Preview
FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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JANE DOE - 19240,
Index No : 2021-51440
Plaintiff,
-against- VERIFIED ANSWER
WITH CROSS-CLAIMS
THE CHILDREN’S HOME OF POUGHKEEPSIE
and COUNTY OF DUTCHESS,
Defendants.
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The defendant COUNTY OF DUTCHESS by its attorneys, MORRIS DUFFY ALONSO
& FALEY, upon information and belief, answers the plaintiff’s Complaint herein as follows:
1. Admit each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated: “8,” “9,” and “11.”
2. Deny any knowledge or information sufficient to form a belief as to the truth of the
allegations contained in the paragraphs or subdivisions of the Complaint designated: “1,” “2,” “4,”
“5,” “6,” “7,” “15,” “18,” “19,” “20,” “21,”
3. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “3,” “12,” “16,” “17,” “22,” “24,” “25” and “26” and respectfully refers all
questions of law to this honorable court.
4. Deny any knowledge or information thereof sufficient to form a belief as to the
truth of the allegations contained in the paragraph or subdivision of the Complaint designated “10,”
“13,” “14,” and “23” and respectfully refers all questions of law to this honorable court.
ANSWERING THE FIRST CAUSE OF ACTION
5. As to the paragraph of the Complaint designated “27”, answering defendants repeat,
reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through
“26” inclusive, with the same force and effect as if fully set forth at length herein.
6. Admit each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated: “28.”
7. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “32,” “33”, “34,” “35,” “36,” “37,” “40,” “41,” “42,” “43,” “44”,”45,” “46,”
“47,” “48,” “49,” “50,” “51,” “52,” “53,” “54,” “55,” “56,” “57,” “58” and “59.”
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8. Deny any knowledge or information sufficient to form a belief as to the truth of the
allegations contained in the paragraphs or subdivisions of the Complaint designated: “30” and
“31.”
9. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “29” and “30” and respectfully refers all questions of law to this honorable
court
10. Deny any knowledge or information thereof sufficient to form a belief as to the
truth of the allegations contained in the paragraph or subdivision of the Complaint designated “38”
and “39” and respectfully refers all questions of law to this honorable court.
ANSWERING THE SECOND CAUSE OF ACTION
11. As to the paragraph of the Complaint designated “60”, answering defendants repeat,
reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through
“59” inclusive, with the same force and effect as if fully set forth at length herein.
12. Deny any knowledge or information sufficient to form a belief as to the truth of the
allegations contained in the paragraphs or subdivisions of the Complaint designated: “61,” “62,”
“63,” “64,” “65,” “66,” “67,” “68,” “69,” “70,” “71,” “72,” “73,” “74,” “75,” “76,” “77,” “78,”
“79,” “80,” “81,” “82,” “83,” “84,” “85,” “86,” “87,” “88,” “89,” “90” and “91.”
13. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “92” and respectfully refers all questions of law to this honorable court
ANSWERING THE THIRD CAUSE OF ACTION
14. As to the paragraph of the Complaint designated “93”, answering defendants repeat,
reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through
“92” inclusive, with the same force and effect as if fully set forth at length herein.
15. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated: “94,” “95,” “97,” “98,” “99,” “100,” “101,” “102,” “103,” “104,” “105,”
“106,” “107,” “108,” “109,” “110,” “111,” “112,” “113,” and “114.”
16. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “96” and respectfully refers all questions of law to this honorable court.
ANSWERING THE FOURTH CAUSE OF ACTION
17. As to the paragraph of the Complaint designated “1115”, answering defendants
repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1”
through “114” inclusive, with the same force and effect as if fully set forth at length herein.
18. Deny any knowledge or information sufficient to form a belief as to the truth of the
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allegations contained in the paragraphs or subdivisions of the Complaint designated: “115,” “116,”
“117,” “118,” “119,” and “120.”
19. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “121” and respectfully refers all questions of law to this honorable court.
ANSWERING THE FIFTH CAUSE OF ACTION
20. As to the paragraph of the Complaint designated “122”, answering defendants
repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1”
through “121” inclusive, with the same force and effect as if fully set forth at length herein.
