FILED: SUFFOLK COUNTY CLERK 07/23/2018 04:08 PM
`NYSCEF DOC. NO. 50
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`INDEX NO. 611876/2018
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`JEROME NIEMCZYK and ELLEN NIEMCZYK,
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`-against-
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF SUFFOLK
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`________________________________________________x
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`Index No. 611876/2018
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`Plaintiffs,
`ANSWER AND
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`CROSS-CLAIMS
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`: OF DEFENDANT
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`BEAZER EAST, INC.
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`AMCHEM PRODUCTS, INC.,
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`Defendants.
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`________________________________________________x
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`Defendant Beazer East, Inc. f/k/a Koppers Company, Inc, incorrectly sued herein
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`as Koppers Company, Inc. and Koppers Industries, Inc., (“Beazer East”), by its attorneys, Darger
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`Errante Yavitz & Blau LLP, answers the Verified Complaint (the “Complaint”) of Plaintiffs
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`Jerome Niemczyk and Ellen Niemczyk (“Plaintiff” or collectively “Plaintiffs”), as follows:
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`UTHE PARTIES
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`1.
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`Beazer East denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraph 1 of the Complaint.
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`2.
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`Paragraph 2 of the Complaint contains no allegations to which a response is
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`required;
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`3.
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`Beazer East denies the allegations contained in paragraph 3 of the Complaint
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`insofar as such allegations pertain to Beazer East, except admits that Beazer East has done business
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`in this State, and denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations contained in the aforesaid paragraph as they pertain to other parties.
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`4.
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`Beazer East denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs 4 through 6 of the Complaint.
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`5.
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`Beazer East denies the allegations contained in paragraph 7 of the Complaint,
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`except admits that Beazer East has done business in the State of New York.
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`6.
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`Beazer East denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraphs 8 and 38 of the Complaint.
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`UAS TO THE FIRST CAUSE OF ACTION
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`In response to paragraph 39 of the Complaint, Beazer East repeats and reiterates its
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`7.
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`prior responses to each and every allegation of the Complaint as if set forth more fully below.
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`8.
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`Beazer East denies the allegations contained in paragraphs 40 through 58 of the
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`Complaint, insofar as such allegations pertain to Beazer East, and denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
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`they pertain to other parties.
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`UAS TO THE SECOND CAUSE OF ACTION
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`In response to paragraph 59 of the Complaint, Beazer East repeats and reiterates its
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`9.
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`prior responses to each and every allegation of the Complaint as if set forth more fully below.
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`10.
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`Beazer East denies the allegations contained in paragraphs 60 through 64 of the
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`Complaint insofar as such allegations pertain to Beazer East, and denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
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`they pertain to other parties.
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`UAS TO THE THIRD CAUSE OF ACTION
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`In response to paragraph 65 of the Complaint, Beazer East repeats and reiterates its
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`11.
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`prior responses to each and every allegation of the Complaint as if set forth more fully below.
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`12.
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`Beazer East denies the allegations contained in paragraphs 66 through 74 of the
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`Complaint insofar as such allegations pertain to Beazer East, and denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as
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`they pertain to other parties.
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`UAS TO THE FOURTH CAUSE OF ACTION
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`In response to paragraph 75 of the Complaint, Beazer East repeats and reiterates its
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`13.
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`prior responses to each and every allegation of the Complaint as if set forth more fully below.
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`14.
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`Beazer East denies the allegations contained in paragraphs 76 through 85 of the
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`Complaint, including all sub-parts therein, insofar as such allegations pertain to Beazer East, and
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations
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`contained in the aforesaid paragraphs as they pertain to other parties.
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`UAS TO THE FIFTH CAUSE OF ACTION
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`In response to paragraph 86 of the Complaint, Beazer East repeats and reiterates its
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`15.
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`prior responses to each and every allegation of the Complaint as if set forth more fully below.
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`16.
