FILED: NEW YORK COUNTY CLERK 09/23/2020 01:10 PM
`NYSCEF DOC. NO. 50
`
`INDEX NO. 190154/2020
`
`RECEIVED NYSCEF: 09/23/2020
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`--------------------------------------------------------------------x
`MARGARET M. MACCAFFREY, as Executor of
`the Estate of BRIAN E. MCCAFFREY, Deceased,
`
` Plaintiff(s),
`
`
`
`
`- against –
`
`
`
`A.O. SMITH CORPORATION, et al.,
`
`
` Defendants.
`--------------------------------------------------------------------x
`
`VERIFIED
`ANSWER TO
`VERIFIED
`COMPLAINT
`
`Index No. 190154/2020
`
`Defendant, GREENE, TWEED & CO., INC. (“GREENE TWEED”), by its attorneys,
`
`Segal McCambridge Singer & Mahoney, Ltd. for its answer to the Verified Complaint, allege on
`
`information and belief:
`
`1. Denies all material allegations in the Plaintiff’s Verified Complaint as they
`
`pertain to GREENE TWEED.
`
`2. Denies knowledge or information sufficient to form a belief as to the truth
`
`of each and every other allegation contained in Plaintiff’s Verified Complaint.
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`AFFIRMATIVE DEFENSES
`
`The venue of this action is improper.
`
`Plaintiff’s Verified Complaint fails to set forth a cause of action upon
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`3.
`
`4.
`
`which relief can be granted.
`
`5.
`
`6.
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`Limitations.
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`This Court lacks personal jurisdiction over GREENE TWEED.
`
`Plaintiff’s cause of action is barred by the applicable Statute of
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`1 of 8
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`NYSCEF DOC. NO. 50
`
`INDEX NO. 190154/2020
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`RECEIVED NYSCEF: 09/23/2020
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`--------------------------------------------------------------------x
`MARGARET M. MACCAFFREY, as Executor of
`the Estate of BRIAN E. MCCAFFREY, Deceased,
`
` Plaintiff(s),
`
`
`
`
`- against –
`
`
`
`A.O. SMITH CORPORATION, et al.,
`
`
` Defendants.
`--------------------------------------------------------------------x
`
`VERIFIED
`ANSWER TO
`VERIFIED
`COMPLAINT
`
`Index No. 190154/2020
`
`Defendant, GREENE, TWEED & CO., INC. (“GREENE TWEED”), by its attorneys,
`
`Segal McCambridge Singer & Mahoney, Ltd. for its answer to the Verified Complaint, allege on
`
`information and belief:
`
`1. Denies all material allegations in the Plaintiff’s Verified Complaint as they
`
`pertain to GREENE TWEED.
`
`2. Denies knowledge or information sufficient to form a belief as to the truth
`
`of each and every other allegation contained in Plaintiff’s Verified Complaint.
`
`AFFIRMATIVE DEFENSES
`
`The venue of this action is improper.
`
`Plaintiff’s Verified Complaint fails to set forth a cause of action upon
`
`3.
`
`4.
`
`which relief can be granted.
`
`5.
`
`6.
`
`Limitations.
`
`This Court lacks personal jurisdiction over GREENE TWEED.
`
`Plaintiff’s cause of action is barred by the applicable Statute of
`
`1 of 8
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`FILED: NEW YORK COUNTY CLERK 09/23/2020 01:10 PM
`NYSCEF DOC. NO. 50
`
`INDEX NO. 190154/2020
`
`RECEIVED NYSCEF: 09/23/2020
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`7.
`
`Plaintiff’s Verified Complaint fails to allege any cause of action specific
`
`to GREENE TWEED.
`
`8. GREENE TWEED was improperly served with process.
`
`9. All claims against GREENE TWEED have been discontinued by prior
`
`release and/or settlement agreement.
`
`10. GREENE TWEED was not negligent.
`
`11. GREENE TWEED was not reckless.
`
`12. GREENE TWEED did not engage in misconduct or willful misconduct.
`
`13. GREENE TWEED did not act with wanton disregard for the rights, safety,
`
`and position of the Plaintiff or any other person.
`
`14. GREENE TWEED did not distort or cause to be distorted any medical
`
`examinations, results, or data.
`
`15. GREENE TWEED did not edit or alter medical literature.
`
`16. GREENE TWEED did not attempt to prevent the publication of medical
`
`literature.
`
`information.
`
`17. GREENE TWEED did not distort or cause to be distorted medical
`
`18. Any asbestos products which may have been sold by GREENE TWEED
`
`were not inherently defective, ultra-hazardous, dangerous, deleterious, poisonous, and/or
`
`otherwise legally harmful.
`
`19. Any asbestos products which may have been sold or used by GREENE
`
`TWEED were not unsafe.
`
`20. Any asbestos products which may have been sold or used by GREENE
`
`TWEED were not incorrectly packaged.
`
`2 of 8
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`FILED: NEW YORK COUNTY CLERK 09/23/2020 01:10 PM
`NYSCEF DOC. NO. 50
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`INDEX NO. 190154/2020
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`RECEIVED NYSCEF: 09/23/2020
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`21. GREENE TWEED did not fail to adequately test any asbestos products
`
`which it might have sold or used.