21. Deny any knowledge or information sufficient to form a belief as to the truth of the
allegations contained in the paragraphs or subdivisions of the Complaint designated: “123,” “124,”
“125,” “126,” “127,” “128,” “129,” “130,” “131,” and “132.”
22. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated: “133.”
23. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “134” and respectfully refers all questions of law to this honorable court.
ANSWERING THE SIXTH CAUSE OF ACTION
24. As to the paragraph of the Complaint designated “135”, answering defendants
repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1”
through “134” inclusive, with the same force and effect as if fully set forth at length herein.
25. Deny any knowledge or information sufficient to form a belief as to the truth of the
allegations contained in the paragraphs or subdivisions of the Complaint designated: “136,” “137,”
“138,” “139,” “140,” “141,” “142,” and “143.”
26. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “144” and respectfully refers all questions of law to this honorable court.
ANSWERING THE SEVENTH CAUSE OF ACTION
27. As to the paragraph of the Complaint designated “145”, answering defendants
repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1”
through “144” inclusive, with the same force and effect as if fully set forth at length herein.
28. Deny each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “146” and “147.”
ANSWERING DAMAGES
29. Deny each and every allegation contained in the paragraphs or subdivisions of the
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Complaint designated “148”, “149,” and “150.”
AFFIRMATIVE AND OTHER DEFENSES
In further response to Plaintiff's Complaint, the Defendant hereinafter hereby asserts the
following affirmative and other defenses, without conceding that it bears the burden of persuasion
as to any of them except those deemed affirmative defenses by law, regardless of how such
defenses are denominated herein. Nor does the Defendants admit that Plaintiff is relieved of their
burden to prove each and every element of their claims and the damages, if any, to which they
claim to be entitled. As for its defenses, the Defendant reasserts and reincorporates as if fully set
forth herein its responses, above, to the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
The Court lacks Personal Jurisdiction over the answering defendants.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
The answering defendant pleads and reserves the right to claim the limitations of liability
pursuant to Article 16 of the CPLR, for any recovery herein by Plaintiff for any non-economic
loss.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Upon information and belief, some or all of Plaintiff's damages are barred and/or subject
to CPLR 4545.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
The answering defendant is entitled to a reduction in damages for any amount plaintiff has
received as collateral source payment as defined and applied by the Civil Practice Law and Rules.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
The Complaint herein, and each cause of action thereof, fails to set forth facts sufficient to
state a claim upon which relief may be granted against the answering defendant and further fails
to state facts sufficient to entitle Plaintiff to the relief sought, or to any other relief whatsoever
from the answering defendant.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
The Complaint herein, and each cause of action thereof, fails to set forth facts sufficiently
detailed as to “give the court and parties notice of the transactions, occurrences, or series of
transactions or occurrences, intended to be proved and the material elements of each cause of
action or defense.” See CPLR 3013.
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AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Upon information and belief, the occurrence alleged in the Verified Complaint herein, if
proven true, was unfortunate, unforeseeable, and could not have been prevented by these
answering defendants.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
The servants, agents and/or employees of the answering defendant did not take part in or
direct the acts complained of.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
If the plaintiff was abused in the manner alleged, such abuse was not caused or due to the
acts or omissions of the answering defendant, its agent, servants and/or employees.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
It is alleged in the Complaint that the damages sustained by the plaintiff was the result of
the acts of the defendants. Answering defendant denies such acts occurred but in the event, it is
determined that such acts did occur and were undertaken by an employee of the defendant then the
defendants alleges that such acts were outside the scope of the authority and employment of the
defendants and performed for a purpose foreign to any employment with this answering defendant,
and were not ratified or consented to by the answering defendant.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
It is alleged in the Complaint that the damages sustained by the plaintiff was the result of
the acts of the defendants. The answering defendant denies such acts occurred but in the event, it
is determined that such acts did occur and were undertaken by an employee of the defendant, then
the defendants alleges that it did not have any notice or awareness of any propensity on the part of
any employee to commit such acts as alleged in the Complaint.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
The Complaint, to the extent that it seeks exemplary or punitive damages, violates this
answering defendant, the defendants’ right to procedural due process under the Fourteenth
Amendment of the United States Constitution, and the Constitution of the State of New York, and
therefore fails to state a cause of action upon which either punitive or exemplary damages can be
awarded.