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`Beazer East denies the allegations contained in paragraphs 87 through 104 of the
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`Complaint, including all sub-parts therein, insofar as such allegations pertain to Beazer East, and
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations
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`contained in the aforesaid paragraphs as they pertain to other parties.
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`UAS TO THE SIXTH CAUSE OF ACTION
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`In response to paragraph 105 of the Complaint, Beazer East repeats and reiterates
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`17.
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`its prior responses to each and every allegation of the Complaint as if set forth more fully below.
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`18.
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`Beazer East denies knowledge or information sufficient to form a belief as to the
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`truth of the allegations contained in paragraph 106 of the Complaint.
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`19.
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`Beazer East denies the allegations contained in paragraph 107 of the Complaint
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`insofar as such allegations pertain to Beazer East, and denies knowledge or information sufficient
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`to form a belief as to the truth of the allegations contained in the aforesaid paragraphs as they
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`pertain to other parties.
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`UFOR A FIRST AFFIRMATIVE DEFENSE
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`The Complaint fails to state cognizable claims as against Beazer East.
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`UFOR A SECOND AFFIRMATIVE DEFENSE
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`While denying Plaintiff’s allegations with respect to liability, to the extent that negligence
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`or culpable conduct may be proven, the acts of Beazer East are not a proximate cause of any
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`injuries to Plaintiff.
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`UFOR A THIRD AFFIRMATIVE DEFENSE
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`The Complaint fails to comply with the most minimal pleading requirements.
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`UFOR A FOURTH AFFIRMATIVE DEFENSE
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`To the extent that the Complaint and the claims made by Plaintiff were not commenced
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`within the time limited by law, the Complaint is barred by the applicable statute of limitations
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`and/or laches.
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`UFOR A FIFTH AFFIRMATIVE DEFENSE
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`In the event that Plaintiff used any asbestos-containing product(s), said product(s) was
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`misused, or improperly used, which misuse or improper use proximately caused and contributed,
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`in whole or in part, to the claims alleged by Plaintiff in the Complaint.
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`UFOR A SIXTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff failed and neglected to maintain this action in a swift, diligent,
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`and timely fashion, the Complaint is barred by waiver and laches.
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`UFOR A SEVENTH AFFIRMATIVE DEFENSE
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`The injuries and/or illnesses to Plaintiff, if any, are unrelated to any act or omission of
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`Beazer East or any individual acting under its direction or control.
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`UFOR AN EIGHTH AFFIRMATIVE DEFENSE
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`Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce
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`the injuries and disabilities alleged in the Complaint.
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`UFOR A NINTH AFFIRMATIVE DEFENSE
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`If Plaintiff sustained the injuries and damages as alleged, the same were caused, in whole
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`or in part, by the conduct of one or more persons or entities over whom Beazer East exercised no
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`control and with whom Beazer East had no legal relationship.
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`UFOR A TENTH AFFIRMATIVE DEFENSE
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`To the extent that Beazer East conformed to the scientific knowledge and research data
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`available to industry and the scientific community, Beazer East have fulfilled its obligations, if
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`any, herein, and the Complaint is barred, in whole or in part.
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`UFOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff alleges rights derived from oral warranties, statements, or
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`undertakings on the part of Beazer East, the Complaint is barred by the applicable statute of frauds.
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`UFOR A TWELFTH AFFIRMATIVE DEFENSE
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`To the extent that the claims pleaded by Plaintiff fail to accord with the Uniform
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`Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint is barred.
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`UFOR A THIRTEENTH AFFIRMATIVE DEFENSE
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`To the extent that any of the products for which liability is charged to Beazer East, which
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`is denied, were modified, altered, qualified, assembled, or in any other way materially varied,
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`which same may be causally related to the claims of Plaintiff, the Complaint is barred.
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`UFOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`The cause(s) of action pleaded in the Complaint insofar as they assert an alleged cause of
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`action for express and/or implied warranties and the alleged breaches thereof, as against Beazer
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`East, is legally insufficient by reason of the failure to allege privity of contract and/or privity of
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`warranties between Plaintiff and Beazer East.
