On August 08, 2019 a
Answer
was filed
involving a dispute between
Beth Micca,
David Micca,
and
Abb Inc As Successor In Interest To Ite Circuit Breakers Inc,
Aerco International, Inc.,
Air & Liquid Systems Corporation, As Successor-By-Merger To Buffalo Pumps, Inc.,
Alray Construction Corp., Individually And As Successor To R.E. Hebert And Company,
Amaco, Llc,
American Art Clay Company, Inc.,
American Biltrite, Inc.,
American Scientific,
Atwood & Morrill Company,
Aurora Pump Company,
Bird Incorporated,
Bmce Inc., F K A United Centrifugal Pump,
Borg-Warner Morse Tec Llc,
Bw Ip., And Its Wholly Owned Subsidiaries, Byron Jackson Pumps,
Carolina Biological Supply Company,
Carrier Corporation,
Cbs Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, F K A Westinghouse Electric Corporation,
Certainteed Corporation,
Chem-Clay Corporation,
Clark Reliance Corporation, Individually And As Successor To Jerguson,
Cleaver Brooks Company, Inc.,
Cooper Crouse-Hinds,
Cooper Industries Inc,
Crane Co.,
Csc Scientific Company, Inc.,
Dezurik, Inc.,
Dick Blick Holdings, Inc.,
Eaton Corporation As Successor In Interest To Cutler-Hammer Inc,
Edward Orton Jr. Ceramics Foundation,
Electrolux Home Products, Inc., Individually And As Successor To Tappan And Copes-Vulcan,
Fisher Scientific Company Llc,
Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Edward Valve, Inc., Nordstrom Valves, Inc., Edward Vogt Valve Company, And Vogt Valve Company,
Fmc Corporation, Individually, And As Successor To Chicago Pump Company, Northern Pump Company,
Fort Kent Holdings, Inc., F K A Dunham-Bush, Inc.,
Foster Wheeler, L.L.C.,
Gardner Denver, Inc.,
General Electric Company,
Gould Electronics Inc,
Goulds Pumps, Inc.,
Grinnell Llc,
Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,
Howden Buffalo, Inc., Individually And As Successor In Interest To Bf Sturtevant, The Howden Buffalo Group, And Buffalo Fan,
Imo Industries, Inc.,
Ingersoll-Rand Company,
Insulation Distributors, Inc.,
International Paper Company,
Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett And Hoffman Specialty,
Jl Hammett Company,
L&L Kiln Mfg. Inc.,
Macalaster Bicknell International Corp,
Macalster Bicknell Company Of New York,
Mader Capital, Inc., Individually And As Successor In Interest To The Mader Corporation And Rochester Acoustical,
Mader Construction Corporation, Individually And As Successor To Rochester Acoustical,
Mader Corporation, Individually And As Successor To Rochester Acoustical,
Mader Plastering Corp.,
Mader Service, Individually And As Successor To Rochester Acoustical,
Manocare Health Services, Inc., D B A Manor Care, Inc., Individually And As Successor In Interest To Precision-Cosmet Company, Inc., Central Scientific Company, A Division Of Cenco Incorporated; Central Scientific Company, A Division Of Cenco Instruments,
Minnesota Mining & Manufacturing Company, A K A 3M Company,
Nash Engineering Company,
Olympic Kilns,
Pacon Corporation,
R.E. Hebert And Company, Inc.,
Riley Power, Inc.,
Rochester Industrial Insulations, Inc.,
Rockwell Automation Inc As Successor By Merger To Allen-Bradley Company Llc,
Schneider Electric Usa Inc Formerly Known As Square D Company,
School Specialty Inc,
Skutt Ceramics Products Inc.,
Spence Engineering Company Inc,
Spense Engineering Company, Inc.,
Spirax Sarco, Inc. Individually And As Successor To Sarco Company,
Strathmore Paper Co,
Strathmore Paper Company,
Superior Lidgerwood Mundy Corp., A K A Lidgerwood Manufacturing Co., Individually And As Successor Into M.T. Davidson Co.,
Tdy Industries, Inc., F K A Teledyne Industries, Inc., Individually, And As Successor To Farris Engineering,
Thomas Scientific, Inc.,
Trane U.S. Inc., F K A American Standard, Inc.,
Triarco Arts & Crafts, Inc.,
Union Carbide Corporation,
Vanderbilt Minerals, Llc,
Velan Valve Corporation,
Vwr International Llc,
Warren Pumps Llc,
William Summerhays' Sons Corporation,
Zurn Industries, Inc., Individually And As Successor In Interest To Erie City Iron Works,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM INDEX NO. E2019007475
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2221490
Book Page CIVIL
Return To: No. Pages: 18
MARK STEPHEN NEMETH
Instrument: MISCELLANEOUS DOCUMENT
Control #: 201909251570
Index #: E2019007475
Date: 09/25/2019
MICCA, DAVID Time: 4:28:56 PM
MICCA, BETH
AERCO INTERNATIONAL, INC.
