FILED: ERIE COUNTY CLERK 10/08/2021 11:43 AM
`NYSCEF DOC. NO. 25
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`INDEX NO. 812206/2021
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
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`This Document Relates To:
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`KEITH F. SCHNEIDER,
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`Plaintiff,
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`vs.
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`AIR & LIQUID SYSTEMS CORPORATION, et al.,
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`Defendants.
`--------------------------------------------------------------x
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`Index No. 812206/2021
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`VERIFIED ANSWER
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`ANSWER TO PLAINTIFF’S ASBESTOS
`COMPLAINT AND AFFIRMATIVE DEFENSES OF
`DEFENDANT ITT LLC
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`Defendant ITT LLC (hereinafter referred to as “ITT”), as its Answer to Plaintiff’s Asbestos
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`Complaint, (hereinafter referred to as “Complaint”) and Affirmative Defenses, states as follows:
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`1.
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`ITT is without knowledge or information to form a belief as to the truth of the
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`allegations set forth in Paragraph 1.
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`2.
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`To the extent that Paragraph 2 contains allegations against ITT, ITT denies the
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`allegations set forth in Paragraph 2. To the extent that Paragraph 2 contains allegations against
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`entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
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`the truth of the allegations set forth against those entities. Further, the application of NY Civ. Prac.
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`L. Art. 16 §1602 and the workers’ compensation law are questions of law to be determined by this
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`Court.
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`3–18. Paragraphs 3 through 18 make no allegation against ITT and therefore ITT makes
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`no answer thereto.
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`19.
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`To the extent that Paragraph 19 contains allegations against ITT, ITT denies the
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`allegations set forth in Paragraph 19. Answering further, the allegation that ITT has conducted
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`and/or transacted business in New York is a question of law to be adjudicated by this Court. To
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`the extent that Paragraph 19 contains allegations against entities other than ITT, ITT is without
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`knowledge or information to form a belief as to the truth of the allegations set forth against those
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`entities.
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`20–27. Paragraphs 20 through 27 make no allegation against ITT and therefore ITT makes
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`no answer thereto.
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`28–33. To the extent that the allegations in Paragraphs 28 through 33 are directed against
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`ITT, ITT denies the allegations. To the extent that Paragraphs 28 through 33 contain allegations
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`against entities other than ITT, ITT is without knowledge or information sufficient to form a belief
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`as to the truth of the allegations set forth against those entities.
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`AS AND FOR A FIRST CAUSE OF ACTION
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`34.
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`ITT repeats each and every answer contained in Paragraphs 1 through 33 of this
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`Answer herein with the same force and effect is as if fully set forth herein.
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`35.
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`The allegations in Paragraph 35 are overly broad, vague, and lack foundation.
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`Therefore, to the extent that Paragraph 35 contains allegations against ITT, ITT denies the
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`allegations set forth in Paragraph 35. To the extent that Paragraph 35 contains allegations against
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`entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
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`the truth of the allegations set forth against those entities.
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`36–46. To the extent that the allegations in Paragraphs 36 through 46 are directed against
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`ITT, ITT denies the allegations. To the extent Paragraphs 36 through 46 contain allegations against
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`entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
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`the truth of the allegations set forth against those entities.
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`47.
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`ITT denies the allegations in Paragraph 47.
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`48–49. To the extent that Paragraphs 48 and 49 contain allegations against ITT, ITT denies
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`the allegations set forth in Paragraphs 48 and 49. To the extent that Paragraphs 48 and 49 contain
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`allegations against entities other than ITT, ITT is without knowledge or information sufficient to
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`form a belief as to the truth of the allegations set forth against those entities.
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`AS AND FOR A SECOND CAUSE OF ACTION
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`50.
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`ITT repeats each and every answer contained in Paragraphs 1 through 49 of this
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`Answer herein with the same force and effect is as if fully set forth herein.
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`51–52. To the extent that Paragraphs 51 and 52 contain allegations against ITT, ITT denies
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`the allegations set forth in Paragraphs 51 and 52. To the extent that Paragraphs 51 and 52 contain
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`allegations against entities other than ITT, ITT is without knowledge or information sufficient to
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`form a belief as to the truth of the allegations set forth against those entities.
