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`SUPREME COURT OF THE STATE OF NEW YORK
`EIGHTH JUDICIAL DISTRICT
`______________________________________________
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`This Document Applies to:
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`_______________________________________________
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`JAMES J. PURCELL,
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`Plaintiff,
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`-against-
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`AIR & LIQUID SYSTEMS
`CORPORATION, et al.,
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`Defendants.
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`_______________________________________________
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`ANSWER OF DEFENDANT TO
`PLAINTIFF’S VERIFIED
`COMPLAINT
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`Index No. 809897-2021
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`Defendant ViacomCBS Inc., f/k/a CBS Corporation, a Delaware corporation, f/k/a
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`Viacom Inc., successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a
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`Westinghouse Electric Corporation, improperly plead as CBS CORPORATION f/k/a VIACOM
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`INC. successor by merger to CBS CORPORATION f/k/a WESTINGHOUSE ELECTRIC
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`CORPORATION, (“Westinghouse”) by counsel, responds to the allegations contained in the
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`Plaintiff’s ("Plaintiff" herein referred to singularly or plurally, living or deceased,
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`possessively and/or in any such capacity as may apply) Verified Complaint (hereinafter
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`“Complaint”) as follows:
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`1.
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`Westinghouse denies knowledge or information sufficient to form a belief a
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`to the truth of the allegations set forth in paragraph 1 of the Complaint.
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`RESPONSE TO ARTICLE 16 ALLEGATION
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`2.
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`The allegations contained in paragraph 2 of the Complaint call for a legal
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`conclusion and Westinghouse refers all such conclusions to the Court. To the extent that
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`these allegations hold Westinghouse liable of wrongful conduct, Westinghouse denies the
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`same.
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`3.
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`The allegations contained in paragraphs 3 and the second paragraphs 1 and 2
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`of the Complaint pertain to defendants other than Westinghouse and Westinghouse has no
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`duty to respond. To the extent any such duty exists, the allegations are denied for lack of
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`knowledge or information sufficient to form a belief as to the truth contained therein.
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`4.
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`In response to paragraph 4 of the Complaint, Defendant admits that it is a
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`corporation having its principal place of business in New York and as Westinghouse was
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`authorized to conduct business in New York. Westinghouse further admits that at certain
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`times in its past, it manufactured, sold or distributed some products which contained
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`bound or encapsulated asbestos. Westinghouse denies any allegations beyond the scope of
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`this limited admission.
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`5-27. The allegations contained in paragraphs 5 through 27 of the Complaint
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`pertain to defendants other than Westinghouse and Westinghouse has no duty to respond.
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`To the extent any such duty exists, the allegations are denied for lack of knowledge or
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`information sufficient to form a belief as to the truth contained therein.
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`RESPONSE TO ALLEGATIONS OF FACT
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`28.
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`The allegations in paragraph 28 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`29.
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`The allegations in paragraph 29 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`30.
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`The allegations in paragraph 30 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`31.
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`The allegations in paragraph 31 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`32.
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`The allegations in paragraph 32 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations. Westinghouse further denies that it caused or
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`contributed to the Plaintiff’s alleged injuries.
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`33.
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`The allegations in paragraph 33 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations. Westinghouse further denies that it caused or
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`contributed to the Plaintiff’s alleged injuries.
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`RESPONSE TO FIRST CAUSE OF ACTION FOR NEGLIGENT FAILURE TO WARN AGAINST
`THE DEFENDANTS NAMED HEREIN
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`34. Westinghouse repeats and restates each and every response contained in
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`paragraphs 1 through 33 of this answer as if fully set forth herein.
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`35. Westinghouse denies knowledge or information sufficient to form a belief as
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`to the truth of the allegations set forth in paragraph 35 of the Complaint.
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`36.
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`The allegations in paragraph 36 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`37.
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`The allegations in paragraph 37 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`38.
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`The allegations in paragraph 38 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`39.
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`The allegations in paragraph 39 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghous e
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`therefore denies these allegations.
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`40.
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`The allegations in paragraph 40 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`41.
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`The allegations in paragraph 41 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`42.
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`The allegations in paragraph 42 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`43.
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`The allegations in paragraph 43 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the sa me. Westinghouse
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`therefore denies these allegations.
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`44.
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`The allegations in paragraph 44 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore
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`45.