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`UFOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`Upon information and belief, insofar as Plaintiff relies upon allegations of negligence,
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`breaches of warranties, fraudulent representations and violations of obligations of strict products
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`liability as against Beazer East, said causes of action fail to state facts sufficient to constitute causes
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`of action as against Beazer East by reason of the failure to allege the freedom of Plaintiff from
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`contributory negligence or fault, and if Plaintiff sustained the injuries, losses and other damages
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`complained of in the Complaint, such injuries, losses, and damages were caused and brought about,
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`in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or the culpable
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`conduct of Plaintiff.
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`UFOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`The injuries and/or illnesses to Plaintiff, if any, arose, in whole or in part out of the risks,
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`hazards and dangers incident to the occupation of Plaintiff, all of which, whether related to asbestos
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`or not, were open, obvious and well known to Plaintiff, and the Complaint is barred by virtue of
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`Plaintiff’s assumption of the risks thereof.
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`UFOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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`Upon information and belief, Beazer East complied with all safety rules and regulations in
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`effect at the relevant times and acted reasonably in all of its activities.
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`UFOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
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`To the extent that the use, application, employment, surrounding conditions, safety
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`precautions, and other circumstances attendant upon the material allegedly used by Plaintiff were
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`determined, controlled, selected, or limited by him and/or by others for whose acts, omissions, or
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`breach Beazer East is not liable, the Complaint is barred, in whole or in part.
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`UFOR A NINETEENTH AFFIRMATIVE DEFENSE
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`The injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workmen’s
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`Compensation statutes and shall have constituted an industrial disability and the exclusive remedy,
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`if any, shall lie within the terms and ambit of said statutes.
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`UFOR A TWENTIETH AFFIRMATIVE DEFENSE
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`Upon information and belief, if Plaintiff sustained any of the injuries, losses, and
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`damages complained of in the Complaint, such injuries, losses, and damages were caused or
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`brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or
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`other culpable conduct of parties or third parties to this action, other than Beazer East, and over
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`whom Beazer East had neither control nor right of control.
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`UFOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
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`Upon information and belief, if Plaintiff sustained any of the injuries, losses, and damages
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`complained of in the Complaint, such injuries, losses, and damages were caused or brought about,
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`in whole or in part, by the negligence, carelessness, assumptions of risks, fault, or other culpable
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`conduct of Plaintiff.
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`UFOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`Upon information and belief, any recovery in this action by Plaintiff, if any, must be
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`diminished and reduced in the proportion which the said culpable conduct of Plaintiff bears to the
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`alleged culpable conduct of Beazer East, if any, which allegedly caused said injuries, losses, and
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`damages.
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`UFOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
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`At all times during the conduct of its corporate operations, Beazer East and the agents,
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`servants, and/or employees of Beazer East complied with all applicable law, regulations, standards,
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`and the available knowledge, and technology of the medical, scientific, and industrial
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`communities.
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`UFOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`At all times material hereto, the state of the medical, industrial and scientific arts,
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`knowledge, and technology was that there was no generally accepted or recognized nature of
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`asbestos-containing products when used in the manner and for the purposes intended, so that there
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`was no duty by Beazer East to know of such character or nature or to warn Plaintiff, or others
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`similarly situated, and to the extent such duty arose, adequate warnings either were given or were
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`not necessary under all circumstances.
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`UFOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`The parties, other than Beazer East, who were responsible for the conditions of Plaintiff’s
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`work environment were sophisticated purchasers upon whom devolved all responsibility for the
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`use of the products referred to in the Complaint.
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`UFOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`In the event it should be proven at the time of trial that all the defendants are subject to
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`liability, then, Beazer East’s share of such liability would be of such a de minimus amount as to
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`make its contribution for damages negligible, and Beazer East would be entitled to contribution,
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`either in whole or in part, from the co-defendants not represented by this Verified Answer and
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`Cross-Claims.
