FILED: NEW YORK COUNTY CLERK 04/17/2024 09:22 AM
`NYSCEF DOC. NO. 84
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 04/17/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`DENNIS KILKENNY AND PATRICIA KILKENNY,
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`Index No.: 190011/2024
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` Plaintiff(s),
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` -against-
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`AII ACQUISITION, LLC, et al.,
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` Defendant(s).
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`VERIFIED ANSWER ON
`BEHALF OF DEFENDANT
`KOHLER
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`Defendant, KOHLER, improperly pled as KOHLER Company, (hereinafter “KOHLER”),
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`by its attorneys, GOLDBERG SEGALLA LLP, for its verified answer to the supplemental summons
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`and verified third amended complaint (“Complaint”) herein states:
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`1.
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`Defendant Kohler denies knowledge or information sufficient to form a belief as to
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`the allegations contained in paragraphs 1, 5 and 9 of the Complaint.
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`2.
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`Defendant Kohler denies each and every allegation contained in paragraph 2 of the
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`Complaint insofar as they pertain to KOHLER, except avers that KOHLER is a foreign corporation
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`authorized to do business in the State of New York, denies knowledge or information sufficient to
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`form a belief as to the truth of remaining allegations insofar as they pertain to other defendants, and
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`refers all questions of law to this Court at the time of trial.
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`3.
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`Defendant Kohler denies each and every allegation contained in paragraphs 3, 4, 6,
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`7, and 8 of the Complaint insofar as they pertain to KOHLER, denies knowledge or information
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`sufficient to form a belief as to the truth of those allegations insofar as they pertain to other
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`defendants, and respectfully refers all questions of law to the Court.
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`AS TO THE FIRST CAUSE OF ACTION
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`4.
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`With respect to the unnumbered sentence, KOHLER repeats, reiterates and realleges
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`each and every response to paragraphs 1 through 9 of the Complaint as if fully set forth herein.
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`5.
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`The allegations contained in paragraph 10 of the Complaint pertain to other parties
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`and, therefore, do not require a response. However, to the extent these allegations do require a
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`response, KOHLER denies each and every allegation in paragraph 10 of the Complaint, and refers
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`all questions of law to this Court at the time of trial.
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`6.
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`Defendant Kohler denies knowledge or information sufficient to form a belief as to
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`the allegations contained in paragraph 11 of the Complaint.
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`7.
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`Defendant Kohler denies each and every allegation contained in paragraphs 12, 13,
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`14, 15, 16, 17 (including subparagraphs a-h), 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31,
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`32, 33 (including subparagraphs a-j), 34, and 35 of the Complaint insofar as they pertain to
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`KOHLER, denies knowledge or information sufficient to form a belief as to the truth of those
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`allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to
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`the Court.
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`AS TO THE SECOND CAUSE OF ACTION
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`8.
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`With respect to the unnumbered sentence, KOHLER repeats, reiterates and realleges
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`each and every response to paragraphs 1 through 35 of the Complaint as if fully set forth herein.
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`9.
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`Defendant Kohler denies each and every allegation contained in paragraphs 36, 37,
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`38, and 39 of the Complaint insofar as they pertain to KOHLER, denies knowledge or information
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`sufficient to form a belief as to the truth of those allegations insofar as they pertain to other
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`defendants, and respectfully refers all questions of law to the Court.
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`FILED: NEW YORK COUNTY CLERK 04/17/2024 09:22 AM
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`AS TO THE THIRD CAUSE OF ACTION
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`10. With respect to the unnumbered sentence, KOHLER repeats, reiterates and realleges
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`each and every response to paragraphs 1 through 39 of the Complaint as if fully set forth herein.
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`11.
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`Defendant Kohler denies each and every allegation contained in paragraphs 40 and
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`41 of the Complaint insofar as they pertain to KOHLER, denies knowledge or information sufficient
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`to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and
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`respectfully refers all questions of law to the Court.
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`AS TO THE FOURTH CAUSE OF ACTION
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`12. With respect to the unnumbered sentence and paragraph 42, KOHLER repeats,
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`reiterates and realleges each and every response to paragraphs 1 through 41 of the Complaint as if
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`fully set forth herein.
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`13.
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`Defendant Kohler denies each and every allegation contained in paragraphs 43, 44,
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`45, 46, 47, 48, 49, 50, 51, 52 (including subparagraphs a-l), 53, 54, 55, 56, 57, 58, 59, 60, 61, 62,
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`63, 64, 65, 66, and 68 of the Complaint insofar as they pertain to KOHLER CO., denies knowledge
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`or information sufficient to form a belief as to the truth of those allegations insofar as they pertain
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`to other defendants, and respectfully refers all questions of law to this Court at the time of trial.
