Answer: Pb-66 Doe v. Linda Baumann As Executor of the Estate of Wendy E. Dimet, Linda Baumann As Executor of the Estate of Sylvia Dimet, Niagara Falls City School District

On March 23, 2021 a Answer was filed involving a dispute between Pb-66 Doe, and Linda Baumann As Executor Of The Estate Of Sylvia Dimet, Linda Baumann As Executor Of The Estate Of Wendy E. Dimet, Niagara Falls City School District, for Torts - Child Victims Act in the District Court of Niagara County.

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FILED: NIAGARA COUNTY CLERK 09/20/2021 03:23 PM INDEX NO. E174550/2021
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/20/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NIAGARA
_________________________________________________

PB-66 DOE,

Plaintiff, ANSWER

v. Index No. E174550/2021

LINDA BAUMANN, AS EXECUTOR OF THE
ESTATE OF WENDY E. DIMET;
LINDA BAUMANN, AS EXECUTOR OF THE
ESTATE OF SYLVIA DIMET; and
NIAGARA FALLS CITY SCHOOL DISTRICT,

Defendants.
_________________________________________________

Defendant Linda Baumann, as Executor of the Estate of Sylvia Dimet (the

“Estate”) by her attorneys, Phillips Lytle LLP, answers the Complaint upon information

and belief as follows:

Paragraph 1 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations in paragraph 1.

With respect to paragraph 2, admits that decedent Wendy Dimet was

employed by Niagara Falls City School District, and otherwise denies the allegations

therein.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 3.

With respect to paragraph 4, admits only that decedent Wendy Dimet

was employed by Niagara Falls City School District and otherwise denies the allegations

therein.

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Denies the allegations in paragraph 5.

With respect to paragraph 6, denies that Wendy Dimet committed any

alleged abuse; denies knowledge and information sufficient to form a belief as to the truth of

the allegations concerning Niagara Falls City School District; and otherwise denies the

allegations therein.

Denies the allegations in paragraph 7.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 8.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 9.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 10.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 11.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 12.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 13.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 14.

With respect to paragraph 15, admits that the decedent Wendy Dimet

was employed by the Niagara Falls City School District, and otherwise denies knowledge

and information sufficient to form a belief as to the truth of the allegations therein.

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Admits the allegations in paragraph 16.

Admits the allegations in paragraph 17.

Paragraph 18 sets forth a legal conclusion to which no response is

required.

With regard to paragraph 19, repeats and realleges her prior responses

to paragraphs 1 through 18.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 20.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 21.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 22.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 23.

Denies the allegations in paragraph 24.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 25.

Denies the allegations in paragraph 26.

Denies the allegations in paragraph 27.

Paragraph 28 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Denies the allegations in paragraph 29.

Denies the allegations in paragraph 30.

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Denies the allegations in paragraph 31.

Denies the allegations in paragraph 32.

Denies the allegations in paragraph 33.

Denies the allegations in paragraph 34.

Denies the allegations in paragraph 35.

Paragraph 36 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Paragraph 37 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies knowledge and information sufficient

to form a belief as to the truth of the allegations therein.

Denies the allegations in paragraph 38.

Paragraph 39 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies knowledge and information sufficient

to form a belief as to the truth of the allegations in paragraph 39.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 40.

Denies knowledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 41.

Paragraph 42 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies knowledge and information sufficient

to form a belief as to the truth of the allegations therein.

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Paragraph 43 sets forth legal conclusions to which no response is

required; denies knowledge and information sufficient to form a belief as to the truth of the

allegations therein.

Paragraph 44 sets forth legal conclusions to which no response is

required; denies knowledge and information sufficient to form a belief as to the truth of the

allegations therein.

Paragraph 45 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Denies the allegations in paragraph 46.

Paragraph 47 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Paragraph 48 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

With regard to paragraph 49, repeats and alleges its prior responses to

paragraphs 1 through 48.

Denies the allegations in paragraph 50.

Denies the allegations in paragraph 51.

Denies the allegations in paragraph 52.

Paragraph 53 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Paragraph 54 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

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Paragraph 55 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Paragraph 56 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Paragraph 57 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies knowledge or information sufficient to

form a belief as to the truth of the allegations therein.

