Index No. BENJAMIN FISCHER AND DONA FISCHER …

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Index No.

BENJAMIN FISCHER AND DONA FISCHER SUMMONS AND

Plaintiff, VERIFIED COMPLAINT

-against- Plaintiff designates New York

County as the place of trial

The basis of Venue is defendant’s

place of business and location

of exposure

Plaintiff resides at

Palisades Park, NJ

AMERICAN BILTRITE, INC. )

AMERICAN OPTICAL CORPORATION )

BAYER CROPSCIENCE, INC., Individually )

and as Successor-in-Interest to TEMIK, )

BORG-WARNER MORSE TEC LLC, as )

Successor-By-Merger To BORG-WARNER)

CORPORATION, )

BURNHAM LLC, )

CBS CORPORATION, a DELAWARE CORP., )

f/k/a VIACOM, INC., successor by merger)

to CBS CORP., a PENNSYLVANIA )

CORP., f/k/a WESTINGHOUSE )

ELECTRIC CORPORATION, )

CERTAIN-TEED CORPORATION, )

COOPER INDUSTRIES LLC, )

CRANE COMPANY, )

CROWN CORK & SEAL USA, INC., )

DAP, INC., )

DOMCO PRODUCTS TEXAS, L.P., Individually)

and as Successor-in-Interest AZROCK, )

DOW CHEMICAL COMPANY, )

FOSTER WHEELER CORPORATION, )

GENERAL ELECTRIC COMPANY, )

GEORGIA-PACIFIC LLC, f/k/a GEORGIA )

PACIFIC CORPORATION, )

GOODRICH CORPORATION, f/k/a The B.F. )

Goodrich Company, )

GOODYEAR TIRE & RUBBER CO., )

GOULDS PUMPS (IPG), INC., )

FILED: NEW YORK COUNTY CLERK 09/07/2016 12:03 PM INDEX NO. 190271/2016

NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/07/2016

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HERCULES, INC., )

HONEYWELL INTERNATIONAL, INC., )

INDUSTRIAL HOLDINGS CORPORATION, )

f/k/a CARBORUNDUM COMPANY, )

KAISER-GYPSUM COMPANY, INC., )

3M COMPANY, )

OWENS-ILLINOIS, INC., )

PNEUMO ABEX LLC, successor-in-interest )

to ABEX CORPORATION, )

SAINT-GOBAIN ABRASIVES, INC., )

THE SCOTTS COMPANY, )

THE SHERWIN-WILLIAMS COMPANY, )

Individually and as Successor-in-Interest )

to DUTCH BOY GROUP, )

SID HARVEY INDUSTRIES, INC., )

SPECIAL ELECTRIC COMPANY, INC., )

Individually and successor in interest to )

SPECIAL MATERIALS, INC., SPECIAL)

SHIPPING, INC., and CALAVERAS )

MINE, )

STERLING FLUID SYSTEMS (USA), LLC, f/k/a)

PEERLESS PUMP COMPANY, )

TRANE US, INC., f/k/a AMERICAN )

STANDARD INC., )

UNDER GLASS MFG. CORP., Individually and )

as Successor-in-Interest to LORD & )

BURNHAM, )

UNION CARBIDE CORPORATION, )

UNIROYAL, INC., )

YORK INTERNATIONAL CORPORATION, )

ZURN INDUSTRIES, L.L.C. f/k/a ZURN )

INDUSTRIES, INC., )

and )

METROPOLITAN LIFE INSURANCE CO., )

Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x To the above named Defendants:

YOU ARE HEREBY SUMMONED, to answer the complaint in this action and to serve

a copy of your answer, or, if the complaint is not served with this summons to serve a Notice of

Appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons,

exclusive of the day of service (or within 30 days after the service is complete if this summons is

not personally delivered to you within the State of New York); and in case of your failure to

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appear or answer, judgment will be taken against you by default for the relief demanded in the

complaint.

Date : September 7, 2016

Defendants address:

See attached rider

Gori Julian & Associates, P.C.

Attorneys for the Plaintiffs

360 Lexington Avenue, 20th Floor

New York, NY 10017

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SERVICE RIDER FOR BENJAMIN FISCHER As of 9/7/2016

AMERICAN BILTRITE, INC.

Prentice Hall Corporation

801 Adlai Stevenson Dr.

Springfield, IL 62703

AMERICAN OPTICAL CORPORATION

Jeffrey A. Healy Esq., Tucker Ellis, LLP

950 Main Avenue, Suite 1100

Cleveland, OH 44113

BAYER CROPSCIENCE, INC., Individually and as Successor-in-Interest to TEMIK

CORPORATION SERVICE COMPANY

80 STATE STREET

ALBANY, NEW YORK, 12207-2543

BORG-WARNER CORPORATION by its Successor in Interest BORGWARNER MORSE TEC INC.

Attn: Legal Department

3850 Hamlin Road

Auburn Hills, MI 48326

BURNHAM LLC

P.O. Box 3245

1241 Harrisburg Pike

Lancaster, PA 17604

CBS CORPORATION, a DELAWARE CORP., f/k/a VIACOM, INC., successor by merger to CBS Corp., a

PENNSYLVANIA CORP., f/k/a WESTINGHOUSE ELECTRIC CORPORATION


80 STATE STREET


CERTAIN-TEED CORPORATION

CT Corporation System

208 South LaSalle Street, Suite 814

Chicago, IL 60604

COOPER INDUSTRIES, LLC

20 JUDITH DRIVE

ORCHARD PARK, NEW YORK, 14127

CRANE COMPANY



Chicago, IL 60604

CROWN CORK & SEAL USA, INC.

C T CORPORATION SYSTEM

111 EIGHTH AVENUE

NEW YORK, NEW YORK, 10011

DAP, INC.