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`14.
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`Defendant KOHLER CO. denies knowledge or information sufficient to form a belief
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`as to the allegations contained in paragraph 67 of the Complaint.
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`AS TO THE FIFTH CAUSE OF ACTION
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`15. With respect to the unnumbered sentence and paragraph 69, KOHLER repeats,
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`reiterates and realleges each and every response to paragraphs 1 through 68 of the Complaint as if
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`fully set forth herein.
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`16.
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`The allegations contained in paragraphs 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81,
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`and 82 of the Complaint pertain to other parties and, therefore, do not require a response. However,
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`to the extent these allegations do require a response, KOHLER denies each and every allegation in
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`paragraphs 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, and 82 of the Complaint, and refers all
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`questions of law to this Court at the time of trial.
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`AS TO THE SIXTH CAUSE OF ACTION
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`17. With respect to the unnumbered sentence and paragraph 83, KOHLER repeats,
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`reiterates and realleges each and every response to paragraphs 1 through 82 of the Complaint as if
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`fully set forth herein.
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`18.
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`The allegations contained in paragraphs 84, 85, 86, 87, 88, 89, 90, 92, and 93 of the
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`Complaint pertain to other parties and, therefore, do not require a response. However, to the extent
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`these allegations do require a response, KOHLER denies each and every allegation in paragraphs
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`84, 85, 86, 87, 88, 89, 90, 91, 92, and 93 of the Complaint.
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`19.
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`Defendant Kohler denies each and every allegation contained in paragraphs 91, 94,
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`95, 96, and 97 of the Complaint insofar as they pertain to KOHLER CO., denies knowledge or
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`information sufficient to form a belief as to the truth of those allegations insofar as they pertain to
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`other defendants, and respectfully refers all questions of law to this Court at the time of trial.
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`20.
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`The allegations contained in paragraph 98 of the Complaint do not require a response;
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`however, to the extent a response is required, KOHLER denies the allegations contained in
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`paragraph 98 of the Complaint, and refers all questions of law to this Court at the time of trial.
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`AS TO THE SEVENTH CAUSE OF ACTION
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`21. With respect to the unnumbered sentence, KOHLER repeats, reiterates and realleges
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`each and every response to paragraphs 1 through 98 of the Complaint as if fully set forth herein.
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`22.
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`Defendant KOHLER denies each and every allegation contained in paragraph 99 of
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`the Complaint insofar as they pertain to KOHLER, denies knowledge or information sufficient to
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`form a belief as to the truth of those allegations insofar as they pertain to other defendants and refers
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`all questions of law to this Court at the time of trial.
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`23.
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`KOHLER denies all other allegations not otherwise admitted or denied.
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`AFFIRMATIVE DEFENSES
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`First Affirmative Defense
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`24.
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`That defendant, KOHLER, denies any negligence, culpable conduct or liability on its
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`part, but if said defendant is ultimately found to be liable to plaintiffs, then, pursuant to Article 16
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`of the Civil Practice Law & Rules, it shall only be liable for its equitable share of plaintiff’s recovery
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`since any liability which will be found against it will be insufficient to impose joint liability.
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`Second Affirmative Defense
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`25.
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`To the extent that the Complaint herein and the claims made by plaintiffs were not
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`commenced within the time limited by law, the Complaint is barred by the applicable statute of
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`limitations.
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`Third Affirmative Defense
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`26.
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`That to the extent that plaintiffs have failed and neglected to maintain this action in a
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`swift, diligent and timely fashion, the plaintiffs’ Complaint is barred by laches.
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`Fourth Affirmative Defense
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`27.
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`Plaintiffs have failed to plead the claims of fraud and conspiracy with proper
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`specificity and, as such, all claims premised on fraud and conspiracy must be dismissed.
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`Fifth Affirmative Defense
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`28.
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`The Complaint and each and every allegation considered separately fail to state any
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`cause of action against this answering defendant upon which relief can be granted.
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`Sixth Affirmative Defense
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`29.
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`That the injuries and/or illnesses to plaintiffs, if any, are governed by the applicable
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`Workers’ Compensation statutes and shall have constituted an industrial disability and plaintiff’s
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`exclusive remedy, if any, shall lie within the terms and ambit of said statutes.
