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FILED: FRANKLIN COUNTY CLERK 10/28/2021 02:41 PM INDEX NO. E2021-552
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/28/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF FRANKLIN
___
AUSTIN POTTER,
Plaintiff,
-against-
Index No.: EF2021-552
FRANKLIN COUNTY, FRANKLIN COUNTY
DEPARTMENT OF SOCIAL SERVICES, YOUTH
ADVOCACY PROGRAMS a/k/a YOUTH
ADVOCACY PROGRAMS, INC. a/k/a YOUTH
ADVOCACY PROGRAM OF FRANKLIN
COUNTY, and MICHELLE A. MILLER a/k/a
MICHELLE A. DUQUETTE,
Defendants.
STATEMENT OF MATERIAL UNDISPUTED FACTS IN SUPPORT OF
DEFENDANT YOUTH ADVOCACY PROGRAMS a/k/a YOUTH ADVOCACY
PROGRAMS, INC. a/k/a YOUTH ADVOCACY PROGRAM OF
FRANKLIN COUNTY'S MOTION FOR SUMMARY JUDGMENT
Defendant Youth Advocate Programs, Inc. (identified by plaintiff as Youth Advocacy
Programs a/k/a Youth Advocacy Programs, Inc. a/k/a Youth Advocacy Program of Franklin
County) (YAP) submits the following statement of material facts in accordance with Uniform
Rules for Trial Courts (22 NYCRR) § 202.8-g (a) that defendant contends there is no genuine
issue to be tried:
1. Plaintiff alleged that, pursuant to the Child Victims Act, that while he participated
in the YAP program between 2011-2012, he was sexually assaulted abused, forcibly touched, or
had sexual contact with defendant Miller who was an agent, servant, or employee of either the
(A0629179.1}
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FILED: FRANKLIN COUNTY CLERK 10/28/2021 02:41 PM INDEX NO. E2021-552
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/28/2021
Franklin the Franklin Department of Social or YAP (exhibit A 8-
County, County Services, ¶¶
43).
2. Plaintiff alleged that YAP knew, reasonably should have known, knowingly
condoned, or covered up the inappropriate and unlawful sexual activities of defendant Miller (id
¶ 50).
3. Plaintiff alleged negligence, negligent hiring, supervision, retention, or direction,
breach of statutory duty to report abuse under Social Services Law §§ 413 and 420, and premises
liability (id ¶¶ 83-190).
4. Richard Stottlemyer II, the Chief Financial Officer of YAP, having reviewed
electronic billing records, and paper records from the Franklin County Office, found absolutely
no indication that "plaintiff was ever a YAP client or ever received services from YAP during
otherwise"
the time alleged or (Stottlemyer IIaff ¶¶ 3-4).
5. Moreover, he found that YAP hired defendant Miller on April 24, 2013 as an
advocate, several months after plaintiff alleged any sexual misconduct on the part of defendant
Miller (id ¶ 5 ; see exhibit A ¶¶ 8-43; exhibit C at 1, 6).
6. Prior to hiring defendant Miller in 2013, YAP conducted a background check,
which included personal and professional references (exhibit E).
7. None of the personal or professional references made any notes of inappropriate
behavior on the part of defendant Miller in any way, much less inappropriate sexual contact with
children (see id).
8. The background check came back with no indication of criminal activity, much
less inappropriate sexual contact with children (id).
(AO629179.1}2
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9. Furthermore, the sex offender registry check came back negative as well (exhibit
F).
10. At the time plaintiff alleges that he was sexually abused by defendant Miller,
defendant Miller was working as a server at Pizza Hut (Stottlemyer II aff ¶ 6;see exhibit D).
Dated: October 28, 2021
Albany, New York Respectfully submitted,
STEVEN V. DEBRACCIO, ESQ.
{AO629179.113
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FILED: FRANKLIN COUNTY CLERK 10/28/2021 02:41 PM INDEX NO. E2021-552 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/28/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF FRANKLIN ___ AUSTIN POTTER, Plaintiff, -against- Index No.: EF2021-552 FRANKLIN COUNTY, FRANKLIN COUNTY DEPARTMENT OF SOCIAL SERVICES, YOUTH ADVOCACY PROGRAMS a/k/a YOUTH ADVOCACY PROGRAMS, INC. a/k/a YOUTH ADVOCACY PROGRAM OF FRANKLIN COUNTY, and MICHELLE A. MILLER a/k/a MICHELLE A. DUQUETTE, Defendants. STATEMENT OF MATERIAL UNDISPUTED FACTS IN SUPPORT OF DEFENDANT YOUTH ADVOCACY PROGRAMS a/k/a YOUTH ADVOCACY PROGRAMS, INC. a/k/a YOUTH ADVOCACY PROGRAM OF FRANKLIN COUNTY'S MOTION FOR SUMMARY JUDGMENT Defendant Youth Advocate Programs, Inc. (identified by plaintiff as Youth Advocacy Programs a/k/a Youth Advocacy Programs, Inc. a/k/a Youth Advocacy Program of Franklin County) (YAP) submits the following statement of material facts in accordance with Uniform Rules for Trial Courts (22 NYCRR) § 202.8-g (a) that defendant contends there is no genuine issue to be tried: 1. Plaintiff alleged that, pursuant to the Child Victims Act, that while he participated in the YAP program between 2011-2012, he was sexually assaulted abused, forcibly touched, or had sexual contact with defendant Miller who was an agent, servant, or employee of either the (A0629179.1} 1 of 3 FILED: FRANKLIN COUNTY CLERK 10/28/2021 02:41 PM INDEX NO. E2021-552 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/28/2021 Franklin the Franklin Department of Social or YAP (exhibit A 8- County, County Services, ¶¶ 43). 2. Plaintiff alleged that YAP knew, reasonably should have known, knowingly condoned, or covered up the inappropriate and unlawful sexual activities of defendant Miller (id ¶ 50). 3. Plaintiff alleged negligence, negligent hiring, supervision, retention, or direction, breach of statutory duty to report abuse under Social Services Law §§ 413 and 420, and premises liability (id ¶¶ 83-190). 4. Richard Stottlemyer II, the Chief Financial Officer of YAP, having reviewed electronic billing records, and paper records from the Franklin County Office, found absolutely no indication that "plaintiff was ever a YAP client or ever received services from YAP during otherwise" the time alleged or (Stottlemyer IIaff ¶¶ 3-4). 5. Moreover, he found that YAP hired defendant Miller on April 24, 2013 as an advocate, several months after plaintiff alleged any sexual misconduct on the part of defendant Miller (id ¶ 5 ; see exhibit A ¶¶ 8-43; exhibit C at 1, 6). 6. Prior to hiring defendant Miller in 2013, YAP conducted a background check, which included personal and professional references (exhibit E). 7. None of the personal or professional references made any notes of inappropriate behavior on the part of defendant Miller in any way, much less inappropriate sexual contact with children (see id). 8. The background check came back with no indication of criminal activity, much less inappropriate sexual contact with children (id). (AO629179.1}2 2 of 3 FILED: FRANKLIN COUNTY CLERK 10/28/2021 02:41 PM INDEX NO. E2021-552 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/28/2021 9. Furthermore, the sex offender registry check came back negative as well (exhibit F). 10. At the time plaintiff alleges that he was sexually abused by defendant Miller, defendant Miller was working as a server at Pizza Hut (Stottlemyer II aff ¶ 6;see exhibit D). Dated: October 28, 2021 Albany, New York Respectfully submitted, STEVEN V. DEBRACCIO, ESQ. {AO629179.113 3 of 3