Preview
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
NYSCEF - Erie County Supreme Court
Confirmation Notice
The NYSCEF website has received an electronic filing on 01/19/2021 12:02 PM. Please keep this notice
as a confirmation of this filing.
805265/2020
N. J. S. et al v. West Seneca Central School District et al
Assigned Judge: None Recorded
Documents Received on 01/19/2021 12:02 PM
Doc # Document Type
9 THIRD PARTY SUMMONS/COMPLAINT
10 EXHIBIT(S) A
underlying S&C
11 EXHIBIT(S) B
Answer
Filing User
Louis Brian Dingeldey | ldingeldey@bssnylaw.com
182 Dwyer St, West Seneca, NY 14224
E-mail Notifications
An email regarding this filing has been sent to the following on 01/19/2021 12:02 PM:
LOUIS B. DINGELDEY JR. - ldingeldey@bssnylaw.com
JOSEPH L. NICASTRO - joe@buffalolaw.com
Michael P. Kearns, Erie County Clerk
Website: http://www.erie.gov/clerk
NYSCEF Resource Center, nyscef@nycourts.gov
Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile
Page 1 of 2
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
NYSCEF - Erie County Supreme Court
Confirmation Notice
805265/2020
N. J. S. et al v. West Seneca Central School District et al
Assigned Judge: None Recorded
Email Notifications NOT Sent
Role Party Attorney
Third Party CHRYSTLER LEE STORTZ No consent on record.
Respondent
Third Party MICHAEL JAMES STORTZ No consent on record.
Respondent
Third Party BARBARA ANNE STORTZ No consent on record.
Respondent
Third Party HEATHER THIBEAULT aka No consent on record.
Respondent HEATHER A. STORTZ
* Court rules require hard copy service upon non-participating parties and attorneys who have opted-out or declined
consent.
Michael P. Kearns, Erie County Clerk
Website: http://www.erie.gov/clerk
NYSCEF Resource Center, nyscef@nycourts.gov
Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile
Page 2 of 2
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE
----- ---------- ------------------X Our File No. 18011DZSIB
N.J.S, an infant, by and through her
. Parent and Natural Guardian,
MICHELE SARDO, and
MICHELE SARDO, Individually
Plaintiffs, THIRD-PARTY SUMMONS
- vs - Index No.: 805265/2020
WEST SENECA CENTRAL SCHOOL DISTRICT,
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION AND
WEST SENIOR HIGH SCHOOL,
Defendants.
----- ---------------------------------------------------X
WEST SENECA CENTRAL SCHOOL DISTRICT,
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION AND
WEST SENIOR HIGH SCHOOL,
675 Potters Road
West Seneca, New York 14224
Third-Party Plaintiffs
vs
CHRYSTLER LEE STORTZ
24 Barnsdale Avenue
West Seneca, New York 14224,
MICHAEL JAMES STORTZ
24 Barnsdale Avenue
West Seneca, New York 14224,
BARBARA ANNE STORTZ
24 Barnsdale Avenue
West Seneca, New York 14224, and
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
HEATHER THIBEAULT a/k/a HEATHER A. STORTZ,
56 Stenzil Street
North Tonawanda, New York 14120
Third-Party Defendants
___..___...._________..______... ____---
------¬---X
TO THE ABOVE NAMED THIRD-PARTY DEFENDANTS:
YOU ARE HEREBY SUMMONED and required to serve upon the Defendants /
Plaintiffs'
Third-Party attorneys, an Answer to the annexed Third-Party Complaint, which
is herewith served upon you with all relevant pleadings in the action within twenty (20)
days after the service thereof, exclusive of the day of service, or within thirty (30) days
after service is complete ifservice is made by any method other than personal delivery
to you within the State of New York.
In case of your failure to answer, judgment will be taken against you by default
for the relief demanded in the Third-Party Complaint.
Venue is based upon the addresses of all parties named in this litigation.
Dated: West Seneca, New York
January 19, 2021
BAXTER SMITH & SHAPIRO, P.C.
LOUIS B. DINGELDEY J .
Attorneys for Defendants / Third-Party laintiffs
WEST SENECA CENTRAL SCHOOL
DISTRICT, WEST SENECA CENTRAL
SCHOOL DISTRICT BOARD OF EDUCATION
AND WEST SENIOR HIGH SCHOOL
182 Dwyer Street
West Seneca, New York 14224
(716) 854-6140
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
TO: CHRYSTLER LEE STORTZ
24 Barnsdale Avenue
West Seneca, New York 14224,
MICHAEL JAMES STORTZ
24 Barnsdale Avenue
West Seneca, New York 14224,
BARBARA ANNE STORTZ
24 Barnsdale Ave
West Seneca, New York 14224, and
HEATHER THIBEAULT a/k/A HEATHER A. STORTZ
56 Stenzil Street
North Tonawanda, New York 14120
PLEASE GIVE THESE PAPERS TO YOUR INSURANCE COMPANY IMMEDIATELY.
FAILURE TO DO SO MAY RESULT IN LOSS OF YOUR INSURANCE COVERAGE.
CC: Joseph L. Nicastro, Esq.
Cantor Wolff Nicastro & Hall
Attorneys for Plaintiffs
Main Place Tower
350 Main Street, Suite 2140
Buffalo, New York 14202
(716) 848-8000
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE
----------------------------------------------X Our File No. 18011DZSIB
N.J.S, an infant, by and through her
Parent and Natural Guardian,
MICHELE SARDO, and
MICHELE SARDO, Individually
Plaintiffs, THIRD-PARTY COMPLAINT
- vs - Index No.: 805265/2020
WEST SENECA CENTRAL SCHOOL DISTRICT,
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION AND
WEST SENIOR HIGH SCHOOL,
Defendants.