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`Seventh Affirmative Defense
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`30.
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`That the injuries and/or illnesses, if any, sustained by plaintiffs were caused or
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`contributed by the fault, neglect and want of care on the part of plaintiffs or on the part of others for
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`whose acts or omissions or breach of legal duty KOHLER is not liable.
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`Eighth Affirmative Defense
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`31.
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`In the event that plaintiffs used the products(s) designated in the Complaint, said
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`product(s) was (were) misused or improperly used, which misuse or improper use proximately
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`caused and contributed, in whole or in part, to the claims alleged by plaintiffs in the Complaint.
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`Ninth Affirmative Defense
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`32.
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`Upon information and belief, that if the plaintiffs sustained any of the injuries, losses
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`and damages complained of in the Complaint, such injuries, losses and damages were caused or
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`brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault or
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`other culpable conduct of plaintiffs. Upon information and belief, that any recovery herein by the
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`plaintiffs, if any, must be diminished and reduced in the proportion which the said culpable conduct
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`of the plaintiffs bears to the alleged culpable conduct of the defendant, if any, which allegedly caused
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`said injuries, losses or damages.
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`Tenth Affirmative Defense
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`33. While this answering defendant denies the allegations of plaintiffs with respect to
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`negligence, statutory liability, strict liability, injury and damages, to the extent that plaintiffs may be
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`able to prove the same, they were the result of intervening and/or interceding acts of superseding
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`negligence on the part of third parties over which this answering defendant had neither control nor
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`right of control.
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`Eleventh Affirmative Defense
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`34.
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`That to the extent that plaintiff alleges rights hereunder derived from oral warranties
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`or undertakings on the part of KOHLER, the Complaint is barred by the applicable statute of frauds.
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`Twelfth Affirmative Defense
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`35.
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`If plaintiffs used any products of KOHLER, the answering defendant alleges upon
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`information and belief that said products were produced pursuant to government specifications and
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`as such, KOHLER is relieved of any responsibility for the injuries which plaintiffs claim.
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`Thirteenth Affirmative Defense
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`36.
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`If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the
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`product caused and/or contributed to the alleged damages or injuries to plaintiffs, then, this
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`answering defendant requests that the amount of damages which might be recoverable shall be
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`diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication,
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`attributed to the plaintiff, his co-workers and/or employers bears to the conduct which caused the
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`alleged damages or injuries.
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`Fourteenth Affirmative Defense
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`37.
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`That the injuries and/or illnesses to plaintiffs, if any, arose in whole or in part, out of
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`the risks, hazards and dangers incident to the occupation of said plaintiffs, all of which were open,
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`obvious and well known to plaintiffs, and the action is barred by virtue of plaintiffs’ assumption of
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`the risks thereof.
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`Fifteenth Affirmative Defense
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`38.
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`That to the extent that KOHLER conformed to the scientific knowledge and research
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`data available throughout the industry and scientific community, KOHLER shall have fulfilled its
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`obligations, if any, herein, and plaintiffs’ claims shall be barred, in whole or in part.
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`Sixteenth Affirmative Defense
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`39.
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`Upon information and belief, KOHLER conformed to the scientific knowledge and
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`data available in the industry and fulfilled its obligations, if any, and its activities and undertakings,
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`if any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and the
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`plaintiff may not recover herein any exemplary damages or punitive damages against KOHLER.
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`Seventeenth Affirmative Defense
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`40.
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`That the cause of action pleaded in the Complaint insofar as it asserts an alleged cause
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`of action for express and/or implied warranties and the alleged breaches thereof, as against
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`KOHLER, is legally insufficient by reason of the failure to allege privity of contract and/or privity
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`of warranties between the plaintiffs and KOHLER.
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`Eighteenth Affirmative Defense
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`41.
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`To the extent that any breach of warranty is alleged, plaintiffs have failed to give
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`proper and prompt notice of any such breach of warranty to KOHLER.
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`Nineteenth Affirmative Defense
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`42.
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`Plaintiffs did not directly or indirectly purchase any asbestos-containing products or
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`materials from this answering defendant and plaintiffs neither received nor relied upon any
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`representation or warranty allegedly made by this answering defendant.
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`Twentieth Affirmative Defense
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`43.
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`That to the extent that the cause pleaded by plaintiffs herein fails to accord with the
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`Uniform Commercial Code, including, but not limited to §2-725 thereof, plaintiffs’ Complaint is
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`barred.