2400 Boston Street, Suite 200

Baltimore, MD 21224

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DOW CHEMICAL COMPANY



Chicago, IL 60604

DOMCO PRODUCTS TEXAS, L.P., Individually and as Successor-in-Interest AZROCK


1999 Bryan Street, Suite 900

Dallas, TX 75201

FOSTER WHEELER CORPORATION

53 Frontage Road

PO Box 9000

Hampton, NJ 08827

GENERAL ELECTRIC COMPANY

3135 EASTON TPKE

FAIRFIELD, CONNECTICUT, 06828

GEORGIA-PACIFIC LLC, f/k/a GEORGIA PACIFIC CORPORATION

CT CORPORATION SYSTEM

111 EIGHTH AVENUE


GOODRICH CORPORATION, f/k/a The B.F. Goodrich Company


111 EIGHTH AVENUE


GOODYEAR TIRE & RUBBER CO.

Illinois Corporation Service Co.

801 Adlai Stevenson Drive

Springfield, IL 62704

GOULDS PUMPS (IPG), INC.


111 EIGHTH AVENUE


HERCULES, INC.


111 EIGHTH AVENUE


HONEYWELL INTERNATIONAL INC.

Corporation Service Co. (NY)

80 State Street, 6th Floor

Albany, NY 12207

INDUSTRIAL HOLDINGS CORPORATION, f/k/a CARBORUNDUM COMPANY

THE PRENTICE-HALL CORPORATION SYSTEM INC

80 STATE STREET

ALBANY, NEW YORK, 12207

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KAISER GYPSUM COMPANY, INC.

Corporation Service Company (WA)

300 Deschutes Way, SW Suite304

Tumwater, WA 98501

3M COMPANY

CT CORPORATION SYSTEMS

111 EIGHTH AVENUE

13TH FLOOR


OWENS-ILLINOIS, INC.


111 EIGHTH AVENUE


PNEUMO ABEX LLC, successor-in-interest to ABEX CORPORATION,

Corporation Service Company

2711 Centreville Road, Suite 400

Wilmington, DE 19808

SAINT-GOBAIN ABRASIVES, INC.



Chicago, IL 60604

THE SCOTTS COMPANY


111 EIGHTH AVENUE


THE SHERWIN-WILLIAMS COMPANY, Individually and as Successor-in-Interest to DUTCH BOY GROUP


80 STATE STREET


SID HARVEY INDUSTRIES, INC.



Chicago, IL 60604

SPECIAL ELECTRIC COMPANY, INC., Individually and successor in interest to SPECIAL MATERIALS, INC.,

SPECIAL SHIPPING, INC., and CALAVERAS MINE

CT Corporation

8020 Excelsior Drive, Suite 200

Madison, WI 53717

STERLING FLUID SYSTEMS (USA), LLC, f/k/a PEERLESS PUMP COMPANY,


150 West Market Street, Suite 800

Indianapolis, IN 46204

TRANE U.S., INC., f/k/a AMERICAN STANDARD INC.

The Corporation Trust Company (DE)

Corporation Trust Center 1209 Orange Street

New Castle, DE 19801

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UNDER GLASS MFG. CORP., Individually and as Successor-in-Interest to Lord & BURNHAM,

C. ROBERT CLEMENSON, ESQ.

609 NORTH BROADWAY

UPPER NYACK, NEW YORK, 10960

UNION CARBIDE CORPORATION

CT Corporation System (NY)

111 Eighth Avenue

New York, NY 10011

UNIROYAL, INC.

C/O CDU HOLDING INC LIQUIDATIN

TRUST, 70 GREAT HILL ROAD

NAUGATUCK, CONNECTICUT, 06770

YORK INTERNATIONAL CORPORATION

The Corporation Trust Company (DE)

Corporation Trust Center

1209 Orange Street New Castle, DE 19801

ZURN INDUSTRIES, L.L.C. f/k/a ZURN INDUSTRIES, INC.


111 EIGHTH AVENUE


METROPOLITAN LIFE INSURANCE COMPANY

The Corporation Trust Company

1209 Orange Street

Wilmington, DE 19801

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Index No. BENJAMIN FISCHER AND DONA FISCHER

Plaintiff,

-against-

AMERICAN BILTRITE, INC. )

AMERICAN OPTICAL CORPORATION )

BAYER CROPSCIENCE, INC., Individually )

and as Successor-in-Interest to TEMIK, )

BORG-WARNER MORSE TEC LLC, as )

Successor-By-Merger To BORG-WARNER)

CORPORATION, )

BURNHAM LLC, )

CBS CORPORATION, a DELAWARE CORP., )

f/k/a VIACOM, INC., successor by merger)

to CBS CORP., a PENNSYLVANIA )

CORP., f/k/a WESTINGHOUSE )

ELECTRIC CORPORATION, )

CERTAIN-TEED CORPORATION, )

COOPER INDUSTRIES LLC, )

CRANE COMPANY, )

CROWN CORK & SEAL USA, INC., )

DAP, INC., )

DOMCO PRODUCTS TEXAS, L.P., Individually)

and as Successor-in-Interest AZROCK, )

DOW CHEMICAL COMPANY, )

FOSTER WHEELER CORPORATION, )

GENERAL ELECTRIC COMPANY, )

GEORGIA-PACIFIC LLC, f/k/a GEORGIA )

PACIFIC CORPORATION, )

GOODRICH CORPORATION, f/k/a The B.F. )

Goodrich Company, )

GOODYEAR TIRE & RUBBER CO., )

GOULDS PUMPS (IPG), INC., )

HERCULES, INC., )

HONEYWELL INTERNATIONAL, INC., )

INDUSTRIAL HOLDINGS CORPORATION, )

f/k/a CARBORUNDUM COMPANY, )

KAISER-GYPSUM COMPANY, INC., )

3M COMPANY, )

OWENS-ILLINOIS, INC., )

PNEUMO ABEX LLC, successor-in-interest )

to ABEX CORPORATION, )

SAINT-GOBAIN ABRASIVES, INC., )

VERIFIED

COMPLAINT

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THE SCOTTS COMPANY, )

THE SHERWIN-WILLIAMS COMPANY, )

Individually and as Successor-in-Interest )

to DUTCH BOY GROUP, )

SID HARVEY INDUSTRIES, INC., )

SPECIAL ELECTRIC COMPANY, INC., )

Individually and successor in interest to )

SPECIAL MATERIALS, INC., SPECIAL)