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AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
The Complaint, to the extent that it seeks punitive or exemplary damages, violates these
answering defendants, the Defendants’ right to protection from “excessive fines” as provided in
the Eighth Amendment of the United States Constitution and the Constitution of the State of New
York and violates these answering defendant’s right to substantive due process as provided in the
Fifth and Fourteenth Amendments of the United States Constitution of the State of New York, and
therefore fails to state a cause of action supporting the punitive or exemplary damages claimed.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
These answering defendant is informed and believes that the Complaint, and each cause of
action therein, is barred by reason of Article VI of the United States Constitution.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
In the event that a court determines that the passage and enactment of CPLR § 214-g
violates the Due Process rights of this answering defendants, pursuant to the Fourteenth
Amendment of the United States Constitution and Article 1, § 6 of the New York State Constitution
and/or freedom of religion protections pursuant to the First Amendment of the United States
Constitution, these answering defendants will seek dismissal of this action.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
In the event that a settlement occurs, all of the provisions of General Obligations Law 15-
108 are applicable.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
In the event the answering defendants are liable, and Plaintiff has provable damages,
Plaintiff failed to mitigate such damages when Plaintiff had an opportunity to do so.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
The allegations in the Complaint refer to acts and/or omissions of county officials which
involve the exercised use of discretion. As such, the County cannot be found liable.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
The answering defendant is entitled to qualified immunity
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
The answering defendant does not owe a specific duty of care to the plaintiff.
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AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
At all times relevant herein, the answering defendant has acted in complete conformity
with generally recognized and prevailing standards.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
At all times relevant herein, the answering defendant has complied with all relevant laws,
regulations, and applicable standards and customs.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
Upon information and belief, the New York Child Victims Act is unconstitutional and, as
such, plaintiff’s Complaint must be dismissed as a matter of law.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
These answering defendants reserves the right to amend and supplement its affirmative and
other defenses to include additional defenses at such time and to such extent as warranted by
discovery and the factual developments in this case.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FIRST CROSS CLAIM AGAINST
CO-DEFENDANT, ANSWERING DEFENDANT
ALLEGES:
If plaintiff was caused to sustain injuries and damages at the time and place set forth in
plaintiff's Complaint through any carelessness, recklessness and negligence other than plaintiff's
own, those damages arose in whole or in part from the acts of co-defendant, and if any judgment
is recovered herein by plaintiff against answering defendant, then this defendant will be damaged
thereby and will be entitled to apportionment or indemnification, in whole or in part, on the basis
of proportionate responsibility or obligation to indemnify of co-defendant.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A SECOND CROSS CLAIM AGAINST
CO-DEFENDANT, ANSWERING DEFENDANT
ALLEGES:
If the plaintiff was caused to sustain injuries and damages at the time and in the manner set
forth in her Complaint through any carelessness, recklessness or negligence other than that of
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plaintiff's own, which is expressly denied, such injuries and damages will have been caused,
brought about and sustained solely by reason of the active, primary and affirmative negligence,
carelessness and wrongdoing of the co-defendant, by their agents, servants and/or employees,
without any negligence on the part of the answering defendant contributing thereto, or if there be
any negligence on the part of the answering defendant, the same was merely passive and secondary
in nature.
That by reason of the foregoing, if the recovers any judgment against the answering
defendant, then this defendant is entitled to be fully indemnified by the co-defendant in a like
amount, together with the costs, disbursements, expenses and attorneys' fees of the defense of this
action by reason of the active and primary negligence of the co-defendant.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A THIRD CROSS CLAIM AGAINST
CO-DEFENDANT, ANSWERING DEFENDANT
ALLEGES:
If plaintiff sustained damages as alleged in the Complaint through any fault other than the
plaintiff's own fault, then such damages were sustained due to the sole fault of the co-defendant,
and if plaintiff should obtain and/or recover judgment against the answering defendant, then the
co-defendant shall be liable pursuant to common law for the full indemnification of the answering
defendant.