Paragraph 58 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Paragraph 59 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Paragraph 60 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

With regard to paragraph 61, repeats and realleges her prior responses

to paragraphs 1 through 60.

With respect to paragraph 62, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 63, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

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With respect to paragraph 64, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 65, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 66, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 67, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 68, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 69, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 70, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 09/20/2021

With respect to paragraph 71, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 72, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 73, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 74, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 75, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 76, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 77, this cause of action was dismissed as to

the Answering Defendant and no response is required; to the extent a response is required,

denies the allegations therein.

With respect to paragraph 78, repeats and realleges her prior responses

to paragraphs 1 through 77.

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With respect to paragraph 79, denies ownership of the 95th Street

School, denies knowledge as to what property Plaintiff intends to identify as the “Dimet

residence,” and otherwise denies the allegations therein.

Denies the allegations in paragraph 80.

Paragraph 81 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Denies the allegations in paragraph 82.

Denies the allegations in paragraph 83.

Denies the allegations in paragraph 84.

With respect to paragraph 85, repeats and realleges her prior responses

to paragraphs 1 through 84.

Paragraph 86 purports to summarize statutes; refers to the cited

statutes as in effect at the relevant time for their complete text and meaning, and otherwise

denies the allegations therein.

Paragraph 87 sets forth legal conclusions to which no response is

required; to the extent a response is required, denies the allegations therein.

Denies the allegations in paragraph 88.

Denies the allegations in paragraph 89.

With respect to paragraph 90, repeats and realleges her prior responses

to paragraphs 1 through 89.

Denies the allegations in paragraph 91.

Denies the allegations in paragraph 92.

Denies the allegations in paragraph 93.

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Denies the allegations in paragraph 94.

With respect to paragraph 95, repeats and realleges her prior responses

to paragraphs 1 through 94.

Denies the allegations in paragraph 96.

Denies the allegations in paragraph 97.

Denies the allegations in paragraph 98.

Denies the allegations in paragraph 99.

With respect to paragraph 100, repeats and realleges her prior

responses to paragraphs 1 through 99.

Denies the allegations in paragraph 101.

Denies the allegations in paragraph 102.

Denies the allegations in paragraph 103.

Denies the allegations in paragraph 104.

Denies the allegations in paragraph 105.

Denies each and every allegation of the Complaint not expressly

admitted herein.

FIRST DEFENSE

The Complaint fails to state a cause of action against the Answering

Defendant.

SECOND DEFENSE

Plaintiff’s action is barred by the applicable statute of limitations or

notice of claim period.

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THIRD DEFENSE

The Child Victims Act (“CVA”) is unconstitutional on its face, or as

applied to the Answering Defendant. In the event that the statute is repealed, abrogated, or

is held to be unconstitutional or otherwise struck down – in whole, in part, or as-applied –

then the Answering Defendant will rely on the applicable statute of limitations, and

Plaintiff’s claims are time-barred.

FOURTH DEFENSE

Plaintiff’s claims are barred due to laches, waiver, and estoppel.

FIFTH DEFENSE

Plaintiff has failed to mitigate his alleged damages and injuries.

SIXTH DEFENSE

That any and all medical expenses incurred by Plaintiff, any and all

claims, lost wages, and any and all economic losses have been and will be paid to Plaintiff

by a collateral source as defined by CPLR Section 4545, and as such, the Estate, as a matter

of law, is not required to indemnify Plaintiff, and consequently, Plaintiff’s claims are

extinguished or diminished.

SEVENTH DEFENSE

If and in the event the Estate is found to be liable to Plaintiff, the

Estate’s liability is limited by Article 14, Article 14-A and/or Article 16 of the CPLR.

EIGHTH DEFENSE

Some or all the injuries complained of by Plaintiff occurred before or

after the incidents complained of; Defendant denies said injuries were caused by the alleged

incidents.

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NINTH DEFENSE

Plaintiff is barred from claiming or recovering any relief set forth in

Plaintiff’s Complaint because Plaintiff has not suffered any harm, damage or loss.