SHIPPING, INC., and CALAVERAS )

MINE, )

STERLING FLUID SYSTEMS (USA), LLC, f/k/a)

PEERLESS PUMP COMPANY, )

TRANE US, INC., f/k/a AMERICAN )

STANDARD INC., )

UNDER GLASS MFG. CORP., Individually and )

as Successor-in-Interest to LORD & )

BURNHAM, )

UNION CARBIDE CORPORATION, )

UNIROYAL, INC., )

YORK INTERNATIONAL CORPORATION, )

ZURN INDUSTRIES, L.L.C. f/k/a ZURN )

INDUSTRIES, INC., )

and )

METROPOLITAN LIFE INSURANCE CO., )

Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

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COMPLAINT

1) Plaintiffs BENJAMIN FISCHER (hereinafter referred to as “plaintiff”) and DONA

FISCHER (hereinafter referred to as “plaintiff/spouse”) are husband and wife.

2) Each of the defendants named in the caption above has conducted business in the City and

State of New York and has produced, manufactured, specified, supplied, installed or distributed

asbestos and/or asbestos products with the reasonable expectation that such products would be

used or consumed in this state, which products were so used or consumed, and/or has committed

the tortious acts set forth below in this state.

3) Each of the defendants named in the caption above has manufactured, specified, supplied,

sold, distributed and/or installed asbestos containing products to which the plaintiff was exposed,

or was a contractor at a location where the plaintiff was exposed to asbestos, or manufactured,

sold and/or installed equipment which had asbestos components or specified such components

for operation, or owned or operated jobsites where asbestos containing products or equipment

were used and where the plaintiff was thereby exposed to asbestos.

4) If is deemed that Article 16 of the CPLR applies to this action, the plaintiff asserts that this

action falls within one or more of the exceptions set forth in CPLR1602 including , but not

limited to, the exception for cases where a person is held liable for causing the claimant’s injury

by having acted with reckless disregard for the safety of others (CPLR 1602(7)); the exception

for cases involving any person held liable for causing claimant’s injury having unlawfully

released into the environment a substance hazardous to public health, safety or the environment

(CPLR 1602(9)); the exception for any parties found to have acted knowingly or intentionally

and in concert to cause the acts or failure upon which liability is based (CPLR 1602(11)); the

exception based upon defendants’ non-delegable duty to warn of the health hazards of asbestos

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(CPLR 2602(2)(iv)); and the exception for persons held liable in a product liability action where

the manufacturer of the product is not a party to the action and jurisdiction over the manufacturer

could not with due diligence be obtained (CPLR 1602(10)).

5) The plaintiff, in the course of plaintiff’s employment, worked with and/or in the vicinity of

asbestos containing products and equipment with asbestos containing components, which

products and components gave off airborne asbestos fibers, which the plaintiff was thereby

forced to inhale. Plaintiff sustained exposure to asbestos in New York and New Jersey including

while working from 1963 to 1980 as a Manager/Grower at Morningside Greenhouses, from 1980

to 2015 as a Manager/Grower at Euro American Farms/Fischer & Page, and from 2013 to 2016

as an Owner/Operator at Specialty Flower Farms, as well as at other times and locations.

Plaintiff sustained further exposure to asbestos while performing home remodeling work on

various residential properties between the 1950s and 1970s.

6) Upon information and belief, the named defendants manufactured, designed, sold, supplied,

distributed, relabeled, commingled, applied and/or installed those asbestos containing products

and/or equipment with asbestos containing components to which the plaintiff was exposed

during plaintiff’s employment.

7) Defendants, acting in concert, failed to warn the plaintiff and those similarly situated, of the

known dangers and hazards of using their asbestos containing products. This concert of action

was achieved by the defendants providing substantial assistance and encouragement to one

another in their wrongful course of conduct, and/or by expressly or impliedly agreeing not to

warn the plaintiff and others similarly situated, of the hazards of said asbestos containing

products.

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8) The inhalation of asbestos fibers is inherently dangerous, in that it proximately causes

mesothelioma, lung cancer, asbestosis, pleural scarring and other severe diseases. Plaintiff,

BENJAMIN FISCHER, was diagnosed with Mesothelioma on February 10, 2016.

FIRST CAUSE OF ACTION

Paragraphs 1 through 8 are incorporated herein as if set forth in full.

9) The employer or employers of the plaintiff, were engaged in various businesses in which

they bought and/or installed asbestos products and materials.

10) The plaintiff, in the course of plaintiff’s employment, worked with and/or in the vicinity of

asbestos containing products and equipment with asbestos containing components, which

products and components gave off airborne asbestos fibers, which the plaintiff was thereby

forced to inhale. Plaintiff sustained exposure to asbestos in New York and New Jersey including

while working from 1963 to 1980 as a Manager/Grower at Morningside Greenhouses, from 1980

to 2015 as a Manager/Grower at Euro American Farms/Fischer & Page, and from 2013 to 2016

as an Owner/Operator at Specialty Flower Farms, as well as at other times and locations.

Plaintiff sustained further exposure to asbestos while performing home remodeling work on

various residential properties between the 1950s and 1970s.

11) During the period of time set forth above, the plaintiff was exposed to and did inhale and/or

ingest asbestos dust, fibers, and particles, which dust, fibers, and particles came from the

asbestos products which were contracted for, mined, milled, processed, manufactured, designed,

tested, assembled, fashioned, fabricated, packaged, supplied, distributed, delivered, marketed

and/or sold by the defendants.

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12) Upon information and belief, the defendants, through their agents and employees, mined,

processed, manufactured, designed, tested and/or packaged various asbestos-containing products,

and supplied, distributed, delivered, marketed and/or sold said asbestos-containing products to

the employer(s) of the plaintiff, or to others working at the various job sites in New York where

the plaintiff was employed, or to third persons who, in turn, delivered and sold such products and

materials to such employers or to others working at such job sites for use by employees,

including the plaintiff.

13) At all relevant times that the plaintiff was working, he was exposed to asbestos materials and

products which, as part of plaintiff’s employment, he was forced to come into contact with and

breathe, inhale, and ingest asbestos fibers and particles coming from said asbestos products and

materials.