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`The allegations in paragraph 45 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore
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`46.
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`The allegations in paragraph 46 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations. Westinghouse further denies that it caused or
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`contributed to the Plaintiff’s alleged disease.
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`47. Westinghouse denies knowledge or information sufficient to form a belief as
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`to the truth of the allegations set forth in paragraph 47 of the Complaint.
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`48.
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`The allegations contained in paragraph 48 of the Complaint call for a legal
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`conclusion and Westinghouse refers all legal conclusions to the Court. To the extent any
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`further responses is deemed necessary, Westinghouse denies that it caused or contributed
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`to the Plaintiff’s alleged injuries, pain, suffering, expenses, losses and damages.
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`49. Westinghouse denies the allegations set forth in paragraph 49 of the
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`Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse
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`further denies that it caused or contributed to the Plaintiff’s alleged damages.
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`RESPONSE TO SECOND CAUSE OF ACTION FOR STRICT PRODUCTS LIABILITY
`AGAINST THE DEFENDANTS NAMED HEREIN
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`50. Westinghouse repeats and restates each and every response contained in
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`paragraphs 1 through 49 of this answer as if fully set forth herein.
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`51. Westinghouse denies the allegations set forth in paragraph 51of the
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`Complaint insofar as the allegations relate or pertain to Westinghouse.
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`52. Westinghouse denies the allegations set forth in paragraph 52 of the
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`Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse
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`further denies that it caused or contributed to the Plaintiff’s alleged injuries and damages.
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`53.
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`The allegations in paragraph 53 of the Complaint are so broad, vague, and
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`ambiguous that Westinghouse cannot reasonably respond to the same. Westinghouse
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`therefore denies these allegations.
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`54. Westinghouse denies the allegations set forth in paragraph 54 of the
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`Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse
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`further denies that it caused or contributed to the Plaintiff’s alleged injuries and damages.
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`55. Westinghouse denies the allegations set forth in paragraph 55 of the
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`Complaint insofar as the allegations relate or pertain to Westinghouse. Westinghouse
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`further denies that it is liable to the Plaintiff in any respect and repeats and realleges its
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`responses to paragraphs “48” and “49” of the Complaint.
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`RESPONSE TO THIRD CAUSE OF ACTION AGAINST DEFENDANTS FRONTIER
`INSULATION CONTRACTORS, INDUSTRIAL INSULATION SALES, INC., INSULATION
`DISTRIBUTORS, INC. AND NIAGARA INSULATIONS, INC., f/k/a NIAGARA ASBESTOS
`CO., INC.
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`56. Westinghouse repeats and restates each and every response contained in
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`paragraphs 1 through 55 of this answer as if fully set forth herein.
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`57-65. The allegations contained in paragraphs 57 through 65 of the Complaint
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`pertain to defendants other than Westinghouse and Westinghouse has no duty to respond.
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`To the extent any such duty exists, the allegations are denied for lack of knowled ge or
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`information sufficient to form a belief as to the truth contained therein.
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`RESPONSE TO FOURTH CAUSE OF ACTION AGAINST DEFENDANT FRONTIER
`INSULATION CONTRACTORS, INC., f/k/a FRONTIER INSULATION AND ASBESTOS, INC.,
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`66. Westinghouse repeats and restates each and every response contained in
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`paragraphs 1 through 65 of this answer as if fully set forth herein.
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`67-71. The allegations contained in paragraphs 67 through 71 of the Complaint
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`pertain to defendants other than Westinghouse and Westinghouse has no duty to respond.
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`To the extent any such duty exists, the allegations are denied for lack of knowled ge or
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`information sufficient to form a belief as to the truth contained therein.
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`72. Westinghouse denies each and every allegation contained in the Complaint
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`not specifically admitted herein.
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`73. Westinghouse denies that the Plaintiff is entitled to the relief requested in
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`the addendum clauses contained in the First through Fourth Causes of Action contained in
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`the Complaint, and anywhere else so listed.
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`AFFIRMATIVE DEFENSES
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`1.
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`In the event Plaintiff recovers a verdict or judgment against Westinghouse,
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`then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those
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`amounts which have been or will, with reasonable certainty, replace or indemnify Plaintiff,
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`in whole or in part, for any past or future claims, economic loss, from any collateral source
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`including but not limited to insurance, social security, workers’ compensation or employee
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`benefit programs.