-------------------------------- ----------X
WEST SENECA CENTRAL SCHOOL DISTRICT,
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION AND
WEST SENIOR HIGH SCHOOL,
Third-Party Plaintiffs
vs
CHRYSTLER LEE STORTZ,
MICHAEL JAMES STORTZ,
BARBARA ANNE STORTZ and
HEATHER A. THIBEAULT a/k/a HEATHER A. STORTZ
Third-Party Defendants
------------------ ------------------¬-----
-X
Defendants, WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA
CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
SCHOOL (the latter of which is not a legal entity), by their attorneys, BAXTER SMITH
SHAPIRO, P.C., for its Third-Party Complaint, allege the following upon information and
belief:
1. The Defendants / Third-Party Plaintiffs, WEST SENECA CENTRAL
SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF
EDUCATION AND WEST SENiOR HIGH SCHOOL (hereiñafter "WEST SENECA
CSD") was and still is a public education corporation duly formed and existing pursuant
and subject to the laws of New York State with offices !ocated at 675 Potters Road,
West Seneca, New York, 14224, and is stilldoing and transacting business within the
State of New York.
2. Upon information and at all times hereinafter the Third-
belief, mentioned,
Party Defendant, CHRYSTLER LEE STORTZ, was and still is a resident of the County
of Erie and State of New York.
3. Upon information and at all times hereinafter the Third-
belief, mentioned,
Party Defendant, MICHAEL JAMES STORTZ, was and still is a resident of the County
of Erie and State of New York.
4. Upon information and at all times hereinafter the Third-
belief, mentioned,
Party Defendant, BARBARA ANNE STORTZ, was and stillis a resident of the County of
Erie and State of New York.
5. Upon information and at all times hereinafter the Third-
belief, mentioned,
Party Defendant, HEATHER A. THIBEAULT a/k/a HEATHER A. STORTZ (hereinafter
"HEATHER A, THIBEAULT"), was and stillis a resident of the County of Erie and State
of New York.
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
6. N.J.S, an infant, by and through her Parent and Natural Guardian,
MICHELE SARDO, and MICHELE SARDO, Individually, commenced an action against
WEST SENECA CSD in Supreme Court, Erie County, Index No. 805265/2020, entitled
plaintiffs'
Sardo v West Seneca CSD, et al. A copy of the underlying Summons and
Complaint is attached hereto as Exhibit "A".
7. Defendants / Third-Party Plaintiffs, WEST SENECA CSD, joined issue by
plaintiffs'
service of itsAnswer to the Complaint. A copy of the WEST SENECA CSD's
Answer with affirmative defenses is attached herewith as Exhibit "B".
8. That on May 10, 2019 at approximately 3:00 p.m., the date of the alleged
accident, underlying plaintiff, N.J.S., was allegedly assaulted by Third-Party Defendant,
CHRYSTLER LEE STORTZ, in the basement of West Senior High School located at
3330 Seneca Street, West Seneca, New York, 14224.
9. Upon information and belief, Third-Party Defendant, CHRYSTLER LEE
STORTZ, came into unexpected and unwanted physical contact with the underlying
plaintiff, causing the plaintiff injuries.
10. As a result of that contact, the underlying plaintiff is alleging that she
suffered severe injuries.
11. Upon information and bellef, CHRYSTLER LEE STORTZ, has denied that
the physical contact with the underlying plaintiff was unwelcome or unwanted and that
any such physical contact was mutually agreeable and voluntary.
12. Upon information and belief, the Third-Party Defendant, CHRYSTLER
LEE STORTZ, was reckless, careless and negligent in coming into unexpected and
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
unwanted physical contact with the underlying plaintiff, thereby causing her to suffer
severe injuries.
13. That as a result of the carelessness, recklessness and negligence of
Third-Party Defendant, CHRYSTLER LEE STORTZ, the underlying plaintiff is alleging
that she sustained severe perscñal injuries, was caused to become sick, sore, lame and
disabled, and has been caused considerable pain and suffering, permanency, loss of
enjoyment of lifeand other damages.
14. That if underlying plaintiff was caused to sustain damages at the time and
plaintiffs'
place set forth in Complaint, said damages were because of the negligence,
recklessness and carelessness of the Third-Party Defendant.
15. Any injuries allegedly sustained by the underlying plaintiff were the result
of the negligeñce of the Third-Party Defendant without any liability on the party of the
Defendants / Third-Party Plaintiffs.
16. Upon information and belief, MICHAEL JAMES STORTZ is the biological
father and/or guardIan of CHRYSTLER LEE STORTZ.
17. Upon information and belief, BARBARA ANNE STORTZ is the mother or
stepmother and/or guardian of CHRYSTLER LEE STORTZ.
18. Upon information and belief, HEATHER A. THIBEAULT is the biological
mother and/or guardian of CHRYSTLER LEE STORTZ.
19. Upon information and belief, MICHAEL JAMES STORTZ was responsible
to supervise and control the actions of his then minor son, CHRYSTLER LEE STORTZ.
20. Upon information and belief, BARBARA ANNE STORTZ was responsible
to supervise and control the actions of her then minor son, CHRYSTLER LEE STORTZ.
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NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
21. . Upon information and belief HEATHER A. THIBEAULT was responsible to
supervise and control the actions of her then minor son, CHRYSTLER LEE STORTZ.
22. Upon information and belief, MICHAEL JAMES STORTZ was responsible
to provide reasonable and adequate waming as to any danger, negligence or otherwise,
that his son, CHRYSTLER LEE STORTZ, may pose to the public at large and,
especially, to any students at West Seneca CSD into whose care MICHAEL JAMES
STORTZ placed his son due to his status as a minor and student enrolled in West
Seneca CSD.