AIR & LIQUID SYSTEMS CORPORATION, as successor-by-
merger to BUFFALO PUMPS, INC.
ALRAY CONSTRUCTION CORP., Individually and as
Successor to R.E. HEBERT AND COMPANY
AMACO, LLC
AMERICAN ART CLAY COMPANY, INC.
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.
ADAM J BELLO
MONROE COUNTY CLERK
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II
STATE OF NEW YORK
SUPREME COURT: COUNTY OF MONROE
DAVID MICCA and BETH MICCA,
Plaintiffs,
vs. VERIFIED ANSWER
Index No.: E2019/007475
AERCO INTERNATIONAL, INC., et al.
Defendants.
Defendants, ALRAY CONSTRUCTION CORP. f/k/a HEBERT CONSTRUCTION
CORP. improperly sued herein as "Alray Construction, Individually and as Successor to R. E.
Co."
Hebert k and R.E. HEBERT AND COMPANY, INC., by itsattorneys, Feldman Kieffer,
plaintiffs'
LLP, as and for its Answer to complaint, alleges, upon information and belief, as
follows:
1. Denies knowledge or information sufhcient to form a belief as to the truth of the
plaintiffs'
allegations contained in paragraphs 4, 5, 7-53 and 55-71 of the complaint.
plaintiffs'
2. Denies the allegations contained in paragraphs 6 and 54 of the
complaint.
3. As to the allegations contained in paragraphs 109-
1-3, 72-86, 88-102, 104-107,
122, 124-134, 136-149, 151-171, 173-186, 188-207, 209-214, 216-231, 233 and 235 of the
plaintiffs'
complaint, denies those allegations as against this answering defendant, and denies
knowledge or information sufficient to form a belief as to the truth of the remainder of the
allegations.
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4. Defendant repeats and realleges each and every denial as if more fully set forth
herein as to the allegations contained in paragraphs 87, 103, 108, 123, 135, 150, 172, 187, 208,
plaintiffs'
215, 232 and 234 of the complaint.
plaintiffs'
5. Defendant denies each and every other remaining allegation in the
complaint to hereinbefore specifically admitted or otherwise denied.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
6. This answering defendant denies ithas any liability, in law or in fact, to plaintiffs,
and further states that ithas never manufactured asbestos or asbestos-containing products for sale
or otherwise, nor has it sold asbestos or asbestos containing products. This answering defendant
further denies it has any liability, in law or fact, to plaintiffs for its alleged failure to properly
apply, repair and/or remove asbestos, failure to properly advise those in the area that asbestos
was being applied, repaired and/or removed, failure to provide appropriate respiratory equipment
and failure to advise those in the area that they may be exposed to dangerous levels of asbestos.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
7. The complaint, and each and every allegation considered separately, fails to state
a cause of action against this answering defendant upon which relief can be granted.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
8. The court lacks personal jurisdiction over this answering defendant.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
9. This answering defendant has not been properly served with process in this action
and is,therefore, not subject to the jurisdiction of this court.