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`Twenty-First Affirmative Defense
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`44.
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`That to the extent that any of the products for which liability is charged herein to
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`KOHLER, which is specifically denied, were modified, assembled, altered, quantified or in any way
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`materially varied, which same may be casually related to the claims of plaintiffs, the actions of
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`plaintiff’s are barred herein.
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`Twenty-Second Affirmative Defense
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`45.
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`Upon information and belief, that insofar as the plaintiffs allege, as against KOHLER,
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`any willful and wanton misconduct, and that if knowingly and intentionally sold a product or
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`products that it knew to be unreasonably dangerous, all of which KOHLER denies, any such cause
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`of action or causes of action accrued more than one year prior to the commencement of this lawsuit
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`and are time-barred by the one-year statute of limitations.
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`Twenty-Third Affirmative Defense
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`46.
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`That to the extent that the use, application, employment, surrounding conditions,
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`safety precautions and other circumstances attendant upon the material allegedly used by plaintiffs
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`were determined, controlled, selected or limited by his employer or by others for whose acts,
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`omissions or breach KOHLER is not liable, the Complaint is barred, in whole or in part.
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`Twenty-Fourth Affirmative Defense
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`47.
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`Plaintiffs’ claims are barred by the doctrine of res judicata and/or collateral estoppel.
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`Twenty-Fifth Affirmative Defense
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`48.
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`If plaintiffs used any products of KOHLER, upon information and belief, KOHLER
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`alleges that said products were used improperly, and without proper safety protection which was
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`available from plaintiffs’ employer(s).
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`Twenty-Sixth Affirmative Defense
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`49.
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`Plaintiffs’ employer(s) was a sophisticated purchaser upon which devolved all
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`responsibility for the use of products referred to in plaintiff’s Complaint.
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`Twenty-Seventh Affirmative Defense
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`50.
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`At all times material hereto, the state of the medical and industrial art was such that
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`there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently
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`dangerous or hazardous character or nature of products containing asbestos when used in the manner
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`and purpose described by plaintiffs, therefore, there was no duty for KOHLER to know of such
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`character or nature or to warn plaintiffs or others similarly situated.
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`Twenty-Eighth Affirmative Defense
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`51.
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`Plaintiffs’ cause of action for exemplary and punitive damages is barred because such
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`damages are not recoverable or warranted in this action.
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`Twenty-Ninth Affirmative Defense
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`52.
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`The imposition of punitive damages on the facts alleged in the Complaint would
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`violate the due process clauses of the Constitutions of the United States and the State of New York.
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`Thirtieth Affirmative Defense
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`53.
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`The imposition of punitive damages on the facts alleged in the Complaint would
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`violate the excessive fines clause of the Constitution of the State of New York.
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`Thirty-First Affirmative Defense
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`54.
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`The imposition of punitive damages on the facts alleged in the Complaint is barred
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`by the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article
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`1, Section 6 of the New York State Constitution.
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`Thirty-Second Affirmative Defense
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`55.
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`The imposition of punitive damages on the facts alleged in the Complaint is barred
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`by the ex post facto clause of the United States Constitution.
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`Thirty-Third Affirmative Defense
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`56.
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`The imposition of punitive damages on the facts alleged in the Complaint is barred
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`by the United States Constitution and by the Constitution of the State of New York.
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`Thirty –Fourth Affirmative Defense
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`57.
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`The action cannot proceed in the absence of all parties who should be named in
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`accordance with CPLR §1001.
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`Thirty -Fifth Affirmative Defense
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`58.
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`In the event that the plaintiff(s) recover(s) damages in this action, which have been
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`paid or are payable by a collateral source, this answering defendant will seek a collateral source
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`offset pursuant to Article 45 of the CPLR.
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`Thirty –Sixth Affirmative Defense
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`59.
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`Plaintiffs contributed to their illnesses by the use, either in whole or in part, of other
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`substances, products, medications and drugs. To the extent that plaintiffs used any tobacco products,
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`any liability should be reduced by the extent of any use and/or injuries related thereto or caused
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`thereby.
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`Thirty-Seventh Affirmative Defense
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`60.
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`Upon information and belief, the incident complained of in the Complaint and the
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`alleged damages were caused by the culpable conduct of the remaining parties to this action. By
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`reason of the foregoing, contribution should be awarded pursuant to Article 14 of the CPLR.
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`Thirty-Eighth Affirmative Defense
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`61.
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`Liability for non-economic loss is limited by the applicable provisions of the Article
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`16 of the CPLR.
