FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
`MONROE COUNTY CLERK’S OFFICE
`
`RECEIVED NYSCEF: 07/16/2021
`THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
`
`INDEX NO. E2021004041
`
`Return To:
`DAVID P. SCHAFFER
`150 Broadway, Suite 600
`New York, NY 10038
`
` WENDY SEDAM, as Proposed Executrix for the Estate of
`SAMUEL SEDAM, and WENDY SEDAM, Individually
`
`Receipt # 2780280
`
`Book Page CIVIL
`
`No. Pages: 20
`
`Instrument: ANSWER
`
`Control #:
`Index #:
`
`202107160840
`E2021004041
`
`Date: 07/16/2021
`
`Time: 2:38:52 PM
`
` A.O. SMITH WATER PRODUCTS CO
` ABB, INC. Individually and as successor in interest to ITE
`CIRCUIT BREAKERS, INC
` AERCO INTERNATIONAL, INC
` AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG
`COMPANY, n/k/a BAYER CROPSCIENCE INC
` ATWOOD & MORRILL COMPANY
`
`Total Fees Paid:
`
`$0.00
`
`Employee:
`
`State of New York
`
`MONROE COUNTY CLERK’S OFFICE
`WARNING – THIS SHEET CONSTITUTES THE CLERKS
`ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
`SECTION 319 OF THE REAL PROPERTY LAW OF THE
`STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
`
`JAMIE ROMEO
`
`MONROE COUNTY CLERK
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`1 of 20
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`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
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`Index # : E2021004041
`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF MONROE
`
`
`
`WENDY SEDAM, as Proposed Executrix for the Estate
`of SAMUEL SEDAM, and WENDY SEDAM,
`Individually,
`
`
`Plaintiff(s),
` -v.-
`
`A.O. SMITH WATER PRODUCTS CO., et al.,
`including ABB, INC, Individually and as successor in
`interest to ITE CIRCUIT BREAKERS, INC.,
`
`Defendants. Defendants,
`
`x
`
`
`
`
`x
` Index No.: E2021004041
`
`VERIFIED ANSWER TO
`PLAINTIFF’S VERIFIED
`COMPLAINT, AFFIRMATIVE
`DEFENSES, CROSS-CLAIMS,
`AND ANSWER TO
`CROSS-CLAIMS OF
`DEFENDANT ABB, INC.
`
`Defendant ABB, Inc., sued as “ABB, INC. individually and as successor in interest to
`
`ITE IMPERIAL CO. f/k/a/ ITE CIRCUIT BREAKER CO.” (hereinafter “ABB” or “Answering
`
`Defendant”), by its attorneys, Malaby & Bradley, LLC, hereby acknowledges receipt and
`
`answers the Plaintiffs’ Verified Complaint, filed on May 6, 2021 (hereinafter the “Complaint”),
`
`and alleges, upon information and belief, as follows:
`
`1.
`
`Answering Defendant denies knowledge or information sufficient to form
`
`a belief as to the allegations contained in paragraphs 1 of the Complaint.
`
`2.
`
`Paragraph 2 of the Complaint is stylistic in nature and do not require
`
`admission or denial by Answering Defendant.
`
`3.
`
`Answering Defendant denies the allegations contained in paragraph 3 of
`
`the Complaint except admits that Answering Defendant is a foreign corporation that has done
`
`and/or transacted business in the State of New York.
`
`{00178241.}
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`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
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`Index #: E2021004041
`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`4.
`
`Answering Defendant denies knowledge or information sufficient to form
`
`a belief as to the allegations contained in paragraphs 4 and paragraphs 6 through 34 (inclusive) of
`
`the Complaint.
`
`5.
`
`Answering Defendant denies the allegations contained in paragraph 5 of
`
`the Complaint insofar as they pertain to Answering Defendant and otherwise denies knowledge
`
`or information sufficient to form a belief as to the truth of the allegation in said paragraphs,
`
`except admits that Answering Defendant is a foreign corporation that has done business in the
`
`State of New York, with its principal place of business outside of the State of New York.