23. Upon information and belief, BARBARA ANNE STORTZ was responsible
to provide reasonable and adequate warning as to any danger, negligence or otherwise,
that her son, CHRYSTLER LEE STORTZ, may pose to the public at large and,
especially, to any students at West Seneca CSD into whose care BARBARA ANNE
STORTZ placed her son due to his status as a minor and student enrolled in West
Seneca CSD.
24. Upon information and belief, HEATHER A. THIBEAULT was responsible
to provide reasonable and adequate warning as to any danger, negligence or otherwise,
that her son, CHRYSTLER LEE STORTZ, may pose to the public at large and,
especially, to any students at West Seneca CSD into whose care HEATHER A.
THIBEAULT placed her son due to his status as a minor and student enrolled in West
Seneca CSD.
25. Upon information and belief, MICHAEL JAMES STORTZ was aware
and/or had reasonable notice of prior inappropriate behavior or conduct by his son,
CHRYSTLER LEE STORTZ, which a reasonable person would understand to present a
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future danger to fellow persons and students, especially females, who were in close
personal contact with CHRYSTLER LEE STORTZ.
26. Upon information and belief, BARBARA ANNE STORTZ was aware
and/or had reasonable notice of prior inappropriate behavior or conduct by her son,
CHRYSTLER LEE STORTZ, which a reasonable person would understand to present a
future danger to fellow persons and students, especially females, who were in close
personal contact with CHRYSTLER LEE STORTZ.
27. Upon information and belief, HEATHER A. THIBEAULT was aware and/or
had reasonable notice of prior inappropriate behavior or conduct by her son,
CHRYSTLER LEE STORTZ, which a reasonable person would understand to present a
future danger to fellow persons and students, especia!!y females, who were in close
personal contact with CHRYSTLER LEE STORTZ.
28. Upon information and belief, MICHAEL JAMES STORTZ, was aware of
past iñstances or incidents that would put a reasonable person on notice that the
actions of his son, CHRYSTLER LEE STORTZ, presented a danger to other students,
including minor females.
29. Upon information and belief, BARBARA ANNE STORTZ, was aware of
past instances or incidents that would put a reasonable person on notice that her son,
CHRYSTLER LEE STORTZ, presented a danger to other students, including minor
females.
30. Upon information and belief, HEATHER A. THIBEAULT, was aware of
past instances or incidents that would put a reasonable person on notice that her son,
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CHRYSTLER LEE STORTZ, presented a danger to other students, including minor
females.
31. At no time before the incidents alleged in the underlying Complaint did
MICHAEL JAMES STORTZ warn or otherwise inform Third-Party Plaintiff, WEST
SENECA CSD, or its employees or agents as to any inappropriate or concerning
conduct by his son, CHRYSTLER, that might provide notice to West Seneca CSD that
CHRYSTLER LEE STORTZ presented a danger to fellow students or other persons,
especially females.
32. At no time before the incidents alleged in the underlying Complaint did
BARBARA ANNE STORTZ warn or otherwise inform Third-Party Plaintiff, WEST
SENECA CSD, or its employees or agents as to any inappropriate or conceming
conduct by her son, CHRYSTLER LEE STORTZ, that might provide notice to West
Seneca CSD that CHRYSTLER LEE STORTZ presented a danger to fellow students or
other persons, especially females.
33. At no time before the incidents a!!eged in the underlying Complaint did
HEATHER A. THIBEAULT warn or otherwise inform Third-Party Plaintiff, WEST
SENECA CSD, or its employees or agents as to any inappropriate or concerning
conduct by her son, CHRYSTLER LEE STORTZ, that might provide notice to West
Seneca CSD that CHRYSTLER LEE STORTZ presented a danger to fellow students or
other persons, especially females.
34. Upon information and belief, MICHAEL JAMES STORTZ, obfuscated
and/or withheld knowledge and information within his purview, which would constitute
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
prior notice of his son, CHRYSTLER LEE STORTZ's, propensity for inappropriate
and/or potentially dangerous conduct towards minor females.
35. Upon information and belief, BARBARA ANNE STORTZ, obfuscated
and/or withheld knowledge and information within her purview, which would constitute
prior notice of her son, CHRYSTLER LEE STORTZ's, propensity for inappropriate
and/or potentially dangerous conduct towards minor females.
36. Upon information and belief, HEATHER A. THIBEAULT, obfuscated
and/or withheld knowledge and information within her purview, which would constitute
prior notice of her son, CHRYSTLER LEE STORTZ's, propensity for inappropriate
and/or potentially dangerous conduct towards minor females.
37. Upon information and belief, MICHAEL JAMES STORTZ, failed to provide
information as to any physical or mental health issues involving his son, which would
provide notice and/or waming as to a propensity for inappropriate and/or potentially
dangerous conduct towards minor females, despite his having such information.
38. Upon information and belief, BARBARA ANNE STORTZ, failed to provide
information as to any physical or mental health issues involving her son, which would
provide notice and/or warning as to a propensity for inappropriate and/or potentially
dangerous conduct towards minor females, despite her having such information.
39. Upon information and belief, HEATHER A. TH1BEAULT, failed to provide
information as to any physical or mental health issues involving her son, which would
provide notice and/or warning as to a propensity for inappropriate and/or potentially
dangerous conduct towards minorfemales, despite her having such information.
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40. Upon information and belief, MICHAEL JAMES STORTZ, negligently
failed and/or refused to provide information within his knowledge to the Defendant /
Third-Party Plaintiff regarding prior inappropriate conduct on the part of his son,
CHRYSTLER LEE STORTZ, in his interactions with minor females, despite having been
advised of such information and prior incidents/interactions.