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`53–54. The allegations in Paragraphs 53 and 54 are overly broad, vague, and lack
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`foundation. Therefore, to the extent that Paragraphs 53 and 54 contain allegations against ITT,
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`ITT denies the allegations set forth in Paragraphs 53 and 54. To the extent that Paragraphs 53 and
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`54 contain allegations against entities other than ITT, ITT is without knowledge or information
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`sufficient to form a belief as to the truth of the allegations set forth against those entities.
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`55.
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`To the extent that Paragraph 55 contains allegations against ITT, ITT denies the
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`allegations set forth in Paragraph 55. To the extent that Paragraph 55 contains allegations against
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`entities other than ITT, ITT is without knowledge or information sufficient to form a belief as to
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`the truth of the allegations set forth against those entities.
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`AS AND FOR A THIRD CAUSE OF ACTION
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`56.
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`ITT repeats each and every answer contained in Paragraphs 1 through 55 of this
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`Answer herein with the same force and effect is as if fully set forth herein.
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`57–65. To the extent that Paragraphs 57 through 65 contain allegations against ITT, ITT
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`denies the allegations set forth in Paragraphs 57 through 65. To the extent that Paragraphs 57
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`through 65 contain allegations against entities other than ITT, ITT is without knowledge or
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`information sufficient to form a belief as to the truth of the allegations set forth against those
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`entities.
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`AS AND FOR A FOURTH CAUSE OF ACTION
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`66.
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`ITT repeats each and every answer contained in Paragraphs 1 through 65 of this
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`Answer herein with the same force and effect is as if fully set forth herein.
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`67–71. To the extent that Paragraphs 67 through 71 contain allegations against ITT, ITT
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`denies the allegations set forth in Paragraphs 67 through 71. To the extent that Paragraphs 67
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`through 71 contain allegations against entities other than ITT, ITT is without knowledge or
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`information sufficient to form a belief as to the truth of the allegations set forth against those
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`entities.
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`WHEREFORE, Defendant ITT LLC denies that Plaintiff is entitled to compensatory and
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`punitive damages and further requests that Plaintiff’s claims be dismissed with prejudice and any
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`other relief this Honorable Court deems just.
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`AFFIRMATIVE DEFENSES
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`First Defense
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`Plaintiff’s Complaint fails to state a claim upon which relief may be granted.
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`Second Defense
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`Plaintiff’s Complaint is barred by the applicable statute of repose or statute of limitations.
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`Third Defense
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`Any claim or cause of action Plaintiff may have is barred, in whole or in part, by the
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`doctrines of laches, waiver, collateral estoppel, and/or res judicata.
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`Fourth Defense
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`Plaintiff has failed to plead the claims of fraud and conspiracy with proper specificity and,
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`as such, all claims premised on fraud and/or conspiracy must be dismissed.
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`Fifth Defense
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`The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workers’
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`Compensation statutes and shall have constituted an industrial disability and Plaintiff’s exclusive
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`remedy, if any, shall lie within the terms and ambit of said statute.
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`Sixth Defense
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`Plaintiff’s claims and causes of action against Defendant are barred, in whole or in part,
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`because Defendant owed no legal duty to Plaintiff or, if it owed such a legal duty, it did not breach
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`such duty.
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`Seventh Defense
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`The injuries allegedly sustained by Plaintiff, if any, were proximately caused by Plaintiff’s
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`free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and
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`thus assuming the risks ordinary incident to such acts.
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`Eighth Defense
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`The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of the
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`risks, hazards, and dangers incident to the occupation of Plaintiff, all of which were open, obvious
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`and well known to Plaintiff, and the action is barred by Plaintiff’s assumption of the risks thereof.
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`Ninth Defense
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`This action is barred, in whole or in part, by the misuse, abuse, or substantial modification
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`of the product.
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`Tenth Defense
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`The negligent acts or omissions of Plaintiff were the sole proximate cause or proximate
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`contributing cause of the injuries and damages of which Plaintiff complains.
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`Eleventh Defense
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`Plaintiff Keith F. Schneider contributed to his illness, either in whole or in part, by the use
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`of other substances, products, medications and drugs. To the extent that Plaintiff Keith F.
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`Schneider used any tobacco products, any damages awarded should be reduced in whole or in part
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`by the amount of his damages caused by smoking.
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`Twelfth Defense
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`That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or contributed
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`to by the fault, neglect, and want of care on the part of Plaintiff or of others for whose acts or
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`omissions or breach of legal duty Defendant is not liable.