`
`
`
`
`AS AND FOR A FIRST CAUSE OF ACTION AGAINST THE DEFENDANTS
`
`6.
`
`With regard to paragraph 35 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 34
`
`(inclusive) of the Complaint as is more fully set forth herein.
`
`7.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 36 through 54 (inclusive) of the Complaint and refers all questions of law to the
`
`Court.
`
`AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE DEFENDANTS
`
`8.
`
`With regard to paragraph 55 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 54
`
`(inclusive) of the Complaint as is more fully set forth herein.
`
`9.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 56 through 60 (inclusive) of the Complaint.
`
`{00178241.}
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`NYSCEF DOC. NO. 68
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`Index #: E2021004041
`INDEX NO. E2021004041
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`AS AND FOR A THIRD CAUSE OF ACTION AGAINST THE DEFENDANTS
`
`10. With regard to paragraph 61 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 60
`
`(inclusive) of the Complaint as is more fully set forth herein.
`
`11.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 62 through 70 (inclusive) of the Complaint.
`
`AS AND FOR A FOURTH CAUSE OF ACTION AGAINST THE DEFENDANTS
`
`12. With regard to paragraph 71 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 70
`
`(inclusive) of the Complaint as is more fully set forth herein.
`
`13.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 72 and 81 (inclusive) of the Complaint, including all sub-parts therein.
`
`AS AND FOR A FIFTH CAUSE OF ACTION AGAINST THE DEFENDANTS
`
`14. With regard to paragraph 82 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 81
`
`(inclusive) of the Complaint as is more fully set forth herein.
`
`15.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 83 through 100 (inclusive) of the Complaint, including all sub-parts therein.
`
`AS AND FOR A SEVENTH (NO SIXTH) CAUSE OF ACTION AGAINST THE
`
`DEFENDANTS
`
`16. With regard to paragraph 101 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 100
`
`(inclusive) of the Complaint as is more fully set forth herein.
`{00178241.}
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`202107160840
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`NYSCEF DOC. NO. 68
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`Index #: E2021004041
`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`17.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 102 and 103 of the Complaint, including all sub-parts therein.
`
`AS AND FOR EIGHTH CAUSE OF ACTION AGAINST THE DEFENDANTS
`
`18. With regard to paragraph 104 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 103
`
`(inclusive) of the Complaint as is more fully set forth herein.
`
`19.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 105 through 119 (inclusive) of the Complaint, including all sub-parts therein.
`
`AS AND FOR NINTH CAUSE OF ACTION AGAINST THE DEFENDANTS
`
`20. With regard to paragraph 120 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 119
`
`(inclusive) of the Complaint as is more fully set forth herein.
`
`21.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 121 through 127 (inclusive) of the Complaint, including all sub-parts therein.
`
`AS AND FOR TENTH CAUSE OF ACTION AGAINST THE DEFENDANTS
`
`22. With regard to paragraph 128 of the Complaint, Answering Defendant
`
`repeats, reiterates, and realleges each and every response as to paragraphs 1 through 127
`
`(inclusive) of the Complaint as is more fully set forth herein.
`
`23.
`
`Answering Defendant denies the truth of the allegations contained in
`
`paragraphs 129 through 133 (inclusive) of the Complaint, including all sub-parts therein.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`24.
`
`The Complaint and Personal Injury Complaint fail to state a cause of
`
`action upon which relief can be granted against Answering Defendant.
`{00178241.}
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`202107160840
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`NYSCEF DOC. NO. 68
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`Index #: E2021004041
`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`
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`limitations.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`16.
`
`Plaintiffs' claims are time-barred by reason of the applicable statute(s) of
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`17.
`
`In the event that Plaintiffs rely on New York Law, L. 1986 C. 682
`
`Sections 4 and 12 as grounds for maintaining this action, these sections are unconstitutional and
`
`this action is time-barred.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`18.
`
`Plaintiffs' claims are barred by the operation of the doctrine of laches.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`19.