41. Upon information and belief, BARBARA ANNE STORTZ, negligently failed
and/or refused to provide information within her knowledge to the Defendant / Third-
Party Plaintiff regarding prior inappropriate conduct on the part of her son, CHRYSTLER
LEE STORTZ, in his interactions with minor females, despite having been advised of
such information and prior incidents/interactions.
42. Upon information and belief, HEATHER A. THIBEAULT, negligently failed
and/or refused to provide information within her knowledge to the Defendant / Third-
Party Plaintiff regarding prior inappropriate conduct on the part of her son, CHRYSTLER
LEE STORTZ, in his interactions with minor females, despite having been advised of
such information and prior incidents/interactions.
43. Upon information and belief, the failure of MICHAEL JAMES STORTZ to
provide pertinent information in his knowledge with regard to the danger that his son,
CHRYSTLER LEE STORTZ, presented to fellow students or other persons, rasuited in,
caused and/or contributed to the happening of the events, and resulting injuries, alleged
by the underlying plaintiff, N.J.S., in her underlying Complaint.
44. Upon information and belief, the failure of BARBARA ANNE STORTZ to
provide pediment information in her know|edge with regard to the danger that her son,
CHRYSTLER LEE STORTZ, presented to fellow students or other persons, resulted in,
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NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
caused and/or contributed to the happening of the events, and resulting injuries, a!!eged
by the underlying plaintiff, N.J.S., in her underlying Complaint.
45. Upon inforrhation and belief, the failure of HEATHER A. THIBEAULT to
provide pertinent information in her knowledge with regard to the danger that her son,
CHRYSTLER LEE STORTZ, presented to fellow students or other persons, resulted in,
caused and/or contributed to the happening of the events, and resulting injuries, alleged
by the underlying plaintiff, N.J.S., in her underlying Complaint.
AS AND FOR A FIRST CAUSE OF ACTION
46. The Defendants / Third-Party Plaintiffs, WEST SENECA CSD, repeat and
"1" "45"
reallege each and every allegation contained in paragraphs through above as if
fully set forth herein.
47. If the underlying plaintiff, N.J.S., was caused to sustain injuries and
plaintiffs'
damages at the time and place set forth in underlying Complaint, said
damages were the direct result of the ñêgligence, carelessness and/or recklessness of
the Third-Party Defendant, CHRYSTLER LEE STORTZ, without any negligence or
culpability on the part of the Defendant/Third-Party Plaintiff, WEST SENECA CSD,
contributing thereto.
48. Accordingly, Defendant/Third-Party Plaintiff, WEST SENECA CSD, is
entitled to defense, common law indemnity and/or contribution and judgment over and
against Third-Party Defendant, CHRYSTLER LEE STORTZ, for all or part of any verdict
or judgment awarded to the underlying plaintiff, N.J.S., that is attributable to the
negligence or other culpable conduct of the Third-Party Defendant, CHRYSTLER LEE
STORTZ.
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49. If the underlying plaintiff was caused to sustain damages at the time and
plaintiffs'
place set forth in uñderlying Complaint through any carelessness,
plaintiffs'
recklessness and/or negligence other than the underlying own, and/or acts or
omissions by WEST SENECA CSD, and ifany judgment is recovered herein by the
underlying plaintiff against the Defendant/Third-Party Plaintiff, WEST SENECA CSD,
then Defendant/Third-Party Plaintiff, WEST SENECA CSD, will be damaged thereby
and the Third-Party Defendant, CHRYSTLER LEE STORTZ, will be responsible
therefore in whole or in part.
50. If the underlying plaintiff, N.J.S., sustained injuries and damages as
alleged in her Complaint, and if itis determined that WEST SENECA CSD is liable to
the underlying plaintiff, then said liabilitywill have been caused by the negligent or other
culpable conduct of CHRYSTLER LEE STORTZ, and Defendant/Third-Party
Plaintiff, WEST SENECA CSD, will be entitled to defense, common law indemnification
and/or contribution and judgment over and against Third-Party Defendant,
CHRYSTLER LEE STORTZ, for all or part of any verdict or judgment that the underlying
plaintiff recovers against WEST SENECA CSD in addition to legal fees, interest, costs
and expenses in defending the underlying lawsuit.
51. By reason of the foregoing, Third-Party Defendant, CHRYSTLER LEE
STORTZ, will be liable to Defendant/Third-Party Plaintiff, WEST SENECA CSD, as
tortfeasors and inderanitors and by common law for the full amount of any judgment
which may be recovered by underlying plaintiff against Defendant/Third-Party Plaintiff,
WEST SENECA CSD, or for any part thereof, obtained and/or recovered on the
principles of apportionment of responsibility or contribution for the a||êged occurrence as
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NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
found by the Court and/or jury, together with the costs, disbursements, counsel fees and
expenses incurred by the Defendant/Third-Party Plaintiff, WEST SENECA CSD, in
defense of the underlying action.
plaintiffs'
52. If it is shown, as alleged in the underlying Complaint, that the
underlying plaintiff sustained injuries and damages in the manner and at the time and
place alleged therein and if it is found that the Defendant/Third-Party Plaintiff, WEST
SENECA CSD, is liable to said underlying plaintiff, all of which is specifically denied,
Defendant/Third-Party Plaintiff is entitled to common law contribution and/or
indemnification from Third-Party Defendant, CHRYSTLER LEE STORTZ.