14) At all times pertinent hereto, defendants were engaged in the business of contracting for,

mining, milling, processing, manufacturing, designing, testing, assembling, fashioning,

fabricating, packaging, supplying, distributing, delivering, marketing, selling and/or installing

asbestos and asbestos products.

15) At all times pertinent hereto, the asbestos products contracted for, mined, milled, processed,

manufactured, designed, tested, assembled, fashioned, fabricated, packaged, supplied,

distributed, delivered, marketed, sold and/or installed by the defendants reached the plaintiff

without any substantial change in their condition from the time they left the custody and control

of the defendants.

16) The foregoing asbestos products and equipment with asbestos-containing components were

defective in one or more of the following ways:

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a) in that they were inherently dangerous to those who used, handled, came in contact with

and/or inhaled said products and materials;

b) in that they failed to carry proper, adequate and correct warnings and information

concerning the dangers of said products;

c) in that they lacked proper safety precautions to be observed by users, handlers and

persons, including the plaintiff who would reasonably and foreseeably come into contact

with the said products and materials;

d) in that they were packaged, bagged, boxed and/or supplied to the plaintiffs' decedent in

packing, bagging, boxes or other containers that were inadequate and/or improper;

e) in that the products were delivered to and reached the plaintiff without adequate or proper

handling instructions, face masks and/or respirators;

f) in that any warnings, information and/or safety instructions said products may have

carried were improper and inadequate in that they failed to adequately and reasonably

apprise users, handlers and persons coming into contact with the said products and

materials, including the plaintiff, of the full scope and danger to their health of contact

with asbestos products and materials, including the risk of cancer;

g) in that the said asbestos products and materials were not of merchantable quality; and

h) in that the said asbestos products and materials were not fit and safe for their known and

intended purposes and uses.

17) As a result of the above, the plaintiff was caused to sustain permanent injuries caused by

plaintiff’s coming into contact with breathing, inhaling and ingesting asbestos fibers. The

injuries and diseases from which the plaintiff is suffering will continue to cause the plaintiff to

suffer pain and suffering, mental anxiety, distress of mind, emotional trauma and mental anguish.

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18) The disease, diseases or injuries from which the plaintiff suffers were directly and

proximately caused by plaintiff’s exposure to asbestos and asbestos products which were mined,

milled, manufactured, designed, assembled, fabricated, supplied, constructed, processed,

packaged, distributed, delivered, purchased, sold and/or installed by the defendants.

19) As a result thereof, the plaintiff's life span may have been shortened and plaintiff’s capacity

to carry on life's activities has been impaired along with plaintiff’s capacity to enjoy life and

family.

20) As a result of said illness, the plaintiff has been obligated to incur expenses for medical

treatment, x-rays and in the future will be obliged to incur further expenses for such purposes.

21) As a further result of said illness, the plaintiff's earning capacity may be impaired in the

future.

22) The defendants knew or should have known that the asbestos products and materials were

inherently dangerous to those who used, handled or came in contact with said products and

materials.

23) The defendants failed to provide proper, adequate and correct warnings and information

concerning the dangers of the products and materials to persons using, handling, or coming into

contact therewith.

24) The defendants failed to provide proper, adequate and correct warnings and instruction of

safety precautions to be observed by users, handlers and persons, including the plaintiff, who

would reasonably and foreseeably come into contact with the said products and materials.

25) Any warnings, information and/or instruction of safety precautions were improper and

inadequate in that, among other things, they failed to adequately and reasonably apprise users,

handlers and persons coming into contact with the said products and materials, including the

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plaintiff, of the full scope and danger to their health of contact with asbestos products and

materials, including the risk of cancer or mesothelioma.

26) The defendants have been possessed of medical and scientific data, studies and reports before

1929, which information clearly indicated that asbestos and asbestos-containing products were

hazardous to the health and safety of the plaintiff and other human beings.

27) The defendants, during the 1930's, 1940's, 1950's and 1960's became possessed of

voluminous medical and scientific data, studies and reports, which information conclusively

established that asbestos and asbestos-containing products were hazardous to the health and

safety of the plaintiff and all humans exposed to the products. Defendants were members of

organizations like the National Safety Council which widely disseminated information about

asbestos disease to its members, beginning in the 1930's.

28) The defendants have since the 1930's had numerous workers' compensation claims filed

against them in this state and many other states by employees or former employees alleging

asbestos related pneumoconiosis, going back to the 1930's. This State and other states provided

compensation for individuals with asbestos related injuries under workers' compensation laws

beginning in the 1930's.

29) The defendants, since the 1920's, have consistently failed to acknowledge, publish, or in any

way advise plaintiff of studies and reports known throughout the industry, including studies

conducted by or on behalf of various defendants in the asbestos industry.

30) Notwithstanding that the defendants possessed the foregoing information, the defendants

wrongfully contracted for, mined, milled, processed, manufactured, designed, specified, tested,

assembled, fashioned, fabricated, packaged, supplied, distributed, delivered, installed, marketed,

and/or sold asbestos products and materials to the plaintiff, plaintiff’s employer(s) and/or to

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others working at the various job sites and places of employment of the plaintiff and/or the

defendants installed, used and/or applied such products and equipment so as to expose the

plaintiff to asbestos, and said defendants failed to render proper, adequate and correct warnings,

advice, instruction and information and so acted in a grossly negligent, malicious, willful and

wanton manner, and failed to use reasonable care under all circumstances, and wrongfully acted

in other respects.

31) It was the continuing duty of the defendants to advise and warn purchasers, consumers, and

users, and all prior purchasers, consumers, and users, of all dangers, characteristics, potentialities

and/or defects discovered subsequent to their initial marketing or sale of said asbestos and

asbestos products.