`
`Plaintiffs' claims are barred by the operation of the doctrine of estoppel.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`20.
`
`Plaintiffs waived all claims against Answering Defendant.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`21.
`
`This Court lacks jurisdiction over the subject matter of this action.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`22.
`
`This Court lacks personal jurisdiction over Answering Defendant.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`23.
`
`The venue of this action is improper.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`24.
`
`Plaintiffs lack the capacity, standing or authority to bring this action, in
`
`whole or in part.
`
`{00178241.}
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`6 of 20
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`202107160840
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`NYSCEF DOC. NO. 68
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`Index #: E2021004041
`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`
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`estoppel.
`
`25.
`
`Plaintiffs' claims are barred by the doctrines of res judicata and collateral
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`26.
`
`Plaintiffs’ speculative, uncertain and contingent damages have not accrued
`
`and are not recoverable.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`27.
`
`Joinder of individual Plaintiffs in this action or at trial is improper because
`
`they do not assert any right to relief jointly, severally, or, in the alternative, do not arise out of
`
`the same transaction, occurrence, or series of transactions or occurrences.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`28.
`
`This cause of action must be dismissed in the event Plaintiffs has another
`
`action pending against Answering Defendant for the same cause of action in another court.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`29.
`
`In the event Plaintiffs executed a settlement agreement releasing and
`
`discharging Answering Defendant from all claims arising out of Plaintiffs' alleged injury, all
`
`claims alleged by Plaintiffs should be dismissed.
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`30.
`
`To the extent that Plaintiffs have given a release or covenant not to sue or
`
`not to enforce a judgment to an alleged co-tortfeasor of Answering Defendant, Plaintiffs’ claims
`
`herein are reduced to the extent of any amount stipulated by the release or covenant, in the
`
`amount of the consideration paid for it, or in the amount of the released tortfeasor’s equitable
`
`share of the damages, whichever is greater.
`
`{00178241.}
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
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`202107160840
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`NYSCEF DOC. NO. 68
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`Index #: E2021004041
`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`products.
`
`31.
`
`Plaintiffs were not injured by exposure to any Answering Defendant
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`32.
`
`In the event that Plaintiffs were employed by any of the Defendants,
`
`Plaintiffs' sole and exclusive remedy is under the Worker Compensation Law of the State of New
`
`York.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`
`33.
`
`Insofar as the Complaint and Personal Injury Complaint, and each cause of
`
`action considered separately, allege a cause of action accruing on or after September 1, 1975, to
`
`recover damages for personal injuries, the amount of damages recoverable thereon must be
`
`diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory
`
`negligence and assumption of risk, in the proportion which the culpable conduct attributable to
`
`Plaintiffs.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`
`34.
`
`Insofar as the Complaint and Personal Injury Complaint, and each cause of
`
`action considered separately, allege a cause of action accruing on or after September 1, 1975,
`
`each such cause of action is barred by reason of the culpable conduct attributable to Plaintiffs,
`
`including contributory negligence and assumption of risk.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`35.
`
`To the extent that Plaintiffs were injured as alleged in the Complaint and
`
`Personal Injury Complaint, which Answering Defendant denies, said injury was proximately
`
`caused by the negligence, breach of warranty and strict liability of persons and entities other than
`
`Answering Defendant.
`{00178241.}
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`8 of 20
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`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
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`Index #: E2021004041
`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`36.
`
`To the extent that Plaintiffs were injured as alleged in the Complaint and
`
`Personal Injury Complaint, which Answering Defendant denies, such injury was the result of
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`intervening and superseding acts or omissions of parties or non-parties over whom Answering
`
`Defendant had no supervision or control or right to supervise or control.
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`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
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`37.
`
`At all times relevant hereto, the knowledge of Plaintiffs' employer(s) was
`
`superior to that of Answering Defendant with respect to possible health hazards associated with
`
`Plaintiffs' employment, and, therefore, if there was any duty to warn or provide protection to
`
`Plaintiffs, it was the duty of said employer, not of Answering Defendant, and breach of that duty
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`was an intervening and superseding cause of the injuries allegedly sustained by Plaintiffs.