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`Thirty-Ninth Affirmative Defense
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`62.
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`That in the event there has been a settlement between the plaintiff and any joint
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`tortfeasor, then defendant hereby pleads and seeks the full benefit of §15-108 of the General
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`Obligations Law, that plaintiffs’ claim against this answering defendant be reduced to the fullest
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`extent permitted by §15-108 of the General Obligations Law.
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`Fortieth Affirmative Defense
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`63.
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`Plaintiffs do not have the legal capacity to sue and therefore does not have standing
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`to commence or maintain this action.
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`Forty-First Affirmative Defense
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`64.
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`This action is barred by the doctrine of judicial estoppel.
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`Forty-Second Affirmative Defense
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`65.
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`This Court lacks in personam jurisdiction in this matter by reason of improper service
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`of process.
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`Forty-Third Affirmative Defense
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`66.
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`This Court lacks subject matter jurisdiction.
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`Forty- Fourth Affirmative Defense
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`67.
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`This Court lacks in personam jurisdiction.
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`Forty-Fifth Affirmative Defense
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`68.
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`The action should be dismissed because the forum for this matter is improper.
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`Forty-Sixth Affirmative Defense
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`69.
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`Pursuant to CPLR 503, the action should be dismissed because of improper venue.
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`Forty- Seventh Affirmative Defense
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`70.
`
`KOHLER did not own, control, manufacture or distribute any alleged product to
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`which plaintiff claims he was exposed.
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`Forty-Eighth Affirmative Defense
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`71.
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`KOHLER did not assume any liability for any entity that may have produced products
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`to which plaintiff claims he was exposed.
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`Forty-Ninth Affirmative Defense
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`72.
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`KOHLER denies that plaintiff had any exposure to any asbestos product mined,
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`processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered,
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`sold and/or otherwise placed in the stream of commerce by KOHLER, and more particularly denies
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`upon information and belief that KOHLER mined, processed, manufactured, supplied, developed,
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`tested, fashioned, packaged, delivered, sold and/or otherwise placed in the stream of commerce any
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`asbestos product at the times and upon the dates alleged in the Complaint herein.
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`Fiftieth Affirmative Defense
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`73.
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`KOHLER denies specifically that, during the periods of exposure alleged in the
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`Complaint by the plaintiff, it mined, processed, manufactured, designed, supplied, developed, tested,
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`fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce
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`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 which thereby caused
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`the plaintiff’s injuries and resulting damages alleged in the Complaint herein.
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`Fifty-First Affirmative Defense
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`74.
`
`In the event it should be proven at the time of trial that all the defendants are subject
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`to market share liability, then, this answering defendant’s share of such liability would be of such a
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`de minimus amount as to make its contribution for damages negligible, and this answering defendant
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`would be entitled to contribution, either in whole or in part, from co-defendants.
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`Fifty-Second Affirmative Defense
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`75.
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`This answering defendant specifically denies that the asbestos products alleged in
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`plaintiff’s Complaint are products within the meaning and scope of the Restatement of Torts §402A,
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`and as such, the Complaint fails to state a cause of action in strict liability.
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`Fifty-Third Affirmative Defense
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`76.
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`To the extent that plaintiff relies on the New York Law L. 1986, C. 682, Section 4 as
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`grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive
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`KOHLER of its constitutional rights and is wholly void and unenforceable.
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`Fifty-Fourth Affirmative Defense
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`77.
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`Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty-
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`Eight Insulations and/or Standard Insulations, Owens Corning, Pittsburgh Corning, A C and S, A.P.
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`Green, and all other entities in bankruptcy relating thereto would be in violation of KOHLER’s
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`constitutional rights.
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`Fifty-Fifth Affirmative Defense
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`78.
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`If at the time of trial, it is shown that plaintiff used products manufactured, supplied,
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`distributed or sold by the answering defendant, said products or a portion thereof were supplied to,
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`by or on behalf of the United States Government, or if those products were supplied or sold by the
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`United States Government, the answering defendant raises any immunity from suit or from liability
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`as conferred by the United States Government, and specifically pleads the government contractor
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`defense.
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`Fifty-Sixth Affirmative Defense
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`79.
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`The plaintiff-spouse’s loss of consortium claim is barred as a matter of law to the
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`extent that the asbestos exposure alleged by the plaintiff predates the date of the plaintiff’s and
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`plaintiff-spouse’s marriage.
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`Fifty-Seventh Affirmative Defense
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`80.
