the New York Laws 1986, c. 682 as grounds for reviving and
`
`maintaining the action, such damages are improper and are not authorized by law since this statute
`
`does not revive any claims for punitive damages, leaving such claims time-barred in their entirety.
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`
`45.
`
`These actions and the causes pleaded by the plaintiffs herein are barred by virtue of
`
`Article 1, Section 10 of the United States Constitution.
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`
`46.
`
`That to the extent that plaintiff seeks punitive damages against the answering
`
`Defendant, these damages are improper and unwarranted, not authorized by law, and are
`
`unconstitutional. Subjecting this Defendant to multiple trials and the multiple imposition of
`
`punitive damages for a single course of conduct is a violation of both substantive and procedural
`
`
`
`12
`
`12 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`due process under the Constitution of the United States and the Constitution of the State of New
`
`York.
`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`
`47.
`
`That plaintiff’s demand for punitive damages is barred by the proscription of the
`
`Eighth Amendment to the United States Constitution, as applied to the States through the
`
`Fourteenth Amendment and Article I, Section 5 of the New York State Constitution, prohibiting
`
`the imposition of excessive fines.
`
`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
`
`48.
`
`That plaintiff’s demand for punitive damages is barred by the “ex post facto” clause
`
`of the United States Constitution.
`
`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
`
`49.
`
`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, Canvas
`
`MW 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 AND FOR CROSS-CLAIMS
`
`
`
`AGAINST EACH OF THE OTHER DEFENDANTS
`
`1.
`
`If damages were sustained at the time(s) and place(s) set forth in the 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.
`
`
`
`13
`
`13 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`2.
`
`If Plaintiffs should recover a judgment against Canvas MW, by operation of law
`
`
`
`or otherwise, Canvas MW 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
`
`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
`
`Canvas MW hereby answers the cross-claims of each of the other defendants named in
`
`this action, however asserted or alleged, and says:
`
`1.
`
`All cross-claims for contribution and/or indemnification alleged against Canvas
`
`MW by any party Defendant are denied.
`
`
`
`
`
`
`
`
`14
`
`14 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`
`
`WHEREFORE, Defendant Canvas MW demands judgment dismissing the Complaint as
`
`to it, with prejudice, together with the costs, attorney fees and disbursements of this action, and,
`
`to the extent of any recovery by Plaintiffs against Canvas MW herein, further demands judgment
`
`for contribution and/or indemnification against each of the other defendants named in the
`
`Complaint together with Canvas MW’s costs and disbursements in this action.
`
`
`
`LEADER BERKON COLAO
`& SILVERSTEIN LLP
`
`
`
`
`
`
`
`/s/ Ryan Hersh
`By:
` Ryan Hersh, Esq.
`
`Attorneys for Defendant
` Canvas MW, LLC, formerly known as
`The Marley-Wylain Company, LLC
`630 Third Avenue
`
` New York, New York 10017
`
`(212) 486-2400
`
`
`Dated: New York, New York
`March 12, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: Mark Bibro, Esq.
`THE EARLY LAW FIRM, L.L.C.
`Attorneys for Plaintiff(s)
`360 Lexington Avenue, 20th Floor
`New York, NY 10017
`212.986.2233
`
`
`
`
`
`15
`
`15 of 16
`
`

`

`FILED: NEW YORK COUNTY CLERK 03/13/2024 11:08 AM
`NYSCEF DOC. NO. 68
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/13/2024
`
`
`
`STATE OF NEW YORK
`
`)
`: SS:
`COUNTY OF NEW YORK )
`
`
`
`
`VERIFICATION
`
`
`
`Ryan Hersh, being duly sworn, deposes and says that I am an attorney at law with the
`
`firm of Leader Berkon Colao & Silverstein LLP, having their offices at 630 Third Avenue, in the
`
`City, County and State of New York, attorneys for defendant The Canvas MW Company in the
`
`within action; that I have read the foregoing Verified Answer to Plaintiff’s Verified Complaint,
`
`Cross-Claim and Answer to Cross-Claims of The Canvas MW Company, and know the contents
`
`thereof; that the same is true upon information and belief and I believe it to be true; that the
`
`grounds of my belief are public records, records and documents currently in my possession
`
`pertaining to this matter, and conversations with client’s agents; and that the reason why this
`
`verification is made by me and not by said defendant is that said defendant’s principal place of
`
`business is located outside New York County where Leader Berkon Colao & Silverstein LLP
`
`maintains its offices.
`
`
`The undersigned affirms that the foregoing statements are true, under the penalties of
`
`perjury.
`
`
`
`Dated: March 12, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` by: /s/ Ryan Hersh
`
` RYAN HERSH
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`16
`
`16 of 16
`
`