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`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`38.
`
`At all times during the conduct of their corporate operations, the agents,
`
`servants, and employees of Answering Defendant used proper methods in their production
`
`activities in conformity to the available knowledge and research of the scientific and industrial
`
`communities.
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`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`39.
`
`To the extent that Plaintiffs sustained injuries from the use of Answering
`
`Defendant products, which Answering Defendant denies, such injuries resulted from the
`
`unforeseeable misuse, abuse, alteration, modification, and unauthorized handling of the product
`
`by Plaintiffs, or by third-parties, over whom Answering Defendant had no control or right to
`
`control.
`
`{00178241.}
`
`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`9 of 20
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`NYSCEF DOC. NO. 68
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`40.
`
`Plaintiffs voluntarily assumed the risks associated with the use of or
`
`exposure to the products at issue.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`41.
`
`Answering Defendant had no knowledge or reason to know of any alleged
`
`risks associated with finished asbestos-containing products at any time during the purported peril
`
`complained of in the Complaint and Personal Injury Complaint.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`42.
`
`Plaintiffs contributed to the injuries alleged by the use of other substances,
`
`products, medications, and drugs.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`
`43.
`
`Plaintiffs' injuries were caused directly, solely and proximately by
`
`sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiffs and not found in the general
`
`public, of which Answering Defendant neither knew, had reason to know, nor could have
`
`foreseen.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`
`44.
`
`As to all causes of action pleaded in the Complaint and Personal Injury
`
`Complaint which are based upon expressed or implied representations, such causes of action are
`
`legally insufficient as against Answering Defendant as there was no privity of contract between
`
`Plaintiffs and Answering Defendant.
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`45.
`
`Plaintiffs never purchased, directly or indirectly, any asbestos-containing
`
`product or materials from Answering Defendant, nor did Plaintiffs ever receive or rely upon any
`
`representation allegedly made by Answering Defendant.
`{00178241.}
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`202107160840
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`NYSCEF DOC. NO. 68
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`Index #: E2021004041
`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
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`46.
`
`Plaintiffs lack capacity and standing to maintain a claim for relief against
`
`Answering Defendant with respect to injuries alleged to have been suffered by Plaintiffs.
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`
`47.
`
`To the extent that Plaintiffs were exposed to any product manufactured by
`
`Answering Defendant, which Answering Defendant denies, said exposure was de minimis and
`
`not a substantial contributing factor to any asbestos-related disease which Plaintiffs may have
`
`developed, thus requiring dismissal of the Complaint and Personal Injury Complaint against
`
`Answering Defendant.
`
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`
`48.
`
`Plaintiffs' claims are barred because of Plaintiffs' failure to join necessary
`
`and indispensable parties.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`
`49.
`
`To the extent that Plaintiffs are entitled to damages, which Answering
`
`Defendant denies, Answering Defendant is entitled to a set-off for all Worker Compensation
`
`payments received by Plaintiffs.
`
`
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`
`50.
`
`In accordance with CPLR § 1601, Answering Defendant’s liability for
`
`non-economic loss is limited to its equitable share of the total liability for non-economic loss.
`
`
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`
`51.
`
`In accordance with CPLR § 4545(c), Answering Defendant is entitled to a
`
`set-off for any past or future costs or expenses incurred or to be incurred by Plaintiffs for medical
`
`care, custodial care of rehabilitation services, loss of earnings or other economic loss, which has
`{00178241.}
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`11 of 20
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`been or will with reasonable certainty be replaced or indemnified in whole or in part from a
`
`collateral source.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`
`52.
`
`[RESERVED].
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`
`53.
`
`At all relevant times, the state of the medical, scientific, and industrial
`
`knowledge, the state of the art, practice, and prevailing industry standards regarding
`
`asbestos-containing products was such that Answering Defendant neither knew, had reason to
`
`know, nor could have known of any foreseeable or significant risk or harm to Plaintiffs in the
`
`normal or expected use of Answering Defendant’s products, and, accordingly, there was no duty
`
`of Answering Defendant to warn Plaintiffs and that, to the extent such duty arose, adequate
`
`warnings were either given or were not necessary under all circumstances.