53. By reason of the foregoing, the Third-Party Defendant, CHRYSTLER LEE
STORTZ, will be liable to Defendant/Third-Party Plaintiff, WEST SENECA CSD, in the
full amount of any recovery herein by the underlying plaintiff or for that portion thereof
caused by the relative responsibility and culpability of CHRYSTLER LEE STORTZ, and
the Third-Party Defendant, CHRYSTLER LEE STORTZ, is bound to pay for costs and
expenses, including attorney's fees and costs of investigation and disbursements, and
demand for same is made herein by the Third-Party Plaintiff.
AS AND FOR A SECOND CAUSE OF ACTION
54. The Defendants / Third-Party Plaintiffs, WEST SENECA CSD, repeat and
"1" "53"
reallege each and every allegation contained in paragraphs through above as if
fully set forth herein.
55. if the underlying plaintiff, N.J,S., was caused to sustain injuries and
plaintiffs'
damages at the time and place set forth in underlying Complaint, said
damages were the direct result of the negligence, carelessness and/or recklessness of
FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022
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FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 NYSCEF - Erie County Supreme Court Confirmation Notice The NYSCEF website has received an electronic filing on 01/19/2021 12:02 PM. Please keep this notice as a confirmation of this filing. 805265/2020 N. J. S. et al v. West Seneca Central School District et al Assigned Judge: None Recorded Documents Received on 01/19/2021 12:02 PM Doc # Document Type 9 THIRD PARTY SUMMONS/COMPLAINT 10 EXHIBIT(S) A underlying S&C 11 EXHIBIT(S) B Answer Filing User Louis Brian Dingeldey | ldingeldey@bssnylaw.com 182 Dwyer St, West Seneca, NY 14224 E-mail Notifications An email regarding this filing has been sent to the following on 01/19/2021 12:02 PM: LOUIS B. DINGELDEY JR. - ldingeldey@bssnylaw.com JOSEPH L. NICASTRO - joe@buffalolaw.com Michael P. Kearns, Erie County Clerk Website: http://www.erie.gov/clerk NYSCEF Resource Center, nyscef@nycourts.gov Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile Page 1 of 2 FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 NYSCEF - Erie County Supreme Court Confirmation Notice 805265/2020 N. J. S. et al v. West Seneca Central School District et al Assigned Judge: None Recorded Email Notifications NOT Sent Role Party Attorney Third Party CHRYSTLER LEE STORTZ No consent on record. Respondent Third Party MICHAEL JAMES STORTZ No consent on record. Respondent Third Party BARBARA ANNE STORTZ No consent on record. Respondent Third Party HEATHER THIBEAULT aka No consent on record. Respondent HEATHER A. STORTZ * Court rules require hard copy service upon non-participating parties and attorneys who have opted-out or declined consent. Michael P. Kearns, Erie County Clerk Website: http://www.erie.gov/clerk NYSCEF Resource Center, nyscef@nycourts.gov Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile Page 2 of 2 FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE ----- ---------- ------------------X Our File No. 18011DZSIB N.J.S, an infant, by and through her . Parent and Natural Guardian, MICHELE SARDO, and MICHELE SARDO, Individually Plaintiffs, THIRD-PARTY SUMMONS - vs - Index No.: 805265/2020 WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL, Defendants. ----- ---------------------------------------------------X WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL, 675 Potters Road West Seneca, New York 14224 Third-Party Plaintiffs vs CHRYSTLER LEE STORTZ 24 Barnsdale Avenue West Seneca, New York 14224, MICHAEL JAMES STORTZ 24 Barnsdale Avenue West Seneca, New York 14224, BARBARA ANNE STORTZ 24 Barnsdale Avenue West Seneca, New York 14224, and FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 HEATHER THIBEAULT a/k/a HEATHER A. STORTZ, 56 Stenzil Street North Tonawanda, New York 14120 Third-Party Defendants ___..___...._________..______... ____--- ------¬---X TO THE ABOVE NAMED THIRD-PARTY DEFENDANTS: YOU ARE HEREBY SUMMONED and required to serve upon the Defendants / Plaintiffs' Third-Party attorneys, an Answer to the annexed Third-Party Complaint, which is herewith served upon you with all relevant pleadings in the action within twenty (20) days after the service thereof, exclusive of the day of service, or within thirty (30) days after service is complete ifservice is made by any method other than personal delivery to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the Third-Party Complaint. Venue is based upon the addresses of all parties named in this litigation. Dated: West Seneca, New York January 19, 2021 BAXTER SMITH & SHAPIRO, P.C. LOUIS B. DINGELDEY J . Attorneys for Defendants / Third-Party laintiffs WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL 182 Dwyer Street West Seneca, New York 14224 (716) 854-6140 FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 TO: CHRYSTLER LEE STORTZ 24 Barnsdale Avenue West Seneca, New York 14224, MICHAEL JAMES STORTZ 24 Barnsdale Avenue West Seneca, New York 14224, BARBARA ANNE STORTZ 24 Barnsdale Ave West Seneca, New York 14224, and HEATHER THIBEAULT a/k/A HEATHER A. STORTZ 56 Stenzil Street North Tonawanda, New York 14120 PLEASE GIVE THESE PAPERS TO YOUR INSURANCE COMPANY IMMEDIATELY. FAILURE TO DO SO MAY RESULT IN LOSS OF YOUR INSURANCE COVERAGE. CC: Joseph L. Nicastro, Esq. Cantor Wolff Nicastro & Hall Attorneys for Plaintiffs Main Place Tower 350 Main Street, Suite 2140 Buffalo, New York 14202 (716) 848-8000 FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE ----------------------------------------------X Our File No. 18011DZSIB N.J.S, an infant, by and through her Parent and Natural Guardian, MICHELE SARDO, and MICHELE SARDO, Individually Plaintiffs, THIRD-PARTY COMPLAINT - vs - Index No.: 805265/2020 WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL, Defendants. -------------------------------- ----------X WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL, Third-Party Plaintiffs vs CHRYSTLER LEE STORTZ, MICHAEL JAMES STORTZ, BARBARA ANNE STORTZ and HEATHER A. THIBEAULT a/k/a HEATHER A. STORTZ Third-Party Defendants ------------------ ------------------¬----- -X Defendants, WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 SCHOOL (the latter of which is not a legal entity), by their attorneys, BAXTER SMITH SHAPIRO, P.C., for its Third-Party Complaint, allege the following upon information and belief: 1. The Defendants / Third-Party Plaintiffs, WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENiOR HIGH SCHOOL (hereiñafter "WEST SENECA CSD") was and still is a public education corporation duly formed and existing pursuant and subject to the laws of New York State with offices !ocated at 675 Potters Road, West Seneca, New York, 14224, and is stilldoing and transacting business within the State of New York. 2. Upon information and at all times hereinafter the Third- belief, mentioned, Party Defendant, CHRYSTLER LEE STORTZ, was and still is a resident of the County of Erie and State of New York. 3. Upon information and at all times hereinafter the Third- belief, mentioned, Party Defendant, MICHAEL JAMES STORTZ, was and still is a resident of the County of Erie and State of New York. 4. Upon information and at all times hereinafter the Third- belief, mentioned, Party Defendant, BARBARA ANNE STORTZ, was and stillis a resident of the County of Erie and State of New York. 5. Upon information and at all times hereinafter the Third- belief, mentioned, Party Defendant, HEATHER A. THIBEAULT a/k/a HEATHER A. STORTZ (hereinafter "HEATHER A, THIBEAULT"), was and stillis a resident of the County of Erie and State of New York. FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 6. N.J.S, an infant, by and through her Parent and Natural Guardian, MICHELE SARDO, and MICHELE SARDO, Individually, commenced an action against WEST SENECA CSD in Supreme Court, Erie County, Index No. 805265/2020, entitled plaintiffs' Sardo v West Seneca CSD, et al. A copy of the underlying Summons and Complaint is attached hereto as Exhibit "A". 7. Defendants / Third-Party Plaintiffs, WEST SENECA CSD, joined issue by plaintiffs' service of itsAnswer to the Complaint. A copy of the WEST SENECA CSD's Answer with affirmative defenses is attached herewith as Exhibit "B". 8. That on May 10, 2019 at approximately 3:00 p.m., the date of the alleged accident, underlying plaintiff, N.J.S., was allegedly assaulted by Third-Party Defendant, CHRYSTLER LEE STORTZ, in the basement of West Senior High School located at 3330 Seneca Street, West Seneca, New York, 14224. 9. Upon information and belief, Third-Party Defendant, CHRYSTLER LEE STORTZ, came into unexpected and unwanted physical contact with the underlying plaintiff, causing the plaintiff injuries. 10. As a result of that contact, the underlying plaintiff is alleging that she suffered severe injuries. 11. Upon information and bellef, CHRYSTLER LEE STORTZ, has denied that the physical contact with the underlying plaintiff was unwelcome or unwanted and that any such physical contact was mutually agreeable and voluntary. 12. Upon information and belief, the Third-Party Defendant, CHRYSTLER LEE STORTZ, was reckless, careless and negligent in coming into unexpected and FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 unwanted physical contact with the underlying plaintiff, thereby causing her to suffer severe injuries. 13. That as a result of the carelessness, recklessness and negligence of Third-Party Defendant, CHRYSTLER LEE STORTZ, the underlying plaintiff is alleging that she sustained severe perscñal injuries, was caused to become sick, sore, lame and disabled, and has been caused considerable pain and suffering, permanency, loss of enjoyment of lifeand other damages. 14. That if underlying plaintiff was caused to sustain damages at the time and plaintiffs' place set forth in Complaint, said damages were because of the negligence, recklessness and carelessness of the Third-Party Defendant. 15. Any injuries allegedly sustained by the underlying plaintiff were the result of the negligeñce of the Third-Party Defendant without any liability on the party of the Defendants / Third-Party Plaintiffs. 16. Upon information and belief, MICHAEL JAMES STORTZ is the biological father and/or guardIan of CHRYSTLER LEE STORTZ. 17. Upon information and belief, BARBARA ANNE STORTZ is the mother or stepmother and/or guardian of CHRYSTLER LEE STORTZ. 18. Upon information and belief, HEATHER A. THIBEAULT is the biological mother and/or guardian of CHRYSTLER LEE STORTZ. 19. Upon information and belief, MICHAEL JAMES STORTZ was responsible to supervise and control the actions of his then minor son, CHRYSTLER LEE STORTZ. 20. Upon information and belief, BARBARA ANNE STORTZ was responsible to supervise and control the actions of her then minor son, CHRYSTLER LEE STORTZ. FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 21. . Upon information and belief HEATHER A. THIBEAULT was responsible to supervise and control the actions of her then minor son, CHRYSTLER LEE STORTZ. 22. Upon information and belief, MICHAEL JAMES STORTZ was responsible to provide reasonable and adequate waming as to any danger, negligence or otherwise, that his son, CHRYSTLER LEE STORTZ, may pose to the public at large and, especially, to any students at West Seneca CSD into whose care MICHAEL JAMES STORTZ placed his son due to his status as a minor and student enrolled in West Seneca CSD. 23. Upon information and belief, BARBARA ANNE STORTZ was responsible to provide reasonable and adequate warning as to any danger, negligence or otherwise, that her son, CHRYSTLER LEE STORTZ, may pose to the public at large and, especially, to any students at West Seneca CSD into whose care BARBARA ANNE STORTZ placed her son due to his status as a minor and student enrolled in West Seneca CSD. 24. Upon information and belief, HEATHER A. THIBEAULT was responsible to provide reasonable and adequate warning as to any danger, negligence or otherwise, that her son, CHRYSTLER LEE STORTZ, may pose to the public at large and, especially, to any students at West Seneca CSD into whose care HEATHER A. THIBEAULT placed her son due to his status as a minor and student enrolled in West Seneca CSD. 25. Upon information and belief, MICHAEL JAMES STORTZ was aware and/or had reasonable notice of prior inappropriate behavior or conduct by his son, CHRYSTLER LEE STORTZ, which a reasonable person would understand to present a FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 future danger to fellow persons and students, especially females, who were in close personal contact with CHRYSTLER LEE STORTZ. 