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`The answering defendant incorporates and adopts by reference any and all other
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`and/or additional defenses, raised or to be raised by any other party and expressly reserves the right
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`to amend and supplement its defenses herein to assert additional defenses and to make further
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`admission upon completion of further investigation and discovery.
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`Fifty-Eighth Affirmative Defense
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`81.
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`Insofar as Plaintiff’s claims against KOHLER stem from alleged misconduct,
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`negligence, or other wrongful act or tort of any purported corporate successor or affiliate, Plaintiff’s
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`claims are barred because KOHLER was not responsible for any such acts and KOHLER has no
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`predecessor liability with regard to any such entity.
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`CROSS-CLAIM AGAINST CO-DEFENDANTS
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`82.
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`If plaintiff was caused to sustain damage at the time and place set forth in the
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`plaintiff’s Complaint through any carelessness, recklessness and/or negligence other than that of
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`plaintiff, including but not limited to, the manufacture and distribution of the asbestos product,
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`breaches of warranty, either express or implied, and in strict liability in tort, these damages will have
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`been caused and brought about by reason of the carelessness, recklessness and/or negligence of the
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`co-defendants not represented by this answer.
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`83.
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`If plaintiff should recover a judgment against this answering defendant, by operation
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`of law or otherwise, it will be entitled to judgment, contribution and/or indemnity over and against
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`the co-defendants not represented by this answer, their agents, servants and/or employees, by reason
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`of their carelessness, recklessness and/or negligence for the amount of any such recovery, or a
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`portion thereof, in accordance with the principals of law regarding apportionment of fault and
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`damages, along with costs, disbursements and reasonable expenses of the investigation and defense
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`of this action including reasonable attorneys’ fees.
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`ANSWER TO ALL CROSS CLAIMS
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`84. With respect to any cross-claims for contribution and/or indemnity asserted against
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`KOHLER by any co-defendant(s), KOHLER hereby denies all such cross-claims and demands that
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`they be dismissed.
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`WHEREFORE, KOHLER demands judgment as follows:
`A.
`Dismissing the Complaint, together with the costs and disbursements of this action;
`B.
`Determining the ultimate rights and responsibilities among the defendants;
`C.
`Dismissing all Cross-Claims;
`D.
`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
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`E.
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`Such other and further relief as the Court may deem just and proper.
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`Dated: New York, NY
`April 17, 2024
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`GOLDBERG SEGALLA LLP
`
`_______________________________
`Andrew J. Scholz, Esq.
`Attorneys for Defendant
`KOHLER CO.
`711 3rd Avenue, Suite 1900
`New York, NY 10017
`(646) 292-8770
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`VERIFICATION
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`Andrew J. Scholz, being duly sworn herein says:
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`1.
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`That he is one of the attorneys for the defendant, KOHLER CO., in this action; that
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`he has read the answer to the Complaint and knows the contents thereof; that the same is true to his
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`own knowledge except as to the matters therein stated to be alleged upon information and belief and
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`as to those matters, he believes them to be true.
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`2.
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`That the reason this verification is made by the deponent and not by defendant,
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`KOHLER CO., is that the answering defendant is outside the County of New York where the
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`deponent maintains his office.
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`3.
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`That the sources of deponent’s knowledge and the grounds for his belief are from the
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`correspondence with said defendant, KOHLER CO., and correspondence and conversations with
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`the representatives of said defendant, and from reports of investigation of the said defendant’s
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`representatives, certain of which the correspondence and reports are now in deponent’s possession.
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`Dated: New York, NY
`April 17, 2024
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`________________________
`Andrew J. Scholz
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`CERTIFICATION
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`ANDREW J. SCHOLZ, an attorney admitted to practice law in the Courts of the State of New
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`York, affirms under the penalties of perjury, that the following statements are true:
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`That I am the attorney for Defendant, KOHLER CO.
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`That I certify to the best of my knowledge, information and belief, formed after an inquiry
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`reasonable under the circumstances, that presentation of Verified Answer of Defendant, KOHLER
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`CO. and the contentions therein are not frivolous as defined in 22 NYCRR 130-1.1-a, et seq.
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`Dated: New York, NY
`April 17, 2024
`
`GOLDBERG SEGALLA LLP
`
`_______________________________
`Andrew J. Scholz, Esq.
`Attorneys for Defendant
`KOHLER CO.
`711 3rd Avenue, Suite 1900
`New York, NY 10017
`(646) 292-8770
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