32) The defendants breached these duties by:

a) failing to warn the plaintiff of the dangers, characteristics, and/or potentialities of the

product or products when they knew or should have known that the exposure to the

product(s) would cause disease and injury;

b) failing to warn the plaintiff of the dangers to which he was exposed when they knew or

should have known of the dangers;

c) failing to exercise reasonable care to warn the plaintiff of what would be safe, sufficient,

and properly protective clothing, equipment, and appliances when working with, near or

during exposure to asbestos and asbestos products;

d) in that they were packaged, bagged, boxed, and/or supplied to the plaintiff in packaging,

bagging, boxes or other containers that were inadequate and/or improper;

e) in that the products were delivered to and reached the plaintiff without adequate or proper

handling instructions, face masks and/or respirators;

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f) failing to test the asbestos and asbestos products in order to ascertain the extent of

dangers involved upon exposure;

g) failing to conduct such research that should have been conducted in the exercise of

reasonable care in order to ascertain the dangers involved upon exposure;

h) failing to remove the product or products from the market when the defendant

corporations knew or should have known of the hazards of exposure to asbestos and

asbestos products;

i) failing upon discovery of the dangers, hazards, and potentialities of exposure to asbestos

to adequately warn and apprise the plaintiff of the dangers, hazards, and potentialities

discovered; and

j) generally using unreasonable, careless, and negligent conduct in the contracting for,

mining, milling, processing, manufacturing, designing, testing, assembling, fashioning,

fabricating, packaging, supplying, distributing, delivering, marketing, and/or selling of

their asbestos and asbestos products.

33) The acts and omissions set forth above constitute misconduct that is intentional, willful, and

reckless.

34) As a direct and proximate result of the defendant's misconduct hereinbefore set forth, the

plaintiff contracted the diseases and injuries set forth in paragraph 8.

WHEREFORE, the plaintiff claims:

Compensatory damages in the amount of $20,000,000.00;

and Punitive damages in the amount of $20,000,000.00.

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SECOND CAUSE OF ACTION


35) The plaintiff was a foreseeable user and consumer of the defendants' asbestos and asbestos

products.

36) The defendants owed the plaintiff a duty of reasonable care to avoid causing him harm from

exposure to their products.

37) The defendants breached their duty in the numerous and various manner set forth above.

38) The defendants' negligence directly and proximately caused the plaintiff's asbestos disease

and other lawful damages set forth above.




THIRD CAUSE OF ACTION


39) The asbestos containing products hereinbefore described reached the plaintiff in a condition

substantially unchanged from when they left the custody and control of the defendants, and were

used by the plaintiff, and/or his coworkers in the manner intended by the defendants.

40) The defendants are, therefore, strictly liable to the plaintiff in accordance with Section 402A

of the Restatement (Second) of Torts.

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FOURTH CAUSE OF ACTION


41) Plaintiff repeats and reiterates the prior allegations of this complaint as if alleged more fully

below:

42) Defendants, their subsidiaries, agents and/or servants were/are owners, possessors,

lessors, lessees' operator, controllers, managers, supervisors, general contractors,

subcontractors, architects, engineers or were otherwise responsible for the maintenance,

control

And/or safety at the premises on which plaintiff was lawfully frequenting and exposed to

asbestos.

43) Defendants, their subsidiaries, agents and/or servants had a legal duty to maintain and keep

those premises in a safe and proper condition.

44) At all times relevant hereto, plaintiff was lawfully frequenting the premises on which

plaintiff was exposed to asbestos.

45) At all times relevant hereto, plaintiff s presence on the premises on which plaintiff was

exposed to asbestos was known or knowable to the defendants.

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46) Defendants, their subsidiaries, agents, and/or servants negligently created, caused and/or

permitted to exist, an unsafe, hazardous and/or dangerous condition to exit by specifying, using

and/or permitted the presence of asbestos and/or asbestos containing products, equipment

and/or fixtures at the premises on which plaintiff was exposed to asbestos.

47) Defendants, their subsidiaries, agents, and/or servants negligently permitted a defective,

hazardous and/or dangerous condition to remain uncorrected and/or unchanged at the premises

on which the plaintiff was present and exposed to asbestos.

48) Defendants, their subsidiaries, agents, and/or servants knew, or should have known, of

the existence of the unsafe, hazardous and/ or dangerous condition and failed to correct

this dangerous condition.

49) Defendants, their subsidiaries, agents, and/or servants knew, or should have known of

the existence of unsafe, hazardous and/or dangerous condition and failed to warn the plaintiff of

the existence of the dangerous condition and/or provide the plaintiff the means to protect

himself from the dangerous condition

50) Defendants, their subsidiaries, agents, and/or servants were negligent in that they violated

the common law duty to maintain a safe work place for individuals, such as plaintiff, who

were working in, lawfully frequenting and exposed to asbestos on premises owned,

maintained and/or controlled by them.

51) Defendants, their subsidiaries, agents, and/or servants violated New York Labor law section

200 et seq: including, but not limited to, section 200 and 241 (6) and the New York Industrial

Code 12NYCR section 12 and 23 by their failure to provide a safe workplace, including, but not

limited to, 23-1.7(g); and 12 NYCRR 12, under the pass through provisions of 23-1.7(g),

including but not limited to, 12-1.4(b)(3)(4), 12-1.5(b), 12-1.5(c), 12-1.6(a), 12-1.6(c), 12-

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1.9(a), 12-1.9(b)(1)(5), 12-1.9(b)(1)(6), 12-1.10, 12-2.5, and 12-2.7 by its failure to provide a

safe workplace, including but not limited to, failure to make reasonable inspection to detect

dangerous conditions and hidden defects and to warn of dangers of which it knew or should

have known, and by its failure to provide reasonable and adequate protection for individuals,

such as Plaintiff, who was lawfully at a construction site owned, maintained, and/or controlled

by it. Inter alia:

(a) Defendants, their subsidiaries, agents, and/or servants violated the New York State

Industrial Code Section 12, and 14, which states that:

I. All operators or processes which produce air contaminants shall be so conducted

that the generation, release or dissemination of such contaminants is kept at

the lowest practicable level in compliance with this Part (rule). Using proper

control of protective procedure and equipment.

a. Every employer shall effect compliance with the provision of this Part (rule) relating

to the prevention and removal of air contaminants, the storage and use of flammable

liquids and the provision, installation, operation and maintenance of control or

protective equipment.