`
`
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`
`54.
`
`Any injuries sustained by Plaintiffs resulted from Plaintiffs’ alleged use of
`
`or exposure to asbestos or asbestos-containing products manufactured and sold in strict
`
`compliance with mandatory specifications established by persons or entities other than Answering
`
`Defendant, including, without limitation, agencies, agents and departments of the United States,
`
`which persons or entities possessed, at the time of such manufacture or sale, knowledge equal to
`
`or greater than that of Answering Defendant concerning the properties and characteristics of
`
`asbestos and asbestos-containing products.
`
`
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`
`55.
`
`Any asbestos-containing products allegedly attributable to Answering
`
`Defendant were supplied according to the purchaser’s or user’s specifications and standards.
`{00178241.}
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`NYSCEF DOC. NO. 68
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`INDEX NO. E2021004041
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`RECEIVED NYSCEF: 07/16/2021
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`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`
`56.
`
`Answering Defendant was under no legal duty to warn Plaintiffs of any
`
`hazards from the use of any asbestos-containing products. The actual purchasers and those under
`
`the purchasers’ control, Plaintiffs' employer(s), and the owners and lessors of the properties at
`
`which Plaintiffs alleges exposure to such products, were in a far better position to warn Plaintiffs
`
`and if any such warning was legally required, which is expressly denied; their failure to do so was
`
`a superseding and proximate cause of Plaintiffs' alleged injuries.
`
`
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`
`57.
`
`Plaintiffs were reasonably and adequately warned of any alleged risks
`
`associated with the use of or exposure to asbestos-containing products.
`
`
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`
`58.
`
`Timely and/or proper notice was not given to Answering Defendant as to
`
`any alleged breach of warranty.
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`
`59.
`
`To the extent Plaintiffs claims are based on an alleged breach of warranty,
`
`Plaintiffs did not rely on any warranty.
`
`
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`
`60.
`
`Any oral warranties upon which Plaintiffs allegedly relied are
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`inadmissible under the Statute of Frauds.
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`
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`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
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`61.
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`To the extent that the causes of action pleaded by Plaintiffs fail to accord
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`with the Uniform Commercial Code, including but not limited to Section 2-725 thereof, the
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`Plaintiffs' Complaint and Personal Injury Complaint are time-barred.
`{00178241.}
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`13 of 20
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`

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`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
`
`Index #: E2021004041
`INDEX NO. E2021004041
`
`RECEIVED NYSCEF: 07/16/2021
`
`
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`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
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`62.
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`Any claims by Plaintiffs for exemplary and punitive damages are barred
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`because such damages are not recoverable or warranted.
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`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
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`63.
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`Answering Defendant’s conduct was not reckless, malicious, willful or
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`grossly negligent, and consequently, Plaintiffs are not entitled to exemplary and punitive
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`damages.
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`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
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`64.
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`Any claim for punitive damages is barred by the double jeopardy clause of
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`the Fifth Amendment to the United States Constitution, as applied to the states through the
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`Fourteenth Amendment, as Article I, Section 6 of the New York State Constitution.
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`
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`AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
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`65.
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`Any claim for punitive damages is barred by the ex post facto clause of
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`Article I, Section 10 of the United States Constitution.
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`AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
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`66.
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`Any claim for punitive damages is barred by the proscription of Article I,
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`Section 5 of the New York State Constitution prohibiting the imposition of excessiveness.
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`
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`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
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`67.
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`To the extent the law of any other jurisdiction is applicable to this action,
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`any demand for punitive damages is barred by the applicable proscriptions of the constitution of
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`such jurisdiction.
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`AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
`
`{00178241.}
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`14 of 20
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`

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`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
`
`Index #: E2021004041
`INDEX NO. E2021004041
`
`RECEIVED NYSCEF: 07/16/2021
`
`
`
`68.
