FILED: SUFFOLK COUNTY CLERK 01/13/2016 01:58 PM INDEX NO. 612982/2015 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/13/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------------x STEPHEN T. NERWINSKI and SUZANNE NERWINSKI, - against Plaintiff(s), VERIFIED ANSWER TO VERIFIED COMPLAINT Index No. 612982/15 A.O. SMITH WATER PRODUCTS CO., et al. Defendants. --------------------------------------------------------------------x Defendant, BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, 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 Plaintiffs Verified Complaint as they pertain to BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, hereinafter referred to as BW/IP. 2. Denies knowledge or information sufficient to form a belief as to the truth of each and every other allegation contained in Plaintiffs Verified Complaint. AFFIRMATIVE DEFENSES 3. The venue of this action is improper. 4. Plaintiffs Verified Complaint fails to set forth a cause of action upon which relief can be granted. 5. BW/IP, is a foreign business corporation, to wit, plaintiff cannot establish personal jurisdiction over this defendant within this Court and Venue. 6. Plaintiffs cause of action is barred by the applicable Statute of Limitations.
7. Plaintiffs Verified Complaint fails to allege any cause of action specific to BW/IP. 8. BW/IP was improperly served with process. 9. All claims against BW/IP have been discontinued by prior release and/or settlement agreement. 10. BW/IP was not negligent. 11. BW/IP was not reckless. 12. BW/IP did not engage in misconduct or willful misconduct. 13. BW/IP did not act with wanton disregard for the rights, safety, and position of the Plaintiff or any other person. 14. BW/IP did not distort or cause to be distorted any medical examinations, results, or data. 15. BW/IP did not edit or alter medical literature. 16. BW/IP did not attempt to prevent the publication of medical literature. 17. BW/IP did not distort or cause to be distorted medical information. 18. Any asbestos products which may have been sold by BW/IP 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 BW/IP were not unsafe. 20. Any asbestos products which may have been sold or used by BW/IP were not incorrectly packaged.
21. BW/IP did not fail to adequately test any asbestos products which it might have sold or used. 22. Any acts or omissions of BW/IP alleged to constitute negligence were not substantial causative factors of the injuries and/or losses alleged to have been sustained. 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 BW/IP. 24. Any asbestos products which may have been sold or used by BW/IP may have been substantially changed in their condition after said products left the possession of BW/IP. 25. BW/IP provided all necessary, required, and adequate warnings or instructions. 26. Negligent acts and/or omissions of individuals and/or entities other than BW/IP constituted intervening and/or superseding acts of negligence. 27. BW/IP extended no warranty to the plaintiff. 28. BW/IP did not breach any warranty or warranties it may have extended. 29. Plaintiff failed to provide BW/IP with proper and timely notice of any alleged breached warranty. 30. BW/IP did not take part in and was not a part of or party to any conspiracy. 31. BW/IP did not make any misrepresentation and/or commit any fraudulent acts. 32. BW/IP did not distribute its products without proper and adequate identification labeling.
33. Any asbestos products which may have been sold and/or used by BW/IP were not within the exclusive control of BW/IP. 34. BW/IP 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, BW/IP 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 BW/IP. The BW/IP 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. 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 plaintiffs 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.
47. That to the extent any plaintiff seek 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, BW/IP. 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 Plaintiffs Verified Complaint. In addition, defendant, BW/IP, 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 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 January 13, 2016 Yours, etc. SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. Attorneys for Defendant, BW/IP, Inc. 850 Third Avenue, Suite 1100 (212) 651-7500 By: /s/ Nicole G. Markowitz NICOLE G. MARKOWITZ Esq. To: Weitz & Luxenberg, P.C. 700 Broadway New York, NY 10003
V E R I F I C A T I O N NICOLE G. MARKOWITZ, an attorney duly admitted to practice in the Court of the State of New York and designated as attorney for the defendant BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, hereinafter referred to as BW/IP, 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 she has read the foregoing ANSWER and knows the contents thereof; that the same is true to her own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters she believes them to be true. Affiant further says that the source of her information and the grounds of her 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 her by officers or agents of BW/IP. This Verification is made by affiant and not by defendant because defendant resides outside the County of New York where affiant maintains her office. Dated: New York, New York January 13, 2016 /s/ Nicole G. Markowitz NICOLE G. MARKOWITZ, Esq. SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. Attorneys for Defendant, BW/IP, Inc. 850 Third Avenue, Suite 1100 (212) 651-7500