II. Every employer shall instruct his employees as to the hazards of their work,

the use of the protective equipment and their responsibility for complying

with Provision of this Part (rule).

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III. No employee shall suffer or permit an employee to work in a room in which

there exist dangerous air contaminants in a work atmosphere.

IV. No employee shall suffer or permit dangerous air contaminants to

accumulate remain in any place or area subject to the provision of this

Part (rule)

a) Defendants, their subsidiaries, agents, and/or servants violated New York State

Industrial Code Section 12, and 15, which states that:

b) Personal respiratory equipment shall not be used in lieu of other control methods,

except for protection of employees' emergencies and in the repair, maintenance or

adjustment or equipment or processes, or upon specific approval by the board.

c) Defendants, their subsidiaries, agents, and/or servants violated New York States

Industrial Code Section 12, subsection 1.9 (formerly section 12.9) which states that:

d) One or more of the following methods shall be used to prevent, remove or control

dangerous air contaminants:

e) Substitution of a material of a method which does not produce dangerous air

contaminants.

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f) Local exhaust ventilation conforming on the requirements of lndustrial Code Part

(Rule No.) 18.

g) Dilution Ventilation.

h) Application of water or other wetting agent.

i) Other methods approved by the board.

j) As evidence of defendants' their subsidiaries', agents' and/or servants violation of the

abovementioned section of the New York Stated Industrial Code, defendants, their

subsidiaries, agents, and/or servants permitted asbestos dust concentrations above

the 5mppcf threshold limit value specified in section 12, subsection 3.1, without

providing the requires reasonable and adequate protective measures, thereby

rendering the premises unsafe.

k) Defendants, their subsidiaries, agents, and/or servants violated section 23 3(d) of the

New York Industrial Code which state that:

l) Provision shall be made at every demolition site control the amount of airborne dust

resulting from demolition by wetting the debris and other materials with the

appropriate spraying agents or other m e a n s .

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52) That by reason of the foregoing, plaintiff was injured.

53) That the aforementioned injury was caused solely by reason of the careless, negligence,

wanton and willful disregard by defendants without any negligence on the part of the plaintiffs

contributing thereto.

54) That this action falls within one or more exceptions set forth in CPLR 1602.

55) Pursuant to CPLR 1602(2)(iv), defendants are jointly and severally liable for all of

plaintiffs’ damages, including, but not limited to, plaintiffs’ non-economic loss, irrespective of

the provisions of CPLR 1601, by reason off the fact that it owed plaintiffs a non-delegable duty

of care.

56) Pursuant to CPLR 1602(2)(iv), defendants are jointly and severally liable for All of

plaintiffs’ damages, including, but not limited to, plaintiffs’ non-economic loss, irrespective of

the provisions of CPLR 1601, by reason off the fact that it is vicariously liable for the negligent

acts and omissions of others who caused or contributed to plaintiffs’ damages.

57) That at all times herein mentioned, defendant, its subsidiaries, agents, servants, permittees,

contractors, and/or employees failed to maintain the construction site and the work, labor, and

services performed thereat in a reasonably safe, suitable and adequate condition and repair.


contractors, and/or employees failed to provide for the safety, protection, and well-being of

persons lawfully working upon the construction site, in violation of the Labor Law of the State

of New York.


contractors, and/or employees failed to provide and/or ensure the use of reasonably safe,

suitable and adequate safety equipment, safeguards, apparatus, and/or instrumentalities for use

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in conjunction with the work and the work, labor and or/services which was being performed at

the construction site.

60) Defendants, their subsidiaries, agents, and/or servants negligently designed and/or specified

the use of asbestos containing products, equipment and/ or fixtures at the premises on which

plaintiff was lawfully frequenting and exposed to asbestos.

61) Defendants, their subsidiaries, agents, and/or servants negligently breached their contractual

duty to the plaintiff, third party beneficiary, to provide for the health, welfare and/ or safety of

those, such as plaintiff, lawfully frequenting the premises on which plaintiff was exposed to

asbestos.

62) Defendants, their subsidiaries, agents, and/or servants, breached their warranty to provide

for the health, welfare, and/or safety of those such as plaintiff, lawfully frequenting the

premises on which plaintiff was exposed to asbestos.

63) Defendants, their subsidiaries, agents, and/or servants breached the duty imposed on

possessors of land, contractors and subcontractors and codified in the restatement of the law,

Second, Torts, including, but not limited to, section 342, 410, 411, 412, 413, 414, 414A,

416, 422 and 427.

64) These acts and/ or omissions of the defendants constitute willful misconduct and conscience

disregard of the health of the public, including the p l a i n t i f f .

65) As a direct and proximate result of the defendant’s conduct plaintiff was exposed to

asbestos and asbestos containing products and sustained serious injuries and described above.

66) Plaintiff was seriously injured.

67) Plaintiff further alleges that the defendants, their subsidiaries, agents, and/or servants

violated the New York State Industrial Code 23 1.7 (g) and its predecessor, which states:

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"Air-contaminated or oxygen deficient work areas. The atmosphere of any unventilated

confined area including but not limited to a sewer, pit, tank or chimney where dangerous air

contaminants may be present or where there may not be sufficient oxygen to support life

shall be tested by the employer, his authorized agent or by a designated person before any

person is suffered or permitted to work in such area. Such testing shall be in accordance with

the provisions of Industrial Code Part (rule) 12 relating to the "Control of Contaminants" and

such areas shall be subject to the other pertinent provisions of Industrial Code Part (rule) 12

and of Industrial Code Part (rule) 18 relating to "Exhaust Systems11

WHEREFORE, the Plaintiff claims:

Compensatory damages in the amount of $20,000,000.00; and

Punitive damages in the amount of $20,000,000.00.

FIFTH CAUSE OF ACTION



below:

69) The term “contractor(s)” refers to any business entity, concern, individual, or other engaged,

employed or otherwise contracted to perform in whole or any part there of construction work,

renovation, excavation, demolition, installation of equipment and/or such other activities

commensurate with the term “contractor” as used in the ordinary course of business.