In view of the foregoing, the answering defendant is entitled to complete common law
indemnification for all loss, damage, cost or expense, including, without limitation, judgments,
attorneys' fees, Court costs and the cost of appellate proceedings from the co-defendant.
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AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FOURTH CROSS CLAIM AGAINST
CO-DEFENDANT, ANSWERING DEFENDANT
ALLEGES:
1. That pursuant to the contracts and/or agreements, upon information and belief, the
co-defendant undertook certain duties and obligations.
2. If the plaintiff sustained injuries and damages as alleged in the Complaint, they
were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms
and conditions emanating therefrom, including warranties contained therein and/or implied
therefrom by operation of law or otherwise.
3. If the plaintiff was caused to sustain the injuries as set forth in plaintiff's Complaint,
through any carelessness, recklessness and/or negligence or other culpable conduct other than that
of the plaintiff, said injuries and damages were caused by breach of and/or in furtherance of and
as a result of the activities pursuant to the aforesaid contracts and/or agreements and/or the terms
and conditions emanating therefrom, including breach of warranties, stated and/or implied, by
operation of law or otherwise, by the co-defendant, their agents, servants and/or employees and if
any judgment is recovered herein against the answering defendant, they will be damaged thereby
and the co-defendant are or will be primarily responsible therefore and the answering defendant
will be entitled to contribution and/or indemnification, in whole or in part, from the culpable parties
named in this claim over for their portion of plaintiff's damages which were caused by the culpable
parties named in this claim over, together with all attorneys' fees, costs and disbursements.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FIFTH CROSS CLAIM AGAINST
CO-DEFENDANT, ANSWERING DEFENDANT
ALLEGES:
1. That pursuant to contracts and/or agreements heretofore alleged, the co-defendant
undertook certain duties and obligations in connection with this lawsuit.
2. That the said co-defendant undertook and agreed to hold harmless, indemnify and
defend the answering defendant in connection with injuries and accidents arising out of or in the
course of its work pursuant to its aforesaid agreement.
3. That if the plaintiff sustained injuries and damages as alleged in the Complaint they
were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms
and conditions emanating therefrom, including warranties contained therein and/or implied
therefrom by operation of law, or otherwise.
4. That by virtue of the foregoing the said co-defendant is obligated to indemnify the
answering defendant in the event of any liability against the answering defendant in favor of the
plaintiff in this matter.
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5. That by virtue of the foregoing the co-defendant is obligated to defend and to
undertake the defense of the answering defendant.
6. That if the plaintiff was caused to sustain any injuries as set forth in her Complaint
due to any carelessness, recklessness and/or negligence other than her own, including any culpable
conduct on her part, said injuries and damages were caused by breach of and/or in furtherance of
and as a result of the activities undertaken by the said co-defendant pursuant to the aforesaid
contracts and/or agreements and/or the terms and conditions emanating therefrom including breach
of warranties, stated and/or implied by operation of law or otherwise by the said co-defendant,
their agents, servants and/or employees.
7. That the co-defendant will be primarily responsible for the injuries and damages
allegedly sustained by the plaintiff herein.
8. That by reason of the foregoing the co-defendant will be liable to this defendant in
the event and in the full amount of any recovery herein by the plaintiff against the answering
defendant and it is bound to pay any and all attorney's fees, disbursements, costs of investigation
and costs of defense of this action.
9. That by reason of the foregoing, the answering defendant is entitled to judgment
over and against the co-defendant for the full amount of any recovery herein by the plaintiff against
the answering defendant for the injuries and damages sustained by the plaintiff.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A SIXTH CROSS CLAIM AGAINST
CO-DEFENDANT, ANSWERING DEFENDANT
ALLEGES:
1. Pursuant to the terms and conditions of the agreement heretofore alleged between
the answering defendant and co-defendants, they agreed to obtain and maintain certain insurance
coverage which would ensure their contractual indemnification and hold harmless provisions and
which would ensure the answering defendant against any and all liability or damages established
by the plaintiff and to further name the answering defendant as an additional insured under the
aforesaid insurance agreement and coverage obtained by it.