`
`22. Any acts or omissions of GREENE TWEED alleged to constitute
`
`negligence were not substantial causative factors of the injuries and/or losses alleged to have
`
`been sustained.
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`23.
`
`The injuries and/or losses alleged to have been sustained were caused
`
`entirely by or contributed to by the negligent acts or omission of individuals and/or entities other
`
`than GREENE TWEED.
`
`24. Any asbestos products which may have been sold or used by GREENE
`
`TWEED may have been substantially changed in their condition after said products left the
`
`possession of GREENE TWEED.
`
`25. GREENE TWEED provided all necessary, required, and adequate
`
`warnings or instructions.
`
`26. Negligent acts and/or omissions of individuals and/or entities other than
`
`GREENE TWEED constituted intervening and/or superseding acts of negligence.
`
`27. GREENE TWEED extended no warranty to the plaintiff.
`
`28. GREENE TWEED did not breach any warranty or warranties it may have
`
`extended.
`
`29.
`
`Plaintiff failed to provide GREENE TWEED with proper and timely
`
`notice of any alleged breached warranty.
`
`30. GREENE TWEED did not take part in and was not a part of or party to
`
`any conspiracy.
`
`31. GREENE TWEED did not make any misrepresentation and/or commit
`
`any fraudulent acts.
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`3 of 8
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`FILED: NEW YORK COUNTY CLERK 09/23/2020 01:10 PM
`NYSCEF DOC. NO. 50
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`INDEX NO. 190154/2020
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`RECEIVED NYSCEF: 09/23/2020
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`32. GREENE TWEED did not distribute its products without proper and
`
`adequate identification labeling.
`
`33. Any asbestos products which may have been sold and/or used by
`
`GREENE TWEED were not within the exclusive control of GREENE TWEED.
`
`34. GREENE TWEED entered into no tacit agreement and/or industry wide
`
`standards or procedures as alleged.
`
`35.
`
`For any plaintiff alleging exposure during United States military service,
`
`U.S. government activity or at any U.S. government owned premises including any U.S. vessel,
`
`GREENE TWEED was acting as a government contractor in supplying products to the United
`
`States government. The United States approved reasonably precise specifications for the
`
`products supplied by GREENE TWEED. The GREENE TWEED products conformed to those
`
`specifications; and the United States were knowledgeable of any dangers associated with the use
`
`of those products.
`
`36.
`
`The imposition of punitive damages violates the Due Process Clause of
`
`the United States Constitution and the Constitution of the State of New York.
`
`37.
`
`The imposition of punitive damages violates the Equal Protection Clause
`
`of the United States Constitution and the Constitution of the State of New York.
`
`38.
`
`In the event Plaintiff recover a verdict or judgment against this Defendant,
`
`then said verdict or judgment must be reduced pursuant to CPLR 4544(C) by those amounts
`
`which have replaced or indemnified or will, with reasonable certainty, replace or indemnified
`
`Plaintiff in whole or in part, for any past or future claimed economic loss, from any collateral
`
`source such as insurance, social security, worker’s compensation, or employee benefit programs.
`
`39.
`
`The
`
`imposition of punitive damages violates
`
`the United States
`
`Constitution’s Eighth Amendment guarantee against excessive fines.
`
`4 of 8
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`FILED: NEW YORK COUNTY CLERK 09/23/2020 01:10 PM
`NYSCEF DOC. NO. 50
`
`INDEX NO. 190154/2020
`
`RECEIVED NYSCEF: 09/23/2020
`
`40.
`
`That insofar as the Verified Complaint and each cause of action
`
`considered separately, alleges a cause of action accruing before September 1, 1975, any recovery
`
`by plaintiff for each such cause of action is barred by reason of contributory negligence or
`
`assumption of risk of plaintiff.
`
`41. All causes of action pleaded in the Verified Complaint have not been
`
`maintained in a timely fashion and each plaintiff has neglected same and should be barred by the
`
`doctrine of laches.
`
`42. All claims brought under New York Law, L. 1986 C. 682 § 4 (enacted
`
`August 31, 1986) are time-barred in that said statute is in violation of the Constitution of the
`
`United States and the Constitution of the State of New York.
`
`43.
`
`This action must be dismissed because plaintiffs have not joined necessary
`
`parties to the adjudication of the claims asserted in the Verified Complaint, in whose absence
`
`complete relief cannot be accorded and whose absence impedes the ability of this answering
`
`defendant, to protect its interests.
`
`44.
`
`In the event plaintiff was employed by any of the defendants herein, then
`
`Plaintiff’s sole and exclusive remedy is under the Workers’ Compensation Law of the State of
`
`New York.
`
`45.
`
`That at all of the times during the conduct of its corporate operations, the
`
`agents, servants or employees of this answering defendant utilized proper methods in the conduct
`
`of its operations, in conformity with the available knowledge and research of the scientific and
`
`industrial communities.
`
`46.
`
`Plaintiff lack the requisite capacity, standing and authority to bring this
`
`action, as plaintiff are not real parties in interest.