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`UFOR A TWENTY-SEVENTH AFFIRMATIVE 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 Rule 19 of the Federal Rules of Civil Procedure and/or CPLR 1001.
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`UFOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`Proceeding in this action without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight
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`Insulation, Owens-Corning and/or Standard Insulations, W.R. Grace, and all other entities in
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`Bankruptcy relating thereto, would be in violation of Beazer’s constitutional rights.
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`UFOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff relies on the New York Law, L. 1986. c. 682, Section 4 as
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`grounds for reviving or maintaining the action, said statute(s) is unconstitutional and deprives
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`Beazer East of its constitutional rights and is wholly void and unenforceable.
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`UFOR A THIRTIETH AFFIRMATIVE DEFENSE
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`To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and
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`prompt notice of any such breach of warranty to Beazer East.
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`UFOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
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`Any recovery by Plaintiff in this action must be reduced by collateral source payments
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`pursuant to CPLR Section 4545.
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`UFOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff contributed to his injuries by the use or misuse, either in whole
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`or in part, of other substances, products, medications, and drugs, including, but not limited to any
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`tobacco products, any liability should be reduced by the extent of any use and/or injuries related
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`thereto or caused thereby pursuant to the Restatement of Torts (Second) §433A.
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`UFOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
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`If Plaintiff was caused to sustain personal injuries at the time and place set forth in the
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`Complaint and in the manner alleged therein through any carelessness, recklessness, acts,
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`omissions, negligence, and/or breaches of duty and/or warranty and/or contract, other than that of
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`Plaintiff, then the said damages arose out of the carelessness, recklessness, acts, omissions,
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`negligence, and breaches of duty and/or warranty and/or contract in fact or implied-in-law, upon
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`the part of the co-defendants and third-party defendants now or hereafter named, with
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`indemnification and/or contribution due to Beazer East as implied-in-fact or implied-in-law, and
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`if Beazer East is found liable as to Plaintiff and/or any third-party Plaintiffs for the injuries and
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`damages set forth in the Complaint and/or the third-party complaints, then the said co-defendants
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`and third-party defendants now or hereafter named will be liable jointly and severally to Beazer
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`East and will be bound to fully indemnify and hold Beazer East harmless for the full amount of
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`any verdict or judgment, and/or Beazer East is entitled to contribution, in whole or in part, from
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`each of the co-defendants and third-party defendants now or hereafter named, together with the
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`costs and disbursements incurred in the defense of this action.
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`UFOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff was exposed to toxic substances, any liability should be reduced
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`to the extent any injuries are related to thereto or caused thereby.
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`UFOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff seeks punitive damages against Beazer East and relies on
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`Section 4 of the New York Laws 1986, c. 682 as grounds for reviving or maintaining the action,
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`such damages are improper and are not authorized by law since this statute does not revive any
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`claims for punitive damages, leaving each of such claims time barred in its entirety.
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`UFOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
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`To the extent that Plaintiff seeks punitive damages against Beazer East, these damages are
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`improper and unwarranted, not authorized by law, and are unconstitutional. Subjecting Beazer
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`East to multiple trials and the multiple impositions of punitive damages for a single course of
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`conduct is a violation of both substantive and procedural due process under the Fourteenth
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`Amendment to the United States Constitution and the Constitution of the State of New York.
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`Furthermore, the standard governing the award of punitive damages is constitutionally void for
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`vagueness.
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`UFOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
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`The injuries and/or illnesses, if any, sustained by Plaintiff, were caused or contributed to
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`by the fault, neglect, and want of care on the part of Plaintiff, or on the part of others for whose
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`acts or omissions or breach of legal duty, and Beazer East is not liable.
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`UFOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
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`Plaintiff’s claims for punitive damages cannot be sustained because an award of punitive
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`damages under New York state law by a jury would violate Beazer East’s privileges and
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`immunities, due process and equal protection rights guaranteed under the Fourteenth Amendment
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`to the United States Constitution, and the Commerce Clause under Article I to the United States
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`Constitution, as well as the New York Constitution, and would be improper under the common
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`law and public policies of New York.