2. If plaintiff was caused to sustain injuries and damages and if plaintiff establishes
liability against the answering defendant, and if recovery is had against the answering defendant
by the plaintiff such shall come within the provisions of the aforesaid hold harmless
indemnification and insurance coverage agreements referred to above.
3. That if indeed the co-defendants are in breach of the aforesaid agreement and/or
agreements regarding the obtaining of the aforesaid insurance coverages and if indeed the said
defendants failed to comply therewith, the pleading defendant will have been damaged thereby.
4. That if the co-defendants are in breach of the aforesaid agreement and has failed to
obtain such insurance coverage as undertaken by it, then co-defendants are obligated to reimburse
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the pleading defendant in the full amount of attorneys' fees expended by itor on its behalf in
defense of the action instituted against it by the plaintiff as well as to indemnify them in the full
amount of any recovery by the plaintiff in this action against the pleading defendant, together with
attorneys' fees, costs and disbursements.
WHEREFORE, answering defendant demands judgment dismissing the Complaint,
together with the costs, interest and disbursements of this action.
Dated: New York, New York
May 26, 2021
Yours etc.,
MORRIS DUFFY ALONSO & FALEY
By: ___________________________
KENNETH E. PITCOFF
Attorneys for Defendant
COUNTY OF DUTCHESS
101 Greenwich Street, 22nd Floor
New York, New York 10006
T: (212) 766-1888
F: (212) 766-3252
Our File No.: (TRI) 72579
To: GREENSTEIN & MILBAUER, LLP
Attorneys for Plaintiff
JANE DOE - 19240
1825 Park Avenue, 9th Floor
New York, NY 10035
(212) 685-8500
smilbauer@nyclawfirm.com
Defendant The Children’s Home of Poughkeepsie has not yet appeared
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ATTORNEY VERIFICATION
KENNETH E. PITCOFF, an attorney admitted to practice in the courts of New York State.
That I am a partner of the firm of MORRIS DUFFY ALONSO & FALEY, the attorneys
of record for defendants. I have read the foregoing ANSWER and know the contents thereof; the
same is true to my own knowledge, except as to the matters therein alleged to be on information
and belief, and as to those matters I believe it to be true. The reason this verification is made by
me and not by the defendant is that the defendant does not maintain an office within New York
County.
The grounds of my belief as to all matters not stated upon my own knowledge are based
on a review of the contents of the file maintained by this office.
Dated: New York, New York
May 26, 2021
__________________________
KENNETH E. PITCOFF, ESQ.
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Index No : 2021-51440
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
JANE DOE - 19240,
Plaintiff,
-against-
THE CHILDREN’S HOME OF POUGHKEEPSIE
and COUNTY OF DUTCHESS,
Defendants.
VERIFIED ANSWER WITH CROSS-CLAIMS
MORRIS DUFFY ALONSO & FALEY
Attorneys for Defendant
COUNTY OF DUTCHESS
101 Greenwich Street - 22nd Floor
New York, New York 10006
(212) 766-1888
File No.: (TRI) 72579
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Preview
FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -----------------------------------------------------------------X JANE DOE - 19240, Index No : 2021-51440 Plaintiff, -against- VERIFIED ANSWER WITH CROSS-CLAIMS THE CHILDREN’S HOME OF POUGHKEEPSIE and COUNTY OF DUTCHESS, Defendants. ----------------------------------------------------------------X The defendant COUNTY OF DUTCHESS by its attorneys, MORRIS DUFFY ALONSO & FALEY, upon information and belief, answers the plaintiff’s Complaint herein as follows: 1. Admit each and every allegation contained in the paragraphs or subdivisions of the Complaint designated: “8,” “9,” and “11.” 2. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Complaint designated: “1,” “2,” “4,” “5,” “6,” “7,” “15,” “18,” “19,” “20,” “21,” 3. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “3,” “12,” “16,” “17,” “22,” “24,” “25” and “26” and respectfully refers all questions of law to this honorable court. 4. Deny any knowledge or information thereof sufficient to form a belief as to the truth of the allegations contained in the paragraph or subdivision of the Complaint designated “10,” “13,” “14,” and “23” and respectfully refers all questions of law to this honorable court. ANSWERING THE FIRST CAUSE OF ACTION 5. As to the paragraph of the Complaint designated “27”, answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through “26” inclusive, with the same force and effect as if fully set forth at length herein. 6. Admit each and every allegation contained in the paragraphs or subdivisions of the Complaint designated: “28.” 7. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “32,” “33”, “34,” “35,” “36,” “37,” “40,” “41,” “42,” “43,” “44”,”45,” “46,” “47,” “48,” “49,” “50,” “51,” “52,” “53,” “54,” “55,” “56,” “57,” “58” and “59.” 