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
10. All claims are time-barred by the applicable Statute of Limitations.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
11. The causes of action pleaded in the complaint have not been asserted in a timely
fashion and plaintiffs have neglected same and are barred by the doctrine of laches.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
12. Plaintiffs lack the requisite capacity, standing and authority to bring the within
action, as they are not the real parties in interest.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
plaintiffs'
13. The causes of action alleged in complaint may not be maintained
because this answering defendant is a dissolved corporation and does not have legal capacity to
be sued pursuant to Business Corporations Law § 1006.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
14. To the extent that the causes of action pleaded by plaintiffs fail to accord with the
plaintiffs'
Uniform Commercial Code, iñclsding but not limited to Section 2-725 thereof,
complaint is time-barred.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
plaintiffs'
15. This answering defendant denies that the asbestos products alleged in
complaint are products within the meaning and scope of the Restatement of Torts Section 402A,
and as such, the verified complaint failsto state a cause of action in strictliability.
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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
16. In the event that plaintiffs rely on New York Law, L. 1986 C. 682 Section 4 as
grounds for this said section is unconstitutional and this action is time-
maintaining action,
barred.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
Plaintiffs'
17. claims, if any, are preempted by the regulations of the Occupational
Safety and Health Administration and other applicable federal and state laws.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
plaintiffs'
18. While this answering defendant denies the allegations of negligence,
breach of warranty, strict product liability and enterprise liability, any injury and damages, to the
extent that plaintiffs may be able to prove them, were the result of intervening and/or interceding
acts of superseding negligence on the part of parties over whom this answering defendant neither
had control nor had the right to control.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
19. Plaintiffs are estopped from asserting the causes of action alleged in the
complaint.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
20. Plaintiffs have waived the causes of action and recovery alleged in the complaint.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
21. Plaintiffs have failed to name and join essential and necessary parties.
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.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
22. Proceeding in this manner without Johns-Manville, Unarco, Amatex, Pacor,
Forty-Eight Insulations and/or Standard Insulations, W.R. Grace, U.S Minerals, and all other
entities in bankruptcy relating thereto, would be in violation of this answering defendant's
constitutional rights.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
23. The within action cannot be maintained as there is another action pending
between the same or similar parties for the same cause of action in a court of another state or the
United States.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
24. If plaintiffs should prove that the plaintiffs sustained injuries and damages as
alleged, such injuries and damages resulted from acts or omissions on the part of third parties
over whom this answering defendant had no control or right of control.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
25. Plaintiff, his co-workers, and employers misused, abused, mistreated and
misapplied the products designated as asbestos material as alleged in the complaint.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
26. If the court finds that any misuse, abuse, mistreatment and/or misapplication of
the product caused and/or contributed to the alleged damages or injuries to plaintiff, this
answering defendant requests that the amount of damages which might be recoverable shall be
diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication,
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.
attributed to plaintiff, his co-workers and/or employers, bear to the conduct which caused the
alleged damages or injuries.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
27. Insofar as the complaint, and each cause of action considered separately, alleges a
cause of action accruing on or after September 1, 1975 to recover damages for persoñal injuries,
the amount of damages recoverable thereon must be diminished by reason of the culpable
conduct attributable to plaintiff, including contributory negligence and assumption of risk.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
28. Insofar as the complaint, and each cause of action considered separately, alleges a
cause of action accruing before September 1, 1975, each such cause of action is barred by reason
of the culpable conduct attributable to plaintiff, including contributory negligence and
assumption of the risk.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
29. The injuries allegedly suffered by plaintiff, if any (which injuries are specifically
denied by this answering defendant), were the result of culpable conduct or fault of third persons
for whose conduct this answering defendant is not legally responsible, and the damages
recovered by plaintiff, if any, should be diminished or reduced in the proportion to which said
culpable conduct bears upon the culpable conduct which caused the damages. Any liability on
the part of this answering defendant (which liability is specifically denied) is 50 percent or less
of the liability of all of the cause of the alleged injuries, if any, and the liability of this answering
defendant for non-economic loss should not exceed this answering defendant's equitable share
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determined in accordance with the relative culpability of each person causing or contributing to
the total liability for non-economic loss pursuant to CPLR sections 1601 through 1603.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
30. The product allegedly attributed to this answering defendant ("the Product") was
not defective or dangerous at any time when said defendant had possession or control of it.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
Plaintiffs'
31. claims and causes of action are barred, in whole or in part, because the
alleged danger of exposure, to the extent that danger existed at all, was open, obvious and well
known to plaintiff.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
32. Plaintiff contributed to his illness, either in whole or in part, by exposure to or the
use of tobacco products and/or other substmees, products, medications or drugs.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
33. Upon information and belief, plaintiff failed to mitigate or otherwise act to lessen
or reduce the injuries and disabilities alleged in the complaint.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
34. In the event this answering defendant is determined to have engaged in the
application, repair and/or removal of asbestos or asbestos-containing products, at all times during
the conduct of corporate operations, the agents, servants and/or employees of this answeriñg
defendant used proper methods in and/or asbestos or asbestos-
applying, repairing removing
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containing products in confonnity with available knowledge, state of the art and research of the
scientific and industrial communities.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
35. At all times alleged in the complaint, the products alleged to have caused
plaintiffs'
injuries were designed, manufactured, sold, distributed, labeled, advertised, applied,
repaired and/or removed in compliance with the then-existing state of the art in the industry and,
furthermore, that the benefits of any such product design outweighed any risk or danger in the
design, and that any such product met the safety expectations of plaintiff and the general public.
AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
Plaintiffs'
36. claims and causes of action are barred, in whole or in part, because this
answering defendant exercised due care and conducted itself in accord with applicable custom
and practice in the industry and complied with all then-existing federal, state and local statutory
and regulatory requirements.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
37. This answering defendant is informed and believes, and therefore, alleges that
plaintiff is unable to identify the actual manufacturer(s), distributor(s), applicator(s), user(s) of
the asbestos products which allegedly caused the injury which forms the basis of the complaint
herein, and that said manufacturer(s), distributor(s), applicator(s), user(s) were entities other than
this answering defendant. Therefore, this answering defendant may not be held liable for the
plaintiff's injuries.
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AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
38. To the extent that plaintiff was exposed to any product in any way connected to
this answering defendant, which is denied, said exposure was de minimis and not a substantial
contributing factor to any asbestos-related disease which such plaintiff may have developed, thus
requiring dismissal of the verified complaint against this answering defendant.
AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
39. Plaintiff was warned and/or was aware of the risk of exposure to asbestos-
containing products.
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
Plaintiffs'
40. claims for damages have not accrued, and are purely speculative,
uncertain and contingent.
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
41. To the extent that plaintiff was exposed to asbestos-containing products alleged to
have been in any way connected to this answering defendant, which is denied, and to the extent
plaintiffs'
that such alleged products were furnished pursuant to specifications supplied by
employer, The United States Government or other third parties, then any such product was
furnished in strict conformity with such specifications.
AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
42. Plaintiff's employer(s) was, and is,a sophisticated user, and knew independently
or should have known of any danger or hazard associated with the use of a product containing
asbestos and of exposure to asbestos dust or fibers. Furthermore, plaintiff's employer(s) was
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warned and/or was aware of the danger or hazard associated with the use of asbestos-containing
products and that the plaintiff's employer(s) failed to rely upon such warning or awareness
resulting in alleged damages due to plaintiff's and plaintiff's employer's act or omission and
failure to act as sophisticated users.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
43. The causes of action pleaded in the complaint based upon misrepresentation,
fraud, concealment, deceit and /or conspiracy, fail to meet the requirements of §3016(b) of the
New York Civil Practice Law and Rules and therefore fail to state a claim upon which relief can
be granted.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
44. Plaintiff did not directly or indirectly purchase any asbestos-coñtaining products
or materials from this answering defendant, and plaintiff neither received nor relied on any
representation or warranty allegedly made by this answering defendant.
AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
45. As to all causes of action pleaded in the complaint which are based upon express
or implied warranties and/or representations, such causes of action are legally insufficient as
against this answering defendant by reason of their failure to allege privity of contract between
the plaintiff and this answering defendant.
AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
46. In the event that any breach of warranty is proven, plaintiffs failed to give proper
and prompt notice of any such breach of warranty to this answering defendant.
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AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
47. Any oral warranties upon which plaintiffs relied are inadmissible and unavailable
because of the provisions of the applicable Statute of Frauds.
AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
48. In the event that, at the time of the injuries alleged in the complaint, plaintiff was
employed by this answering defendant, then plaintiff's sole and exclusive remedy is under the
Worker's Compensation Law of the State of New York.
AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
49. In the event that, at the time of the injuries alleged in the complaint, plaintiff was
employed by others and was entitled to and did receive worker's compensation benefits from his
employer(s), then, if conditions as alleged in the complaint are found to have existed, plaintiff's
employer(s) was negligent and careless in and about the matters referred to in the complaint and
said negligence on the part of the employer(s) proximately caused or contributed to the injuries
and damages, if any, complained of by plaintiff and, further, plaintiff's employer(s) assilmed the
risk of the injury to the plaintiff, if any, in that at the time and place of the incident such
conditions, if any, were open and apparent and were fully known to the plaintiff's employer(s);
by reason thereof, this answering defendant is entitled to set off any compensation benefits
received or to be received by the plaintiff against any judgment which may be rendered in favor
of plaintiff herein.
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AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
50. Plaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts
or omissions, ifany, of this answering defendant, thus barring plaintiff from any relief as prayed
for herein.
AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
51. The causes of action may not be maintained because of arbitration and award,
collateral estoppel, a discharge in bankruptcy, infancy (or some other disability) of plaintiff,
payment, release and/or res judicata.
AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
52. Plaintiffs have released, settled, entered into an accord and satisfaction, or
otherwise compromised their claims herein, and, accordingly, said claims are barred by operation
of law. Alternatively, plaintiffs have accepted compensation as partial settlement of those claims
for which this answering defendant is entitled to a set-off.
AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF:
53. There was no negligence, gross negligence, willful, wanton, or malicious
misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice
(actual, legal or otherwise) on the part of this answering defendant with respect to plaintiffs.
AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING
DEFENDANT ASSERTS, UPON INFORMATION.AND BELIEF:
Plaintiffs'
54. cause of action for exemplary or punitive damages is barred because
such damages are not recoverable or warranted in this action.
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FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM INDEX NO. E2019007475 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2221490 Book Page CIVIL Return To: No. Pages: 18 MARK STEPHEN NEMETH Instrument: MISCELLANEOUS DOCUMENT Control #: 201909251570 Index #: E2019007475 Date: 09/25/2019 MICCA, DAVID Time: 4:28:56 PM MICCA, BETH AERCO INTERNATIONAL, INC. AIR & LIQUID SYSTEMS CORPORATION, as successor-by- merger to BUFFALO PUMPS, INC. ALRAY CONSTRUCTION CORP., Individually and as Successor to R.E. HEBERT AND COMPANY AMACO, LLC AMERICAN ART CLAY COMPANY, INC. 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. ADAM J BELLO MONROE COUNTY CLERK 1 of 18 Index INDEX E2019007475 ¹:NO. E2019007475 FILED: 201909251570 MONROE COUNTY CLERK 09/25/2019 04:28 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 II STATE OF NEW YORK SUPREME COURT: COUNTY OF MONROE DAVID MICCA and BETH MICCA, Plaintiffs, vs. VERIFIED ANSWER Index No.: E2019/007475 AERCO INTERNATIONAL, INC., et al. Defendants. Defendants, ALRAY CONSTRUCTION CORP. f/k/a HEBERT CONSTRUCTION CORP. improperly sued herein as "Alray Construction, Individually and as Successor to R. E. Co." Hebert k and R.E. HEBERT AND COMPANY, INC., by itsattorneys, Feldman Kieffer, plaintiffs' LLP, as and for its Answer to complaint, alleges, upon information and belief, as follows: 1. Denies knowledge or information sufhcient to form a belief as to the truth of the plaintiffs' allegations contained in paragraphs 4, 5, 7-53 and 55-71 of the complaint. plaintiffs' 2. Denies the allegations contained in paragraphs 6 and 54 of the complaint. 3. As to the allegations contained in paragraphs 109- 1-3, 72-86, 88-102, 104-107, 122, 124-134, 136-149, 151-171, 173-186, 188-207, 209-214, 216-231, 233 and 235 of the plaintiffs' complaint, denies those allegations as against this answering defendant, and denies knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations. 2 of 18 Index INDEX #:E2019007475 NO. E2019007475 201909251570 FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 4. Defendant repeats and realleges each and every denial as if more fully set forth herein as to the allegations contained in paragraphs 87, 103, 108, 123, 135, 150, 172, 187, 208, plaintiffs' 215, 232 and 234 of the complaint. plaintiffs' 5. Defendant denies each and every other remaining allegation in the complaint to hereinbefore specifically admitted or otherwise denied. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 6. This answering defendant denies ithas any liability, in law or in fact, to plaintiffs, and further states that ithas never manufactured asbestos or asbestos-containing products for sale or otherwise, nor has it sold asbestos or asbestos containing products. This answering defendant further denies it has any liability, in law or fact, to plaintiffs for its alleged failure to properly apply, repair and/or remove asbestos, failure to properly advise those in the area that asbestos was being applied, repaired and/or removed, failure to provide appropriate respiratory equipment and failure to advise those in the area that they may be exposed to dangerous levels of asbestos. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 7. The complaint, and each and every allegation considered separately, fails to state a cause of action against this answering defendant upon which relief can be granted. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 8. The court lacks personal jurisdiction over this answering defendant. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 9. This answering defendant has not been properly served with process in this action and is,therefore, not subject to the jurisdiction of this court. 3 of 18 FILED: 201909251570 MONROE COUNTY CLERK 09/25/2019 04:28 PM - - minuu INDEX é.Ciû NO. S 4 T E2019007475 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 10. All claims are time-barred by the applicable Statute of Limitations. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 11. The causes of action pleaded in the complaint have not been asserted in a timely fashion and plaintiffs have neglected same and are barred by the doctrine of laches. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 12. Plaintiffs lack the requisite capacity, standing and authority to bring the within action, as they are not the real parties in interest. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: plaintiffs' 13. The causes of action alleged in complaint may not be maintained because this answering defendant is a dissolved corporation and does not have legal capacity to be sued pursuant to Business Corporations Law § 1006. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 14. To the extent that the causes of action pleaded by plaintiffs fail to accord with the plaintiffs' Uniform Commercial Code, iñclsding but not limited to Section 2-725 thereof, complaint is time-barred. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: plaintiffs' 15. This answering defendant denies that the asbestos products alleged in complaint are products within the meaning and scope of the Restatement of Torts Section 402A, and as such, the verified complaint failsto state a cause of action in strictliability. 4 of 18 FILED: 201909251570 NYSCEF DOC. MONROE - COUNTY NO. 42 - CLERK -- - 09/25/2019 - 04:28 PM RECEIVED Index INDEX #:E2019007475 NO. NYSCEF: E2019007475 09/25/2019 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 16. In the event that plaintiffs rely on New York Law, L. 1986 C. 682 Section 4 as grounds for this said section is unconstitutional and this action is time- maintaining action, barred. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: Plaintiffs' 17. claims, if any, are preempted by the regulations of the Occupational Safety and Health Administration and other applicable federal and state laws. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: plaintiffs' 18. While this answering defendant denies the allegations of negligence, breach of warranty, strict product liability and enterprise liability, any injury and damages, to the extent that plaintiffs may be able to prove them, were the result of intervening and/or interceding acts of superseding negligence on the part of parties over whom this answering defendant neither had control nor had the right to control. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 19. Plaintiffs are estopped from asserting the causes of action alleged in the complaint. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 20. Plaintiffs have waived the causes of action and recovery alleged in the complaint. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 21. Plaintiffs have failed to name and join essential and necessary parties. 5 of 18 Index INDEX #:E2019007475 NO. E2019007475 201909251570 FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 . AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 22. Proceeding in this manner without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight Insulations and/or Standard Insulations, W.R. Grace, U.S Minerals, and all other entities in bankruptcy relating thereto, would be in violation of this answering defendant's constitutional rights. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 23. The within action cannot be maintained as there is another action pending between the same or similar parties for the same cause of action in a court of another state or the United States. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 24. If plaintiffs should prove that the plaintiffs sustained injuries and damages as alleged, such injuries and damages resulted from acts or omissions on the part of third parties over whom this answering defendant had no control or right of control. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 25. Plaintiff, his co-workers, and employers misused, abused, mistreated and misapplied the products designated as asbestos material as alleged in the complaint. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 26. If the court finds that any misuse, abuse, mistreatment and/or misapplication of the product caused and/or contributed to the alleged damages or injuries to plaintiff, this answering defendant requests that the amount of damages which might be recoverable shall be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication, 6 of 18 - - 201909251570 IIIUUA INDEX . NO. ÛE2019007475 IÈÙÛ FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 . attributed to plaintiff, his co-workers and/or employers, bear to the conduct which caused the alleged damages or injuries. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 27. Insofar as the complaint, and each cause of action considered separately, alleges a cause of action accruing on or after September 1, 1975 to recover damages for persoñal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to plaintiff, including contributory negligence and assumption of risk. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 28. Insofar as the complaint, and each cause of action considered separately, alleges a cause of action accruing before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to plaintiff, including contributory negligence and assumption of the risk. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 29. The injuries allegedly suffered by plaintiff, if any (which injuries are specifically denied by this answering defendant), were the result of culpable conduct or fault of third persons for whose conduct this answering defendant is not legally responsible, and the damages recovered by plaintiff, if any, should be diminished or reduced in the proportion to which said culpable conduct bears upon the culpable conduct which caused the damages. Any liability on the part of this answering defendant (which liability is specifically denied) is 50 percent or less of the liability of all of the cause of the alleged injuries, if any, and the liability of this answering defendant for non-economic loss should not exceed this answering defendant's equitable share 7 of 18 -" Index #: E2019007475 201909251570 FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM INDEX NO. E2019007475 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss pursuant to CPLR sections 1601 through 1603. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 30. The product allegedly attributed to this answering defendant ("the Product") was not defective or dangerous at any time when said defendant had possession or control of it. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: Plaintiffs' 31. claims and causes of action are barred, in whole or in part, because the alleged danger of exposure, to the extent that danger existed at all, was open, obvious and well known to plaintiff. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 32. Plaintiff contributed to his illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substmees, products, medications or drugs. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 33. Upon information and belief, plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the complaint. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 34. In the event this answering defendant is determined to have engaged in the application, repair and/or removal of asbestos or asbestos-containing products, at all times during the conduct of corporate operations, the agents, servants and/or employees of this answeriñg defendant used proper methods in and/or asbestos or asbestos- applying, repairing removing 8 of 18 Index #:E2019007475 FILED: 201909251570 MONROE COUNTY CLERK 09/25/2019 04:28 PM INDEX NO. E2019007475 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 containing products in confonnity with available knowledge, state of the art and research of the scientific and industrial communities. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 35. At all times alleged in the complaint, the products alleged to have caused plaintiffs' injuries were designed, manufactured, sold, distributed, labeled, advertised, applied, repaired and/or removed in compliance with the then-existing state of the art in the industry and, furthermore, that the benefits of any such product design outweighed any risk or danger in the design, and that any such product met the safety expectations of plaintiff and the general public. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: Plaintiffs' 36. claims and causes of action are barred, in whole or in part, because this answering defendant exercised due care and conducted itself in accord with applicable custom and practice in the industry and complied with all then-existing federal, state and local statutory and regulatory requirements. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 37. This answering defendant is informed and believes, and therefore, alleges that plaintiff is unable to identify the actual manufacturer(s), distributor(s), applicator(s), user(s) of the asbestos products which allegedly caused the injury which forms the basis of the complaint herein, and that said manufacturer(s), distributor(s), applicator(s), user(s) were entities other than this answering defendant. Therefore, this answering defendant may not be held liable for the plaintiff's injuries. 9 of 18 - 201909251570 FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM hidex INDEX #. NO. I6007475 Elú E2019007475 NYSCEF. DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 . AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 38. To the extent that plaintiff was exposed to any product in any way connected to this answering defendant, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which such plaintiff may have developed, thus requiring dismissal of the verified complaint against this answering defendant. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 39. Plaintiff was warned and/or was aware of the risk of exposure to asbestos- containing products. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: Plaintiffs' 40. claims for damages have not accrued, and are purely speculative, uncertain and contingent. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 41. To the extent that plaintiff was exposed to asbestos-containing products alleged to have been in any way connected to this answering defendant, which is denied, and to the extent plaintiffs' that such alleged products were furnished pursuant to specifications supplied by employer, The United States Government or other third parties, then any such product was furnished in strict conformity with such specifications. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 42. Plaintiff's employer(s) was, and is,a sophisticated user, and knew independently or should have known of any danger or hazard associated with the use of a product containing asbestos and of exposure to asbestos dust or fibers. Furthermore, plaintiff's employer(s) was 10 of 18 INDEXdUA . NO. iÈÛÛ ÅÛE2019007475 201909251570 FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 warned and/or was aware of the danger or hazard associated with the use of asbestos-containing products and that the plaintiff's employer(s) failed to rely upon such warning or awareness resulting in alleged damages due to plaintiff's and plaintiff's employer's act or omission and failure to act as sophisticated users. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 43. The causes of action pleaded in the complaint based upon misrepresentation, fraud, concealment, deceit and /or conspiracy, fail to meet the requirements of §3016(b) of the New York Civil Practice Law and Rules and therefore fail to state a claim upon which relief can be granted. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 44. Plaintiff did not directly or indirectly purchase any asbestos-coñtaining products or materials from this answering defendant, and plaintiff neither received nor relied on any representation or warranty allegedly made by this answering defendant. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 45. As to all causes of action pleaded in the complaint which are based upon express or implied warranties and/or representations, such causes of action are legally insufficient as against this answering defendant by reason of their failure to allege privity of contract between the plaintiff and this answering defendant. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 46. In the event that any breach of warranty is proven, plaintiffs failed to give proper and prompt notice of any such breach of warranty to this answering defendant. 11 of 18 201909251570 FILED: - MONROE - COUNTY CLERK 09/25/2019 04:28 PM Index INDEX 4. NO. 19007475 Eiû E2019007475 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 47. Any oral warranties upon which plaintiffs relied are inadmissible and unavailable because of the provisions of the applicable Statute of Frauds. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 48. In the event that, at the time of the injuries alleged in the complaint, plaintiff was employed by this answering defendant, then plaintiff's sole and exclusive remedy is under the Worker's Compensation Law of the State of New York. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 49. In the event that, at the time of the injuries alleged in the complaint, plaintiff was employed by others and was entitled to and did receive worker's compensation benefits from his employer(s), then, if conditions as alleged in the complaint are found to have existed, plaintiff's employer(s) was negligent and careless in and about the matters referred to in the complaint and said negligence on the part of the employer(s) proximately caused or contributed to the injuries and damages, if any, complained of by plaintiff and, further, plaintiff's employer(s) assilmed the risk of the injury to the plaintiff, if any, in that at the time and place of the incident such conditions, if any, were open and apparent and were fully known to the plaintiff's employer(s); by reason thereof, this answering defendant is entitled to set off any compensation benefits received or to be received by the plaintiff against any judgment which may be rendered in favor of plaintiff herein. 12 of 18 - 201909251570 Index INDEX #: NO.E2019007475 E2019007475 - FILED: MONROE COUNTY CLERK 09/25/2019 04:28 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 09/25/2019 AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 50. Plaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, ifany, of this answering defendant, thus barring plaintiff from any relief as prayed for herein. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 51. The causes of action may not be maintained because of arbitration and award, collateral estoppel, a discharge in bankruptcy, infancy (or some other disability) of plaintiff, payment, release and/or res judicata. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 52. Plaintiffs have released, settled, entered into an accord and satisfaction, or otherwise compromised their claims herein, and, accordingly, said claims are barred by operation of law. Alternatively, plaintiffs have accepted compensation as partial settlement of those claims for which this answering defendant is entitled to a set-off. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION AND BELIEF: 53. There was no negligence, gross negligence, willful, wanton, or malicious misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice (actual, legal or otherwise) on the part of this answering defendant with respect to plaintiffs. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ASSERTS, UPON INFORMATION.AND BELIEF: Plaintiffs' 54. cause of action for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. 13 of 18 Index INDEX #: NO.E2019007475 E2019007475 2019092515