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`2.
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`3.
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`Plaintiff’s claims are barred by the applicable statute of limitations.
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`Westinghouse gave, made or otherwise extended no warranties, whether
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`express or implied, upon which Plaintiff had a right to rely.
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`4.
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`5.
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`6.
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`Westinghouse breached no warranties, whether express or implied.
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`The doctrine of strict liability in tort is inapplicable to this litigation.
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`Plaintiff’s claims against Westinghouse are barred by the doctrine of
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`assumption of the risk.
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`7.
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`8.
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`Plaintiff fails to state a claim upon which relief may be granted.
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`Plaintiff’s delay in commencing suit has resulted in prejudice to
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`Westinghouse and the equitable doctrine of laches bars this suit.
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`9.
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`The Plaintiff failed to properly affect personal jurisdiction over
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`Westinghouse.
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`10.
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`Claims brought under the New York Statute of Limitations enacted July 31,
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`1986 are time-barred because the statute is unconstitutional.
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`11.
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`The Complaint must be dismissed by reason of improper venue.
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`12.
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`This Court lacks jurisdiction over the subject matter of this action.
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`13.
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`All claims which rely on New York Law, L.1986, C.682, Section 4 are time-
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`barred in their entirety.
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`14.
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`This Court lacks jurisdiction over Westinghouse based on insufficient and
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`untimely service of process.
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`15. Westinghouse pleads that it is immune from civil liability of any form or
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`nature in this matter under New York’s workers' compensation law if Plaintiff was an
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`employee of defendant during the period of alleged exposure. The said workers'
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`compensation law provides Worker's Compensation benefits for the disability of an
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`employee if such resulted from injury or occupational disease incurred or sustained in the
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`course of employment as an exclusive remedy.
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`16.
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`The action is barred by virtue of the four year Statute of Limitations
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`prescribed by Section 2-725 of the Uniform Commercial Code; by virtue of failure of
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`Plaintiff to give requisite notice to this answering defendant under Article 2 of the Uniform
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`Commercial Code, in so far as a cause of action is alleged for breach of warranty or
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`warranties, express or implied, as well as by virtue of the absence of privity or of any
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`contractual relationship between the Plaintiff and Westinghouse.
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`17.
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`Plaintiff’s claims are time barred in that Section 214-C of the New York CPLR
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`is unconstitutional.
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`18.
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`At all times during the conduct of its operations, all agents, servants and
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`employees of Westinghouse used proper methods of handling the products complained of
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`in conformity with the available knowledge, state of the art, and research of the scientific
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`and industrial communities.
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`19.
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`To the extent that the Plaintiff was injured as a result of exposure to asbestos
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`and/or asbestos-containing materials at a situs of construction, demolition, renovation or
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`excavation where Westinghouse was a contractor or agent, which is denied, the presence
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`or use of asbestos or asbestos-containing materials was a result of strict conformity with
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`specifications or requirements supplied by such Plaintiff or Plaintiff’s employers, the
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`United States Government or other third parties.
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`20.
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`To the extent that Plaintiff was exposed to any product containing asbestos
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`as a result of conduct by Westinghouse, which is denied, said exposure was de minimis and
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`not a substantial contributing factor to any asbestos-related disease which Plaintiff may
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`have developed, thus requiring dismissal of the Complaint as against Westinghouse.
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`21.
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`Upon information and belief, Plaintiff failed to mitigate or otherwise act to
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`lessen or reduce the injuries and disabilities alleged in the Complaint.
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`22.
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`Plaintiff does not have standing to maintain the action.
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`23.
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`If Westinghouse should be found liable to the Plaintiff, such liability arose out
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`of the negligence of co-defendants entitling Westinghouse to indemnification and/or
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`contribution, in whole or in part, from such parties for the amount of any verdict or an
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`amount of any judgment which may be recovered against Westinghouse.
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`24. Westinghouse shows that if Plaintiff has released, settled, entered into an
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`accord and satisfaction, or otherwise compromised Plaintiff's claims herein, then,
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`accordingly, said claims are barred by payment, accord and satisfaction, arbitration and
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`award, release, and res judicata; alternatively, Westinghouse shows that if Plaintiff has
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`accepted compensation in partial settlement of Plaintiff's claims, then Westinghouse is
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`entitled to a set-off in said amount.