`
`Answering Defendant denies that Plaintiffs had any exposure to any
`
`asbestos product mined, processed, manufactured, supplied, developed, tested, fashioned,
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`packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce by
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`Answering Defendant, and more particularly denies upon information and belief that Answering
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`Defendant mined, processed, manufactured, supplied, developed, tested, fashioned, packaged,
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`distributed, delivered, sold and/or otherwise placed in the stream of commerce any asbestos
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`product at the times and upon the dates alleged in the Complaint and Personal Injury Complaint
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`herein.
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`AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
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`69.
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`Answering Defendant denies specifically that, during the periods of
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`exposure alleged in the Complaint and Personal Injury Complaint by the Plaintiffs, it mined,
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`processed, manufactured, supplied, developed,
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`tested, fashioned, packaged, distributed,
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`delivered, sold, and/or otherwise placed in the stream of commerce a substantial and/or any
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`percentage of the asbestos products to which Plaintiffs were caused to come into contact and
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`which Plaintiffs were caused to breathe, inhale, and digest and which thereby caused the
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`Plaintiffs’ injuries and resulting in damages alleged in the Complaint and Personal Injury
`
`Complaint herein.
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`AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
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`70.
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`Upon information and belief, Plaintiffs failed to mitigate or otherwise act
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`to lessen or reduce the injuries and disability alleged in the Complaint and Personal Injury
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`Complaint herein.
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`AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`
`{00178241.}
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`15 of 20
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`

`

`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
`
`Index #: E2021004041
`INDEX NO. E2021004041
`
`RECEIVED NYSCEF: 07/16/2021
`
`
`
`71.
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`Answering Defendant denies that the asbestos products alleged in
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`Plaintiffs' Complaint and Personal Injury Complaint are products within the meaning and scope
`
`of the Restatement of Torts § 402A, and as such the Complaint and Personal Injury Complaint
`
`fails to state a cause of action in strict liability.
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`AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`
`72.
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`Defendant has been denied due process in being compelled to proceed to
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`trial on an accelerated basis without the opportunity to engage in meaningful discovery and/or to
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`develop its defenses to liability.
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`
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`AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
`
`73.
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`Insofar as Plaintiffs' claims against Answering Defendant stem from the
`
`alleged misconduct, negligence or other wrongful act or tort of Answering Defendant, or any
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`purported corporate predecessor, affiliate or entity related to Answering Defendant, Plaintiffs'
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`claims are barred because Answering Defendant was not responsible for any such acts and
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`Answering Defendant has no successor liability with regard to any such entity/entities.
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`AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
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`74.
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`All defenses which have been or will be asserted by other Defendants in
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`this action are adopted and Inc. by reference as if fully set forth herein. In addition, Answering
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`Defendant will rely upon any and all other further defenses which become available or appear
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`during discovery in this action and hereby specifically reserves its right to amend its answer for
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`the purpose of asserting any such additional affirmative defenses.
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`AS AND FOR A CROSS-CLAIM
`AGAINST EACH OF THE OTHER DEFENDANTS
`
`
`{00178241.}
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`16 of 20
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`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
`
`Index #: E2021004041
`INDEX NO. E2021004041
`
`RECEIVED NYSCEF: 07/16/2021
`
`
`
`75.
`
`If damages were sustained at the time(s) and place(s) set forth in the
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`Complaint and Personal Injury Complaint through any carelessness, recklessness, and negligence
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`other than that of Plaintiffs’, including, but not limited to, the manufacture and distribution of
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`asbestos-containing products, breach of warranty or misrepresentations, either express or
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`implied, and/or through strict liability in tort, such damages, in whole or in part, will have been
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`caused and brought about by reason of the carelessness, recklessness and/or negligence of each
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`of the other Defendants named in this action.
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`76.