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`Thirteenth Defense
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`Plaintiff’s alleged damages were negligently caused in whole or in part by persons, firms,
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`corporations, or entities other than those parties before this Court and such negligence either bars
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`or comparatively reduces any possible recovery by Plaintiff.
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`Fourteenth Defense
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`Insofar as the Complaint alleges a cause of action accruing on or after September 1, 1975
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`to recover damages for personal injuries, the amount of damages recoverable thereon must be
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`diminished by reason of the culpable conduct attributable to Plaintiff, including contributory
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`negligence and assumption of risk, in the proportion which the culpable conduct attributable to
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`Plaintiff bear to the culpable conduct which caused the damages.
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`Fifteenth Defense
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`If Plaintiff suffered damages as a result of the allegations set forth in the Complaint, then
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`those damages were the result of intervening or superseding acts or omissions of persons other
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`than the Defendant.
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`Sixteenth Defense
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`If Plaintiff suffered injuries as a proximate result of a condition of Defendant’s products,
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`any of Defendant’s products would have been supplied to an employer of Plaintiff. Such employer
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`was a knowledgeable and sophisticated user of said products, and thus Defendant had no further
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`legal duty to warn or instruct Plaintiff.
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`Seventeenth Defense
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`If any of the allegations of Plaintiff with respect to the defective condition of asbestos or
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`asbestos products are proven, then Plaintiff is barred from any recovery due to the fact that at all
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`relevant times there was no known substitute for asbestos or asbestos products.
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`Eighteenth Defense
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`The state of the medical and scientific knowledge at all relevant times was such that
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`Defendant neither knew nor could have known that its asbestos-containing products presented a
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`foreseeable risk of harm to any person in the normal and expected use of those products.
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`Nineteenth Defense
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`To the extent that Defendant conformed to the scientific knowledge and research data
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`available throughout the industry and scientific community, Defendant shall have fulfilled its
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`obligations, if any, herein, and Plaintiff’s claims shall be barred, in whole or in part.
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`Twentieth Defense
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`If Plaintiff sustained injuries as a result of exposure to any product manufactured by
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`Defendant, the degree of such damage attributable to Defendant’s product is negligible, and hence,
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`de minimis.
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`Twenty-First Defense
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`Defendant cannot be held jointly and severally liable for acts or omissions of other
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`defendants because the acts and omissions of those other defendants were separate and distinct
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`and the alleged harm caused by each defendant is divisible.
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`Twenty-Second Defense
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`Defendant is not liable for any damages alleged to have resulted from exposure to any of
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`its products which were manufactured pursuant to Government specifications.
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`Twenty-Third Defense
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`Insofar as Plaintiff relies upon allegations of negligence, breaches of warranties, fraudulent
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`representations, and violations of obligations of strict product liability as against Defendant prior
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`to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of
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`action by reason of the failure to allege the freedom of Plaintiff from contributory negligence or
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`fault; and that if Plaintiff sustained the injuries, losses, and other damages complained of in the
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`Complaint, they were caused and brought about, in whole or in part, by the negligence,
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`carelessness, assumption of risk, fault or other culpable conduct of Plaintiff.
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`Twenty-Fourth Defense
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`To the extent that Plaintiff alleges rights assertedly derived from oral warranties or
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`undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds.
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`Twenty-Fifth Defense
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`To the extent Plaintiff alleges a cause of action for express and/or implied warranties and
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`the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to
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`allege privity of contract and/or privity of warranties between Plaintiff and Defendant.
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`Twenty-Sixth Defense
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`To the extent that any breach of warranty is alleged, Plaintiff have failed to give proper and
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`prompt notice of any such breach to Defendant.
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`Twenty-Seventh Defense
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`Plaintiff did not directly or indirectly purchase any asbestos-containing products or
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`materials from Defendant, and Plaintiff neither received nor relied upon any representation or
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`warranty allegedly made by Defendant.
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`Twenty-Eighth Defense
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`The action cannot proceed in the absence of all parties who should be named in accordance
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`with New York CPLR § 1001.
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`Twenty-Ninth Defense
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`The recoverable damages, if any, should be diminished under the collateral source rule set
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`forth in New York CPLR § 4545.
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`Thirtieth Defense
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`To the extent that Plaintiff may recover damages from Defendant, Defendant is entitled to
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`indemnification and/or contribution, in whole or in part, from each of the other defendants in this
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`action.