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`UFOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
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`Beazer East pleads comment k to the Restatement (Second) of Torts, Section 402A.
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`UFOR A FORTIETH AFFIRMATIVE DEFENSE
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`Each of Plaintiff’s claims is barred by prior accord and satisfaction.
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`UFOR A FORTY-FIRST AFFIRMATIVE DEFENSE
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`To the extent that the physically injured Plaintiff alleged asbestos exposure occurred prior
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`to the date of his/her marriage, no loss of consortium claim may be asserted.
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`UFOR A FORTY-SECOND AFFIRMATIVE DEFENSE
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`Plaintiff’s claims for exemplary or punitive damages are barred because such damages are
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`not recoverable or warranted in this action.
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`UFOR A FORTY-THIRD AFFIRMATIVE DEFENSE
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`Article 16 of the Civil Practice Law and Rules applies to this action and pursuant to the
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`law of New York, the liability, if any, of Beazer East for non-economic loss is not joint and several
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`but shall be limited to the proportionate share, if any, attributed to Beazer East.
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`UFOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
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`Beazer East’s activities and undertakings were conducted in a reasonable fashion, without
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`recklessness, malice, or wantonness, and Plaintiff may not recover in this action any compensatory,
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`exemplary, or punitive damages against Beazer East.
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`UFOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
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`Beazer East asserts that this Court lacks personal jurisdiction over this action.
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`UFOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
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`Beazer East asserts that this Court lacks subject matter jurisdiction over this action.
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` UFOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
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`Beazer East gave, made or otherwise extended no warranties, whether express or implied,
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`upon which Plaintiff has a right to rely.
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`UFOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
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`Beazer East denies specifically that, during the periods of exposure alleged in the
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`Complaint, it processed, manufactured, designed, supplied, developed, tested, fashioned,
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`packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce a
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`substantial and/or any percentage of the asbestos-containing products to which the physically
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`injured Plaintiff was caused to come into contact and which Plaintiff was caused to breathe, inhale,
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`and/or digest which thereby caused Plaintiff alleged injuries and resulting damages alleged in the
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`Complaint.
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`UFOR A FORTY-NINTH AFFIRMATIVE DEFENSE
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`Plaintiff’s claims should be dismissed on the grounds of improper venue and/or forum non
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`conveniens.
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`UFOR A FIFTIETH AFFIRMATIVE DEFENSE
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`If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are
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`the result of an idiosyncratic reaction, rather than the result of any negligence or breach of duty
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`attributable in any manner to Beazer East.
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`UFOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
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`The physically injured Plaintiff may have significant pre-existing medical histories that
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`were the causative factor of the alleged injuries.
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`UFOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
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` Beazer East asserts that, in all respects, it conducted its operations in a reasonable manner.
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`UFOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
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`If Plaintiff sustained the injuries and damages as alleged, such injuries and damages are
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`the result of an operation of nature, rather than the result of want of care or breach of duty by
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`Beazer East.
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`UFOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
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`Any verdict or judgment against any defendant, including Beazer East, is entitled to
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`reduction pursuant to General Obligations Law § 15-108, on the basis of prior settlements and/or
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`compromises.
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`UFOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
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`All defenses that have been or will be asserted by other defendants in this action are adopted
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`and incorporated by reference as if fully set forth at length herein as defenses to the Complaint.
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`UFOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
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`Beazer East reserves the right to amend this Verified Answer and Cross-Claims to assert
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`additional defenses upon discovery of the specific facts upon which Plaintiff bases its claims for
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`relief, and upon completion of further discovery.
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`UANSWER TO CROSS-CLAIMS BY CO-DEFENDANTS
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`Beazer East denies any and all cross-claims for contribution and/or indemnification that
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`have been asserted or may be asserted at any time by co-defendants in this action.