70) These Defendant contractor(s) individually and by and/or through their subcontractors,

agents, servants, assigns and employees developed, authored, devised and/or implemented

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specifications and plans relating to the construction, renovation, excavation, and/or demolition of

buildings and other structures at which the Plaintiff was present and which Defendant

contractor(s) knew, or should have reasonably ascertained in the exercise of due care, involved

the use, application, installation, and/or removal of asbestos, asbestos-containing materials

and/or equipment calling for the use and/or installation of asbestos-containing materials.

71) These Defendant contractor(s), knew, or in the exercise of reasonable diligence should have

known, that the above specifications and/or plans were dangerous and/or unsafe and presented a

potential and/or actual health hazard to those individuals present at such sites where construction,

renovation, excavation and/or demolition as above described was being carried out, including

this Plaintiff.

72) These Defendant contractor(s) hired, employed, contracted with or otherwise engaged

subcontractors and others to carry out the work required by and in accordance with the above-

described specifications and plans.

73) These Defendant contractor(s) supervised, oversaw and directed the activities, conduct and

work of the both their own employees as well as the employees, agents and assigns of its

subcontractors in the performance and carrying out of the above described specifications and

plans at various locations including the Plaintiffs' work site(s).

74) Additionally, Defendant contractor(s) purchased and/or delivered and/or caused to be

delivered to Plaintiff's work site(s), and other locations and subsequently inventoried and/or

warehoused at Plaintiff's work site(s) various asbestos-containing materials and/or machinery

and equipment calling for the use of and/or installation of asbestos-containing materials.

75) Defendant contractor(s) exercised control over the work sites at which their employees,

subcontractors, agents and assigns were engaged in carrying out the specifications and plans

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of construction, renovation, excavation and/or demolition as described above, retained unlimited

access to these work sites and directed all related construction, remodeling, excavating and

demolition activities concerned therewith.

76) Plaintiff was exposed to asbestos-containing products at various work sites and other

locations within the State of New York where construction, renovation, excavation and

demolition of buildings and/or other structures was being performed, while Plaintiff was

engaged in his/her occupational duties and responsibilities or while Plaintiff was otherwise

lawfully upon at such work sites and locations.

77) Plaintiff sustained asbestos-related personal injuries as a consequence of his/her exposure to

asbestos, asbestos-containing products and machinery at such locations described above.

78) Plaintiff s injuries resulted from Defendant contractor(s)' breach of common law and

statutory obligations including, inter alia, violations of The New York State Labor Law Sections

200, 240 and 241 as a consequence of Plaintiff s exposure to and inhalation of dust from asbestos

and asbestos-containing products delivered to, installed, used or employed at those work sites

owned, operated, directed and controlled by the Defendant contractor (s).

79) The above-described exposures were caused solely and wholly by the acts and /or omissions

of the Defendant contractor(s), their agents, servants, employees and assigns as a consequence of

their negligent, careless and reckless ownership, management, direction and control of the

various premises and work sites where construction, renovation, demolition and excavation

activities, as above described, occurred.

80) Defendant contractor(s) were negligent, careless and reckless in inter alia: (1) permitting

Plaintiff to work under dangerous and unsafe conditions; (2) requiring the Plaintiff to work in

areas in which he/she was exposed to asbestos products; (3) in permitting and allowing the

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dangerous conditions to remain in working areas and other locations; (4) in failing to warn

the Plaintiff and other members of the work force of the dangerous conditions; (5) in failing to

provide a safe place to work; (5) in failing to follow or implement the usual workplace safety

customs and procedures; (6) in failing to abide by, inter alia, Sections 200, 240 and 241 of the

Labor Law; and (7) in otherwise acting without due regard for, and in reckless disregard of, the

safety, well-being and health of the Plaintiff and the work force in general.

81) Defendant contractor(s) are strictly liable for the injuries sustained by the Plaintiff.




SIXTH CAUSE OF ACTION



below:

83) Plaintiff, was exposed to asbestos-containing products, materials and machines and

equipment calling for the use of and/or installation of asbestos-containing products while

working at certain facilities owned by certain named Defendants (hereinafter "Premises

Owners").

84) Each Premises Owner, at all times relevant to this Complaint, has been either the operator

and/or the manager and/or the owner and occupier of various facilities within the State of

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New York as more fully specified in individual pleadings.

85) Plaintiff was exposed to asbestos and asbestos-containing materials while he/she was an

invitee at such Defendant Premises Owners' New York State facility or facilities during all

relevant time periods. Said facilities were defective in that the asbestos and asbestos-containing

materials in Defendants' facilities created an unreasonable risk of harm to the Plaintiff and other

persons thereupon. The defective conditions of the facilities were a proximate cause of the

Plaintiffs asbestos-related injuries and d a m a g e s .

86) Said Premises Owners are liable to Plaintiff for their respective failure to exercise

reasonable care to protect Plaintiff from the foreseeable dangers associated with exposure to

asbestos.

87) Defendants Premises Owners as the premises operators and/or managers and/or owners and

occupiers and/or custodians of their respective premises, had a non-delegable duty to keep the

premises safe for invitees and others such as the Plaintiff herein.

88) Said Defendant Premises Owners knew or should have known of the unreasonable risk of

harm inherent in exposure to asbestos and asbestos-containing materials but failed to protect

Plaintiff from said risk of h a rm .

89) Defendant Premises Owners' failure to protect Plaintiff from known and/or foreseeable

dangers constitutes negligence which such negligence is/was a proximate cause of Plaintiffs

asbestos-related injuries and damages.

90) By reason of the foregoing Plaintiff has sustained grievous personal and physical injuries,

physical and emotional pain and suffering, all as more fully described herein and has been

damaged as against each Defendant.

91) Each Manufacturer Defendant corporation or its predecessor-in-interest, is, or at times

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material hereto, has been engaged in the mining, processing and/or manufacturing, sale and

distribution of asbestos or asbestos-containing products, or machinery requiring or calling

for the use of asbestos or asbestos-containing products.

92) Plaintiff would show that or a period of many years, they worked with and/or were

exposed to asbestos-containing products and or machinery requiring or calling for the

use of asbestos or asbestos-containing products while working in various shipyards, steel

mills, refineries, paper mills, chemical plants and/or other facilities in the United States.