26. Upon information and belief, BARBARA ANNE STORTZ was aware and/or had reasonable notice of prior inappropriate behavior or conduct by her son, CHRYSTLER LEE STORTZ, which a reasonable person would understand to present a future danger to fellow persons and students, especially females, who were in close personal contact with CHRYSTLER LEE STORTZ. 27. Upon information and belief, HEATHER A. THIBEAULT was aware and/or had reasonable notice of prior inappropriate behavior or conduct by her son, CHRYSTLER LEE STORTZ, which a reasonable person would understand to present a future danger to fellow persons and students, especia!!y females, who were in close personal contact with CHRYSTLER LEE STORTZ. 28. Upon information and belief, MICHAEL JAMES STORTZ, was aware of past iñstances or incidents that would put a reasonable person on notice that the actions of his son, CHRYSTLER LEE STORTZ, presented a danger to other students, including minor females. 29. Upon information and belief, BARBARA ANNE STORTZ, was aware of past instances or incidents that would put a reasonable person on notice that her son, CHRYSTLER LEE STORTZ, presented a danger to other students, including minor females. 30. Upon information and belief, HEATHER A. THIBEAULT, was aware of past instances or incidents that would put a reasonable person on notice that her son, FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 CHRYSTLER LEE STORTZ, presented a danger to other students, including minor females. 31. At no time before the incidents alleged in the underlying Complaint did MICHAEL JAMES STORTZ warn or otherwise inform Third-Party Plaintiff, WEST SENECA CSD, or its employees or agents as to any inappropriate or concerning conduct by his son, CHRYSTLER, that might provide notice to West Seneca CSD that CHRYSTLER LEE STORTZ presented a danger to fellow students or other persons, especially females. 32. At no time before the incidents alleged in the underlying Complaint did BARBARA ANNE STORTZ warn or otherwise inform Third-Party Plaintiff, WEST SENECA CSD, or its employees or agents as to any inappropriate or conceming conduct by her son, CHRYSTLER LEE STORTZ, that might provide notice to West Seneca CSD that CHRYSTLER LEE STORTZ presented a danger to fellow students or other persons, especially females. 33. At no time before the incidents a!!eged in the underlying Complaint did HEATHER A. THIBEAULT warn or otherwise inform Third-Party Plaintiff, WEST SENECA CSD, or its employees or agents as to any inappropriate or concerning conduct by her son, CHRYSTLER LEE STORTZ, that might provide notice to West Seneca CSD that CHRYSTLER LEE STORTZ presented a danger to fellow students or other persons, especially females. 34. Upon information and belief, MICHAEL JAMES STORTZ, obfuscated and/or withheld knowledge and information within his purview, which would constitute FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 prior notice of his son, CHRYSTLER LEE STORTZ's, propensity for inappropriate and/or potentially dangerous conduct towards minor females. 35. Upon information and belief, BARBARA ANNE STORTZ, obfuscated and/or withheld knowledge and information within her purview, which would constitute prior notice of her son, CHRYSTLER LEE STORTZ's, propensity for inappropriate and/or potentially dangerous conduct towards minor females. 36. Upon information and belief, HEATHER A. THIBEAULT, obfuscated and/or withheld knowledge and information within her purview, which would constitute prior notice of her son, CHRYSTLER LEE STORTZ's, propensity for inappropriate and/or potentially dangerous conduct towards minor females. 37. Upon information and belief, MICHAEL JAMES STORTZ, failed to provide information as to any physical or mental health issues involving his son, which would provide notice and/or waming as to a propensity for inappropriate and/or potentially dangerous conduct towards minor females, despite his having such information. 38. Upon information and belief, BARBARA ANNE STORTZ, failed to provide information as to any physical or mental health issues involving her son, which would provide notice and/or warning as to a propensity for inappropriate and/or potentially dangerous conduct towards minor females, despite her having such information. 39. Upon information and belief, HEATHER A. TH1BEAULT, failed to provide information as to any physical or mental health issues involving her son, which would provide notice and/or warning as to a propensity for inappropriate and/or potentially dangerous conduct towards minorfemales, despite her having such information. FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 40. Upon information and belief, MICHAEL JAMES STORTZ, negligently failed and/or refused to provide information within his knowledge to the Defendant / Third-Party Plaintiff regarding prior inappropriate conduct on the part of his son, CHRYSTLER LEE STORTZ, in his interactions with minor females, despite having been advised of such information and prior incidents/interactions. 41. Upon information and belief, BARBARA ANNE STORTZ, negligently failed and/or refused to provide information within her knowledge to the Defendant / Third- Party Plaintiff regarding prior inappropriate conduct on the part of her son, CHRYSTLER LEE STORTZ, in his interactions with minor females, despite having been advised of such information and prior incidents/interactions. 42. Upon information and belief, HEATHER A. THIBEAULT, negligently failed and/or refused to provide information within her knowledge to the Defendant / Third- Party Plaintiff regarding prior inappropriate conduct on the part of her son, CHRYSTLER LEE STORTZ, in his interactions with minor females, despite having been advised of such information and prior incidents/interactions. 