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`If Plaintiffs should recover a judgment against Answering Defendant, by
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`operation of law or otherwise, Answering Defendant will be entitled to judgment, contribution
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`and/or indemnification, in whole or in part, from each of the other Defendants named in this
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`action, their agents, servants and/or employees, by reason of their carelessness, recklessness,
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`and/or negligence for the amount of any such recovery, in accordance with principles of law
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`regarding apportionment of fault and damages, along with costs, disbursements and reasonable
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`expenses of the investigation and defense of this action, including reasonable attorney’s fees.
`
`WHEREFORE, Defendant ABB, Inc. demands judgment dismissing the Complaint and
`
`Personal Injury Complaint as to it, together with the costs and disbursements of this action, and,
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`to the extent of any recovery by Plaintiffs against Answering Defendant herein, further demands
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`judgment for contribution and/or indemnification against each of the other defendants named in
`
`the Complaint and Personal Injury Complaint together with Answering Defendant’s costs and
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`disbursements in this action.
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`
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`ANSWER TO ALL CROSS-CLAIMS
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`Answering Defendant hereby answers the cross-claims of each of the other defendants
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`named in this action, however asserted or alleged, and says:
`{00178241.}
`
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`17 of 20
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`

`

`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
`
`Index #: E2021004041
`INDEX NO. E2021004041
`
`RECEIVED NYSCEF: 07/16/2021
`
`
`
`77.
`
`All cross-claims for contribution alleged against Answering Defendant by
`
`any party Defendant are denied.
`
`78.
`
`All cross-claims for indemnification alleged against Answering Defendant
`
`by any party Defendant are denied.
`
`79.
`
`All cross-claims
`
`for contractual
`
`indemnification alleged against
`
`Answering Defendant by any party Defendant are denied.
`
`
`
`
`
`WHEREFORE, Defendant ABB, Inc. demands judgment in its favor and against all
`
`other Defendants and requests the Court to dismiss all cross-claims filed against Answering
`
`Defendant with prejudice and award Answering Defendant, its costs, attorney’s fees and
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`disbursements in this action.
`
`Dated: New York, New York
`July 15, 2021
`
`
`By: ____________________
` David P. Schaffer, Esq.
` Malaby & Bradley, LLC
` Attorneys for Defendant
` ABB, Inc.
` 150 Broadway, Suite 600
` New York, New York, 10038
` (212) 791-0285
`
`
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`
`
`To:
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`
`Weitz & Luxenberg, P.C.
`Attorneys for Plaintiffs
`Wendy Sedam, as Proposed Executrix
`for the Estate of Samuel Sedam, and
`Wendy Sedam, Individually
`700 Broadway
`New York, New York, 10003
`(212) 558-5500
`
`
`
`{00178241.}
`
`
`
`18 of 20
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`

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`202107160840
`FILED: MONROE COUNTY CLERK 07/16/2021 02:32 PM
`NYSCEF DOC. NO. 68
`
`Index #: E2021004041
`INDEX NO. E2021004041
`
`RECEIVED NYSCEF: 07/16/2021
`
`
`
`
`STATE OF NEW YORK
`
`)
`: SS:
`COUNTY OF NEW YORK )
`
`
`VERIFICATION
`
`David P. Schaffer, being duly sworn, deposes and says that I am associated with
`
`the law firm of Malaby & Bradley, LLC., having their offices at 150 Broadway, Suite 600, in the
`
`City, County and State of New York, attorneys for Answering Defendant, in the within action;
`
`that I have read the foregoing Verified Answer to Plaintiffs' Verified Complaint, Affirmative
`
`Defenses, Cross-Claims, and Answer to Cross-Claims of Defendant ABB, Inc. and know the
`
`contents thereof; that the same is true upon information and belief and I believe it to be true; that
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`the grounds of my belief are public records, records and documents currently in my possession
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`pertaining to this matter, and conversations with client’s agents; and that the reason why this
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`verification is made by me and not by said defendant is that said defendant’s principal place of
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`business is located outside New York County where Malaby & Bradley, LLC maintains its
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`offices.
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`The undersigned affirms that the foregoing s