Plaintiff will show that they have been exposed, on numerous occasions, to asbestos-

containing products and/or machinery requiring or calling for the use of asbestos or

asbestos-containing products and/or sold by Manufacturer Defendants and, in so doing,

have inhaled great quantities of asbestos fibers. Further Plaintiff alleges, as more

specifically set out below, that they have suffered injuries proximately caused by their

exposure to asbestos-containing products designed, manufactured and sold by

Manufacturer Defe nda n ts .

93) Plaintiff alleges that Plaintiff was exposed to asbestos, asbestos-containing products, or

machinery requiring or calling for the use of asbestos or asbestos-containing products in

his occupation. In that each exposure to such products caused or contributed to Plaintiffs

injuries, Plaintiff invokes the doctrine of joint and several liability and states that it should

be applied to each Defendant herein.

94) This cause of action is governed by Substantive Law of Admiralty and is, therefore,

non-removable.


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SEVENTH CAUSE OF ACTION

The plaintiff, DONA FISCHER spouse of the plaintiff, BENJAMIN FISCHER hereby realleges

and incorporates by reference to paragraphs 1 through 94 as if realleged and set forth in full.

95) As a direct and proximate result of the foregoing acts of the defendants, the plaintiff/spouse,

DONA FISCHER, has suffered and will continue to suffer great pain and mental anguish by

virtue of her loss of impairment of her husband’s services, protection, care and assistance,

society, companionship, affection, love, comfort, support, guidance and kindly offices and

advice, and other benefits of the marital relationship.


Compensatory damages in the amount of $5,000,000.00.

WHEREFORE, Plaintiffs demand judgment against the defendants in the First Cause of Action

in the sum of Twenty Million ($20,000,000.00) Dollars in Compensatory Damages and Twenty

Million ($20,000,000.00) Dollars in Punitive Damages; in the Second Cause of Action in the

sum of Twenty Million ($20,000,000.00) Dollars in Compensatory Damages and Twenty Million

($20,000,000.00) Dollars in Punitive Damages; in the Third Cause of Action in the sum of

Twenty Million ($20,000,000.00) Dollars in Compensatory Damages and Twenty Million

($20,000,000.00) Dollars in Punitive Damages; in the Fourth Cause of Action in the sum of

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Twenty Million ($20,000,000.00) in Compensatory Damages and Twenty Million

($20,000,000.00) in Punitive Damages; in the Fifth Cause of Action in the sum of Twenty

Million ($20,000,000.00) in Compensatory Damages and Twenty Million ($20,000,000.00) in

Punitive Damages; in the Sixth Cause of Action in the sum of Twenty Million ($20,000,000.00)

in Compensatory Damages and Twenty Million ($20,000,000.00) in Punitive Damages; and in

the Seventh Cause of Action in the sum of Five Million ($5,000,000.00) in Compensatory

Damages.

Dated at New York, New York, this _7__ day of September, 2016

Yours, etc.

GORI, JULIAN & ASSOCIATES, P.C.,

By: /s/Michael J. Jarosz

Michael J. Jarosz, #5185996

Attorneys for Plaintiffs

360 Lexington Avenue, 20th

Floor

New York, NY 10017

Phone: (646)609-8020

Fax: (646)609-8019

[email protected]

&

By: /s/ Randy L. Gori

Randy L. Gori, #6257394

Barry Julian #06229519

Attorneys for Plaintiff

156 N. Main St.

Edwardsville, IL 62025

Phone: (618) 659-9833

Fax: (618) 659-9834

[email protected]

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ATTORNEY'S VERIFICATION

The undersigned, an attorney admitted to practice in the Courts of the State of New York, shows

that:

Affirmant is associated with the attorney of record for plaintiff in the within action; Affirmant

has read the foregoing VERIFIED COMPLAINT and knows the contents thereof to be true to

Affirmant's own knowledge, except as to the matters therein stated to be alleged on information

and belief, and that as to those matters, Affirmant believes those matters to be true.

The grounds of Affirmant's belief as to all matters not stated upon his knowledge are based upon

information contained in the file maintained in Affirmant's office.

This verification is made by Affirmant and not by the plaintiff because the plaintiffs reside

outside the county wherein Affirmant maintains his office.

The undersigned affirms that the foregoing statements are true under the penalties of perjury.

___/s/Michael J. Jarosz __

Michael J. Jarosz, Esq.

Dated: September 7, 2016

_/s/Michael J. Jarosz __

Michael J. Jarosz, Esq.

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THIS IS AN ASBESTOS MATTER

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SUPREME COURT OF THE STATE OF NEW

YORK COUNTY OF NEW YORK

---------------------------------------------------------------x

Index No.

IN RE NEW YORK CITY

ASBESTOS LITIGATION

---------------------------------------------------------------x

This Document Relates To:

BENJAMIN FISCHER AND DONA FISCHER

v. AMERICAN BILTRITE, INC., et al

---------------------------------------------------------------x

PLAINTIFF’S INITIAL FACT

SHEET

For each claimant or deceased claimant, please answer each of the following

questions:

1. Full Name: Benjamin Fischer

2. Date of Birth: 11/09/1941

3. Address: 540 Lincoln Street Palisades Park, NJ

4. Date of Death: N/A

5. Social Security Number: To be provided

6. Date of claimant’s claimed asbestos exposure: See attached

7. Smoking History:

For all cigarettes, pipes, cigars, please state the inclusive dates of claimant’s smoking

history, the products smoked and the amount of products consumed per day:

To be provided

8. At this preliminary stage of the proceedings, please provide as much of the following

information as is presently available: worksites, inclusive dates, and trade or

occupation for each site. (Each worksite should be identified as specifically as

possible, i.e. ships worked on in a given shipyard):

See attached

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9. Claimed asbestos-related disease, including date of diagnosis and name of diagnosing

physician or institution if known (an attached medical report would be helpful but is

optional)

Mesothelioma, February 10, 2016

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Documents

Index No. BENJAMIN FISCHER AND DONA FISCHER …