43. Upon information and belief, the failure of MICHAEL JAMES STORTZ to provide pertinent information in his knowledge with regard to the danger that his son, CHRYSTLER LEE STORTZ, presented to fellow students or other persons, rasuited in, caused and/or contributed to the happening of the events, and resulting injuries, alleged by the underlying plaintiff, N.J.S., in her underlying Complaint. 44. Upon information and belief, the failure of BARBARA ANNE STORTZ to provide pediment information in her know|edge with regard to the danger that her son, CHRYSTLER LEE STORTZ, presented to fellow students or other persons, resulted in, FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 caused and/or contributed to the happening of the events, and resulting injuries, a!!eged by the underlying plaintiff, N.J.S., in her underlying Complaint. 45. Upon inforrhation and belief, the failure of HEATHER A. THIBEAULT to provide pertinent information in her knowledge with regard to the danger that her son, CHRYSTLER LEE STORTZ, presented to fellow students or other persons, resulted in, caused and/or contributed to the happening of the events, and resulting injuries, alleged by the underlying plaintiff, N.J.S., in her underlying Complaint. AS AND FOR A FIRST CAUSE OF ACTION 46. The Defendants / Third-Party Plaintiffs, WEST SENECA CSD, repeat and "1" "45" reallege each and every allegation contained in paragraphs through above as if fully set forth herein. 47. If the underlying plaintiff, N.J.S., was caused to sustain injuries and plaintiffs' damages at the time and place set forth in underlying Complaint, said damages were the direct result of the ñêgligence, carelessness and/or recklessness of the Third-Party Defendant, CHRYSTLER LEE STORTZ, without any negligence or culpability on the part of the Defendant/Third-Party Plaintiff, WEST SENECA CSD, contributing thereto. 48. Accordingly, Defendant/Third-Party Plaintiff, WEST SENECA CSD, is entitled to defense, common law indemnity and/or contribution and judgment over and against Third-Party Defendant, CHRYSTLER LEE STORTZ, for all or part of any verdict or judgment awarded to the underlying plaintiff, N.J.S., that is attributable to the negligence or other culpable conduct of the Third-Party Defendant, CHRYSTLER LEE STORTZ. FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 49. If the underlying plaintiff was caused to sustain damages at the time and plaintiffs' place set forth in uñderlying Complaint through any carelessness, plaintiffs' recklessness and/or negligence other than the underlying own, and/or acts or omissions by WEST SENECA CSD, and ifany judgment is recovered herein by the underlying plaintiff against the Defendant/Third-Party Plaintiff, WEST SENECA CSD, then Defendant/Third-Party Plaintiff, WEST SENECA CSD, will be damaged thereby and the Third-Party Defendant, CHRYSTLER LEE STORTZ, will be responsible therefore in whole or in part. 50. If the underlying plaintiff, N.J.S., sustained injuries and damages as alleged in her Complaint, and if itis determined that WEST SENECA CSD is liable to the underlying plaintiff, then said liabilitywill have been caused by the negligent or other culpable conduct of CHRYSTLER LEE STORTZ, and Defendant/Third-Party Plaintiff, WEST SENECA CSD, will be entitled to defense, common law indemnification and/or contribution and judgment over and against Third-Party Defendant, CHRYSTLER LEE STORTZ, for all or part of any verdict or judgment that the underlying plaintiff recovers against WEST SENECA CSD in addition to legal fees, interest, costs and expenses in defending the underlying lawsuit. 51. By reason of the foregoing, Third-Party Defendant, CHRYSTLER LEE STORTZ, will be liable to Defendant/Third-Party Plaintiff, WEST SENECA CSD, as tortfeasors and inderanitors and by common law for the full amount of any judgment which may be recovered by underlying plaintiff against Defendant/Third-Party Plaintiff, WEST SENECA CSD, or for any part thereof, obtained and/or recovered on the principles of apportionment of responsibility or contribution for the a||êged occurrence as FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022 found by the Court and/or jury, together with the costs, disbursements, counsel fees and expenses incurred by the Defendant/Third-Party Plaintiff, WEST SENECA CSD, in defense of the underlying action. plaintiffs' 52. If it is shown, as alleged in the underlying Complaint, that the underlying plaintiff sustained injuries and damages in the manner and at the time and place alleged therein and if it is found that the Defendant/Third-Party Plaintiff, WEST SENECA CSD, is liable to said underlying plaintiff, all of which is specifically denied, Defendant/Third-Party Plaintiff is entitled to common law contribution and/or indemnification from Third-Party Defendant, CHRYSTLER LEE STORTZ. 53. By reason of the foregoing, the Third-Party Defendant, CHRYSTLER LEE STORTZ, will be liable to Defendant/Third-Party Plaintiff, WEST SENECA CSD, in the full amount of any recovery herein by the underlying plaintiff or for that portion thereof caused by the relative responsibility and culpability of CHRYSTLER LEE STORTZ, and the Third-Party Defendant, CHRYSTLER LEE STORTZ, is bound to pay for costs and expenses, including attorney's fees and costs of investigation and disbursements, and demand for same is made herein by the Third-Party Plaintiff. AS AND FOR A SECOND CAUSE OF ACTION 54. The Defendants / Third-Party Plaintiffs, WEST SENECA CSD, repeat and "1" "53" reallege each and every allegation contained in paragraphs through above as if fully set forth herein. 55. if the underlying plaintiff, N.J,S., was caused to sustain injuries and plaintiffs' damages at the time and place set forth in underlying Complaint, said damages were the direct result of the negligence, carelessness and/or recklessness of FILED: ERIE COUNTY CLERK 01/18/2022 03:37 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/18/2022