`
`5 of 8
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`FILED: NEW YORK COUNTY CLERK 09/23/2020 01:10 PM
`NYSCEF DOC. NO. 50
`
`INDEX NO. 190154/2020
`
`RECEIVED NYSCEF: 09/23/2020
`
`47.
`
`That to the extent any plaintiff seeks to maintain causes of action on
`
`behalf of any decedents, said plaintiff lack capacity and/or standing to maintain such causes of
`
`action against defendant, GREENE TWEED.
`
`48.
`
`Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries
`
`alleged in the Verified Complaint.
`
`49.
`
`The damages allegedly sustained by plaintiff were caused, in whole or in
`
`part, through the operation of nature.
`
`50. All defenses which have been or will be asserted by other defendants
`
`and/or any defendants in this action, are adopted and incorporated by reference as if fully set
`
`forth at length herein as defenses to Plaintiff’s Verified Complaint. In addition, defendant,
`
`GREENE TWEED, will rely upon any and all other defenses which become available or appear
`
`during discovery proceedings in this action and hereby specifically reserves the right to amend
`
`its Answer for the purpose of asserting such additional affirmative defenses.
`
`51. Any and all risks, hazards, defects and dangers alleged are of an open,
`
`obvious, apparent nature, inherent and known or should have been known to plaintiff, and the
`
`injuries and damages alleged to have been sustained were caused in whole or in part by the
`
`culpable conduct of plaintiff.
`
`52.
`
`The amounts recoverable by plaintiff is subject to limitation pursuant to
`
`Section 1601, Civil Practice Laws and Rules, by reason of the culpable conduct of other
`
`person(s) who are, or with reasonable diligence could have been made party defendant(s) to this
`
`action, or pursuant to Section 15-108, General Obligations Law, by reason of a prior settlement
`
`between plaintiff and said person(s), or by reason of the fact that punitive damages are not
`
`recoverable.
`
`CROSS-CLAIMS
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`6 of 8
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`FILED: NEW YORK COUNTY CLERK 09/23/2020 01:10 PM
`NYSCEF DOC. NO. 50
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`INDEX NO. 190154/2020
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`RECEIVED NYSCEF: 09/23/2020
`
`
`
`
`
`53.
`
`Any damages sustained by the plaintiff was caused in whole or in part by
`
`the acts or omissions of other defendants, who are or may be liable to the defendants answering
`
`hereby for contribution on the basis of their equitable shares of responsibility, or for indemnity
`
`on the basis of a contract between them, actual or implied.
`
`
`
`WHEREFORE, defendant demands judgment dismissing the Verified Complaint and all
`
`cross-claims against them, or, in the event that they are adjudged liable, granting judgment over,
`
`or apportioning such liability in accordance with their equitable shares of responsibility, and
`
`awarding the costs of this action, together with such other and further relief as to the court may
`
`seem just.
`
`Dated: New York, New York
`
`September 23, 2020
`
`Yours, etc.
`
`SEGAL McCAMBRIDGE SINGER &
`MAHONEY, LTD.
`Attorneys for Defendant
`GREENE, TWEED & CO., INC.
`850 Third Avenue, Suite 1100
`New York, NY 10022
`(212) 651-7500
`
` By:
`
`/s/ Sebastian P. Melo-Ortiz
`SEBASTIAN P. MELO-ORTIZ, Esq.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`To: SIMMONS HANLY CONROY
`112 Madison Avenue
`New York, NY 10016
`
`7 of 8
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`FILED: NEW YORK COUNTY CLERK 09/23/2020 01:10 PM
`NYSCEF DOC. NO. 50
`
`INDEX NO. 190154/2020
`
`RECEIVED NYSCEF: 09/23/2020
`
`
`
`V E R I F I C A T I O N
`
`SEBASTIAN P. MELO-ORTIZ, an attorney duly admitted to practice in the Court of the State
`
`of New York and designated as attorney for the defendant GREENE, TWEED & CO., INC.
`
`(“GREENE TWEED”), in the above-entitled action, affirms the following statements to be true under the
`
`penalties of perjury, pursuant to Rule 2106 of the CPLR:
`
`That he has read the foregoing ANSWER and knows the contents thereof; that the same is true to
`
`his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and
`
`that as to those matters he believes them to be true.
`
`Affiant further says that the source of his information and the grounds of his belief are derived
`
`from the files, books and records maintained in the normal course of business of the Law Offices of
`
`Segal McCambridge Singer & Mahoney, Ltd. and statements made to him by officers or agents of
`
`GREENE TWEED.
`
`This Verification is made by affiant and not by defendant because defendant resides outside the
`
`County of New York where affiant maintains his office.
`
`Dated: New York, New York
`September 23, 2020
`
`
`
` /s/ Sebastian P. Melo-Ortiz
`
`SEBASTIAN P. MELO-ORTIZ, Esq.
`SEGAL McCAMBRIDGE SINGER &
`MAHONEY, LTD.
`Attorneys for Defendant
`GREENE, TWEED & CO., INC.
`850 Third Avenue, Suite 1100
`New York, NY 10022
`(212) 651-7500
`
`
`
`
`
`
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`8 of 8
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