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`UCROSS-CLAIMS AGAINST CO-DEFENDANTS AND THIRD-PARTY DEFENDANTS
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`If Plaintiff was caused to sustain personal injuries at the time and place set forth in the
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`Complaint and alleged therein through any carelessness, recklessness, acts, omissions, negligence,
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`and/or breaches of duty and/or warranty and/or contract, other than that of Plaintiff, then the such
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`injuries arose out of the carelessness, recklessness, acts, omissions, negligence, and breaches of
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`duty and/or warranty and/or contract in-fact or implied-in-law, upon the part of the co-defendants
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`and third-party defendants now or hereafter named herein with indemnification and/or contribution
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`to Beazer East as implied-in-fact or implied-in-law, and if Beazer East is found liable as to Plaintiff
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`14
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`14 of 16
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`FILED: SUFFOLK COUNTY CLERK 07/23/2018 04:08 PM
`NYSCEF DOC. NO. 50
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`INDEX NO. 611876/2018
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`RECEIVED NYSCEF: 07/23/2018
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`and/or third-party Plaintiff(s) for the injuries and damages set forth in the Complaint and/or in any
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`third-party complaint(s), then the said co-defendants and third-party defendants will be liable
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`jointly and severally to Beazer East and should indemnify and hold Beazer East harmless for the
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`full amount of any verdict or judgment, or in the alternative, Beazer East is entitled to contribution,
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`in whole or in part, from each of the co-defendants and third-party defendants now or hereafter
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`named herein, together with the costs and disbursements incurred in the defense of this action.
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`WHEREFORE, Beazer East demands judgment dismissing the Complaint, or in the
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`alternative, demands judgment over and against the Co-defendants and Third-party Defendants
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`now and hereafter named on the basis of indemnification or contribution for all or part of any
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`verdict or judgment, together with its costs and disbursements, and such other and further relief as
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`this Court deems appropriate.
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`July 23, 2018
`New York, New York
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`Dated:
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`
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` /s/
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`By: Diana Smithens, Esq.
`DARGER ERRANTE YAVITZ & BLAU LLP
`116 East 27th Street, 12th Floor
`New York, New York 10016
`212.452.5300
`Counsel for Defendant Beazer East, Inc. f/k/a
`Koppers Company, Inc.
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`
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`
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`
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`To: WEITZ & LUXENBURG, P.C.
`700 Broadway
`New York, New York 10003
`Counsel for Plaintiffs
`Served via e-file
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`15
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`15 of 16
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`FILED: SUFFOLK COUNTY CLERK 07/23/2018 04:08 PM
`NYSCEF DOC. NO. 50
`
`INDEX NO. 611876/2018
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`RECEIVED NYSCEF: 07/23/2018
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`
`
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`STATE OF NEW YORK
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`COUNTY OF NEW YORK
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`
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`UVERIFICATION
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`
`)
`: ss.
`)
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`The undersigned attorney admitted to practice in the Court of New York State, shows:
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`The deponent is an associate of the firm of Darger Errante Yavitz & Blau LLP, counsel for
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`Defendant Beazer East, Inc. in the within action. The deponent has read the foregoing Answer to
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`Complaint, Affirmative Defenses, Answer to Cross-Claims, and Cross-Claims of Beazer East, Inc.,
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`and knows the contents thereof, and that the same is true to the deponent’s own knowledge, except
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`as to those matters therein stated to be alleged on information and belief, and as to those matters
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`the deponent believes them to be true. The deponent further states that the reason that this
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`verification is made by the deponent and not by the Defendant is because the Defendant is a foreign
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`corporation.
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`The grounds of the deponent’s belief as to all matters not stated upon the deponent’s
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`knowledge are as follows: records, reports, and correspondence in the deponent’s files.
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`The undersigned affirms, under penalties of perjury, that the foregoing statements are true.
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`
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`Dated: July 23, 2018
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` New York, New York
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`
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` /s/
` DIANA SMITHENS, ESQ.
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`16 of 16
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