TENTH DEFENSE

Any injuries suffered by Plaintiff were caused by the superseding and

intervening acts, fault, omission, negligence, or other culpable conduct of others over whom

the Answering Defendant had no control, and not from any act, omission, or culpable

conduct on the part of the Answering Defendant.

ELEVENTH DEFENSE

Plaintiff’s demand for punitive damages is barred pursuant to New

York Estates, Powers and Trusts Law § 11-3.2, and has been dismissed by the Court.

TWELFTH DEFENSE

Plaintiff was allegedly harmed by the actions of third parties. The

Answering Defendant had no control over said third parties, and had no notice, either

actual or constructive, of a risk of sexual misconduct by the alleged perpetrator.

THIRTEENTH DEFENSE

The Answering Defendant did not exercise supervision, direction, or

control over the activity or condition alleged to have caused Plaintiff’s injuries, nor was it

required to do so.

FOURTEENTH DEFENSE

Defendant reserves her right to rely upon such other defenses as may

become available or apparent during the course of this litigation and thus reserves the right

to amend this answer to assert such additional defenses.

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FILED: NIAGARA COUNTY CLERK 09/20/2021 03:23 PM INDEX NO. E174550/2021
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CROSS CLAIM

Any damages sustained by the Plaintiff were caused in whole or in part

by the acts or omissions of co-defendant Niagara Falls City School District, who is or may

be liable to the Answering Defendant for contribution on the basis of its equitable share of

fault, or for indemnity on the basis of a contract between them, actual or implied.

WHEREFORE, Defendant Linda Baumann, as Executor of the Estate of

Sylvia Dimet, demands judgment as follows:

Dismissing the Complaint and any and all claims, cross-claims, or causes

of action asserted against the Answering Defendant with prejudice;

In the event that Plaintiff is entitled to recover, any damages awarded to

Plaintiff should be reduced and/or apportioned; and

In the event that Plaintiff is entitled to recover, awarding the Answering

Defendant judgment for contribution and/or indemnification on its cross-claim; and

Costs, disbursements, and attorneys’ fees, and such other and further relief

as the Court deems just and proper.

Dated: Buffalo, New York PHILLIPS LYTLE LLP
September 20, 2021

By: /s/Ryan A. Lema
Amanda L. Lowe
Ryan A. Lema
Mary-Jane R. Morley
Attorneys for Defendant
Linda Baumann, as Executor of the Estate of
Sylvia Dimet
One Canalside
125 Main Street
Buffalo, New York 14203-2887

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Telephone No. (716) 847-8400
alowe@phillipslytle.com
rlema@phillipslytle.com
mmorley@phillipslytle.com

TO: PHILLIPS & PAOLICELLI, LLP
Diane Paolicelli
Yitzchak Fogel
747 Third Avenue, 6th Floor
New York, New York 10027
Telephone No. (212) 388-5100
dpaolicelli@p2law.com
yfogal@p2law.com

FANIZZI & BARR, P.C.
Paul K. Barr, Esq.
2303 Pine Avenue
Niagara Falls, New York 14301
Telephone No. (716) 284-8888
pbarr@fanizziandbarr.com

Attorneys for Plaintiff
PB-66 Doe

NIAGARA FALLS CITY SCHOOL DISTRICT

Doc #9919326

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Case Info

Judge

Mark Grisanti Track Judge’s New Case

Case No.

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Document Filed Date

September 20, 2021

Case Filing Date

March 23, 2021

County

Parties

BARR, PAUL K. Attorney for the Plaintiff
FOGEL, YITZCHAK MEIR Attorney for the Plaintiff
LEMA, RYAN ALBERT Attorney for the Defendant
Linda Baumann As Executor of the Estate of Sylvia Dimet Defendant
Linda Baumann As Executor of the Estate of Wendy E. Dimet Defendant
LOWE, AMANDA LOUISE Attorney for the Defendant
MORLEY, MARY JANE RIVINGTON Attorney for the Defendant
Niagara Falls City School District Defendant
PB-66 DOE Plaintiff
ROSCETTI, JAMES C. Attorney for the Defendant
ANGELO MASSARO Attorneys for Defendants
DIANE PAOLICELLI Attorneys for Plaintiffs

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