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`25.
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`Because of the generality of the allegations in the Complaint, Westinghouse
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`reserves the right to amend its answer and affirmative defenses if investigation, discovery
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`and further information should warrant such amendment, and, further, to assert any
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`applicable matters of law during the pendency of this action.
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`26.
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`If it is determined that the plaintiffs were exposed to any Westinghouse
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`product, which product or components of those products were acquired from or sold by or
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`used on behalf of the United States of America or any State or agency thereof, then
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`Westinghouse is entitled to any sovereign or government immunity or defense available to
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`the United States and/or relevant state and/or relevant agency thereof including, but not
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`limited to, the federal government contractor defense.
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`27.
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`Plaintiff’s purported exposure to asbestos occurred on a federal enclave. All
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`claims arising from alleged incidents on a federal enclave must be determined in
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`accordance with federal laws.
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`28.
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`The design, construction, maintenance, and all safety aspects of the
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`equipment at issue implicates government contracts that give rise to federal laws, including
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`but not limited to the War Powers Acts.
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`29. Westinghouse acted under the authority of an officer or agency of the United
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`States, within the meaning of 28 U.S.C. § 1442(a)(1). Westinghouse acted unde r the
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`direction, control and demand of the U.S. Government, the Secretary of the Navy or his
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`delegee based on extensive and strict government design specifications.
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`30.
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`The government mandated precise specifications regarding the products it
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`needed, and Westinghouse conformed to those specifications. Westinghouse cannot be
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`liable to a third party in tort if the government approved reasonably precise specifications
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`and Westinghouse conformed to those specifications.
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`31.
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`Pursuant to the Defense Production Act, Westinghouse cannot be held liable
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`for damages or penalties for any act or failure to act resulting directly or indirectly from
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`compliance with a rule, regulation, or order issued pursuant to the Defense Production Act.
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`32.
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`All defenses that have been or will be asserted by other defendants in this
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`action are adopted and incorporated by reference as if fully set forth herein. In addition,
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`Westinghouse will rely upon any and all other further defenses which become available or
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`appear during discovery in this action and hereby specifically reserves its right to amend
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`its answer for the purpose of asserting any such additional affirmative defenses.
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`33.
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`The Court lacks both general and specific personal jurisdiction over the
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`answering defendant. The answering defendant further objects to and denies an exercise of
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`general jurisdiction over it, notwithstanding any of Plaintiff’s allegations in the complaint
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`purporting to establish a basis for general jurisdiction (see, e.g., Daimler AG v. Bauman, 571
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`U.S. 117 (2014); BNSF Ry. Co. v. Tyrrell, 137 S.Ct. 1549 (2017); Bristol-Myers Squibb Co. v.
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`Sup. Ct. of Cal., S.F. Cty, 137 S.Ct. 1773 (2017); cf., Gibson v. Air & Liquid Sys. Corp., 173
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`AD3d 519 [1st Dept., 2019]).
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`34.
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`The answering defendant asserts the claims may be subject to and governed
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`by the laws of a foreign jurisdiction where any of the parties are domiciled or where
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`plaintiff was allegedly exposed to asbestos or diagnosed. See, e.g., Neumeier v. Kuehner, 31
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`NY2d 121 [1972]; see also, In re New York City Asbestos Litig. (Tedrick v. Colgate), 32 Misc
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`3d 161 [Sup Ct 2011, NY County].
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`35.
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`The Complaint contains no information regarding dates of exposure, injury
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`or diagnosis, or any other information necessary to determine whether plaintiff’s claims
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`were timely filed. The answering defendant asserts the claims may be barred under the
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`terms of any relevant statutes of limitations or repose from the jurisdiction or jurisdictions
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`whose limitations or repose provisions govern.
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`AS AND FOR A CROSS-CLAIM AGAINST OTHER DEFENDANTS NAMED IN THIS CASE,
`DEFENDANT WESTINGHOUSE STATES:
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`If plaintiffs sustained damages in the manner alleged in the complaint, all of
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`36.
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`which is denied by this answering defendant, such damages were caused by reason of
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`negligence, breach of contract obligation or warranty, nuisance or trespass or are
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`otherwise the proper responsibility of other defendants named in this case or plaintiffs’
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`culpable conduct.
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`37.