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`Thirty-First Defense
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`If Defendant is ultimately found to be liable to Plaintiff, then, pursuant to New York CPLR
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`Article 16, it shall only be liable for its equitable share of Plaintiff’s recovery since any liability
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`which will be found against it will be insufficient to impose joint liability.
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`Thirty-Second Defense
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`Pursuant to New York CPLR Article 16, the liability, if any, of Defendant for non-
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`economic loss shall not exceed its equitable share of liability.
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`Thirty-Third Defense
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`To the extent Plaintiff seeks to hold Defendant liable retroactively for conduct that was not
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`actionable at the time it occurred, Plaintiff’s claims violate Defendant’s right to be free from ex
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`post facto laws and Defendant’s procedural and substantive due process rights under the
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`Constitution of the United States.
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`Thirty-Fourth Defense
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`Any claim for exemplary and/or punitive damages is barred because such damages are not
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`recoverable or warranted in this action.
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`Thirty-Fifth Defense
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`The imposition of punitive damages on the facts alleged in the Complaint is barred by the
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`United States Constitution and the Constitution of the State of New York.
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`Thirty-Sixth Defense
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`Plaintiff’s claim for punitive damages cannot be sustained because it would violate
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`Defendant’s rights under the Constitutions of the United States and the State of New York,
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`including, but not limited to:
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`(a)
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`Defendant’s procedural and substantive due process rights and equal protection
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`rights under the Fifth and Fourteenth Amendments of the United States
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`Constitution and under cognate provisions of the New York Constitution;
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`(b)
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`Defendant’s rights under the double jeopardy clauses of the Fifth Amendment of
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`the United States Constitution and Article I, Section 6 of the New York State
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`Constitution;
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`(c)
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`Defendant’s rights to protection from “excessive fines” as provided in the
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`Constitutions of the United States and the State of New York.
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`Thirty-Seventh Defense
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`The law of New York and the Due Process Clause of the Fourteenth Amendment and the
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`Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant
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`simply for lawfully selling a legal product.
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`Thirty-Eighth Defense
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`Punitive damages are inappropriate to serve deterrence and punishment objectives because
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`those will be fully served by past and future liability for the same conduct at issue in this case.
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`Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish
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`Defendant, except to the extent the alleged conduct has had an impact in this State.
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`Thirty-Ninth Defense
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`All defenses which have been or will be asserted by other defendants and/or third-party
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`defendants in this action are adopted and incorporated herein by reference as if fully set forth at
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`length as defenses to Plaintiff’s Complaint. In addition, Defendant will rely upon any and all other
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`further defenses which become available or appear during discovery proceedings in this action and
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`hereby specifically reserves the right to amend its Answer for purposes of asserting further
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`additional defenses.
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`Dated: October 8, 2021
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`Respectfully submitted,
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`ITT LLC
`
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`By:
` Beth L. Hughes
` One of the attorneys for ITT LLC
`
`Brady S. Edwards
`Beth L. Hughes
`Morgan, Lewis & Bockius LLP
`101 Park Avenue
`New York, NY 10178-0060
`Phone: (212) 309-6000
`Fax: (212) 309-6001
`beth.hughes@morganlewis.com
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`To:
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`Lipsitz, Ponterio & Comerford, LLC
`424 Main Street, Suite 1500
`Buffalo, NY 14202
`Attorneys for Plaintiff
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`ATTORNEY VERIFICATION
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`STATE OF NEW YORK
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`)
`) ss:
`COUNTY OF NEW YORK )
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`BETH L. HUGHES, an attorney duly admitted to practice law before the Courts of the
`State of New York, deposes and says that I am attorney for ITT LLC, with an office located at 101
`Park Avenue, New York, New York, that I have read the foregoing Answer and Affirmative
`Defenses to Plaintiff’s Complaint on Behalf of Defendant ITT LLC and know the contents thereof,
`that the same is true upon information and belief and I believe it to be true, that the grounds of my
`belief are public records, records and documents currently in my possession pertaining to this
`matter, and conversations with client’s agents, and that the reason why this verification is made by
`me and not by said defendant is that said defendant is a foreign corporation which has no offices
`located in New York County where I maintain an office.
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`The undersigned affirms that the foregoing statements are true, under the penalties of
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`perjury.
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`Dated: October 8, 2021
`New York, New York
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`Beth L. Hughes
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