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`By reason of the foregoing, the answering defendant is entitled to
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`indemnification or contribution from, and to have judgment over against, its co -defendants, or
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`some of them, for all or part of any verdict or judgment that plaintiffs may recover against the
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`answering defendant.
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`ANSWER TO ALL CROSS-CLAIMS
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`Westinghouse hereby answers the cross-claims of each of the other defendants and
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`NYSCEF DOC. NO. 7
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`INDEX NO. 809897/2021
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`RECEIVED NYSCEF: 08/24/2021
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`any third-party defendant named in this action, however asserted or alleged, and says:
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`38.
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`All cross-claims for contribution alleged against Westinghouse by any party
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`defendant or third-party defendant are denied.
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`39.
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`All cross-claims for indemnification alleged against Westinghouse by any
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`party defendant or third-party defendant are denied.
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`40.
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`All cross-claims for contractual indemnification alleged against
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`Westinghouse by any party defendant or third-party defendant are denied.
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`WHEREFORE, Defendant Westinghouse requests the following relief:
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`b.
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`c.
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`Judgment dismissing the Complaint;
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`Costs and disbursements;
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`Attorneys’ fees;
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`Indemnification and/or contribution, either in whole, or in part,
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`against co-defendants with judgment over and against such parties for
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`all or part of any verdict a judgment which may be recovered herein
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`by any party to this action against defendant Westinghouse; and
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`e.
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`Any other relief to which it may be justly entitled.
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`DEMAND FOR JURY
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`Westinghouse hereby demands a trial by jury in this action.
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`Dated: Newark, New Jersey
`August 24, 2021
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`_____________________________
`Michael A. Tanenbaum, Esq.
`Tanenbaum Keale LLP
`Attorneys for Defendant
`ViacomCBS Inc., f/k/a CBS Corporation, a
`Delaware corporation,
`f/k/a Viacom Inc., successor by merger to
`CBS Corporation, a Pennsylvania corporation,
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`FILED: ERIE COUNTY CLERK 08/24/2021 01:06 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. 809897/2021
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`RECEIVED NYSCEF: 08/24/2021
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`TO:
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`f/k/a Westinghouse Electric Corporation
`Three Gateway Center, Suite 1301
`100 Mulberry Street
`Newark, NJ 07102
`(973) 242-0002
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`RICHMOND VONA, LLC
`Attorneys for Plaintiff
`1659 Amherst Street, Suite 100
`Buffalo, New York 14214
`(716) 500-5678
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`14 of 16
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`FILED: ERIE COUNTY CLERK 08/24/2021 01:06 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. 809897/2021
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`RECEIVED NYSCEF: 08/24/2021
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`SUPREME COURT OF THE STATE OF NEW YORK
`EIGHTH JUDICIAL DISTRICT
`______________________________________________
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`This Document Applies to:
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`_______________________________________________
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`JAMES J. PURCELL,
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`Plaintiff,
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`-against-
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`AIR & LIQUID SYSTEMS
`CORPORATION, et al.,
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`Defendants.
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`_______________________________________________
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`ATTORNEY’S
`VERIFICATION
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`Index No. 809897-2021
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`The undersigned affirms the truth of the following statement to be true under
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`penalties of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules.
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`That he is duly admitted to practice law in the State of New York and is a member of
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`the law firm of Tanenbaum Keale LLP, attorneys for defendant, ViacomCBS Inc. f/k/a CBS
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`Corporation, a Delaware corporation, f/k/a Viacom Inc., successor by merger to CBS
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`Corporation, a Pennsylvania corporation, f/k/a Westinghouse Electric Corpora tion.
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`That he has read the foregoing document and knows the contents thereof, and that
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`the same is true to the knowledge of you except as to the matters therein alleged upon
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`information and belief and that as to those matters he believes them to be true.
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`That the reason why this affirmation is being made by affirmant and not the
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`defendant is that the defendant does not maintain an office in the county where affirmant
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`maintains his offices.
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`FILED: ERIE COUNTY CLERK 08/24/2021 01:06 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. 809897/2021
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`RECEIVED NYSCEF: 08/24/2021
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`That the source of deponent’s information and the grounds of his b elief as to all the
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`matters therein alleged upon information and belief are repo rts from and communications
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`had with said defendants.
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`Dated: Newark, New Jersey
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`August 24, 2021
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`_____________________________
`Michael A. Tanenbaum, Esq.
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