1 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 8. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Complaint designated: “30” and “31.” 9. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “29” and “30” and respectfully refers all questions of law to this honorable court 10. Deny any knowledge or information thereof sufficient to form a belief as to the truth of the allegations contained in the paragraph or subdivision of the Complaint designated “38” and “39” and respectfully refers all questions of law to this honorable court. ANSWERING THE SECOND CAUSE OF ACTION 11. As to the paragraph of the Complaint designated “60”, answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through “59” inclusive, with the same force and effect as if fully set forth at length herein. 12. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Complaint designated: “61,” “62,” “63,” “64,” “65,” “66,” “67,” “68,” “69,” “70,” “71,” “72,” “73,” “74,” “75,” “76,” “77,” “78,” “79,” “80,” “81,” “82,” “83,” “84,” “85,” “86,” “87,” “88,” “89,” “90” and “91.” 13. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “92” and respectfully refers all questions of law to this honorable court ANSWERING THE THIRD CAUSE OF ACTION 14. As to the paragraph of the Complaint designated “93”, answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through “92” inclusive, with the same force and effect as if fully set forth at length herein. 15. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated: “94,” “95,” “97,” “98,” “99,” “100,” “101,” “102,” “103,” “104,” “105,” “106,” “107,” “108,” “109,” “110,” “111,” “112,” “113,” and “114.” 16. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “96” and respectfully refers all questions of law to this honorable court. ANSWERING THE FOURTH CAUSE OF ACTION 17. As to the paragraph of the Complaint designated “1115”, answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through “114” inclusive, with the same force and effect as if fully set forth at length herein. 18. Deny any knowledge or information sufficient to form a belief as to the truth of the 2 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 allegations contained in the paragraphs or subdivisions of the Complaint designated: “115,” “116,” “117,” “118,” “119,” and “120.” 19. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “121” and respectfully refers all questions of law to this honorable court. ANSWERING THE FIFTH CAUSE OF ACTION 20. As to the paragraph of the Complaint designated “122”, answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through “121” inclusive, with the same force and effect as if fully set forth at length herein. 21. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Complaint designated: “123,” “124,” “125,” “126,” “127,” “128,” “129,” “130,” “131,” and “132.” 22. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated: “133.” 23. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “134” and respectfully refers all questions of law to this honorable court. ANSWERING THE SIXTH CAUSE OF ACTION 24. As to the paragraph of the Complaint designated “135”, answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through “134” inclusive, with the same force and effect as if fully set forth at length herein. 25. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Complaint designated: “136,” “137,” “138,” “139,” “140,” “141,” “142,” and “143.” 26. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “144” and respectfully refers all questions of law to this honorable court. ANSWERING THE SEVENTH CAUSE OF ACTION 27. As to the paragraph of the Complaint designated “145”, answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to paragraphs “1” through “144” inclusive, with the same force and effect as if fully set forth at length herein. 28. Deny each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “146” and “147.” ANSWERING DAMAGES 29. Deny each and every allegation contained in the paragraphs or subdivisions of the 3 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 Complaint designated “148”, “149,” and “150.” AFFIRMATIVE AND OTHER DEFENSES In further response to Plaintiff's Complaint, the Defendant hereinafter hereby asserts the following affirmative and other defenses, without conceding that it bears the burden of persuasion as to any of them except those deemed affirmative defenses by law, regardless of how such defenses are denominated herein. Nor does the Defendants admit that Plaintiff is relieved of their burden to prove each and every element of their claims and the damages, if any, to which they claim to be entitled. As for its defenses, the Defendant reasserts and reincorporates as if fully set forth herein its responses, above, to the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE The Court lacks Personal Jurisdiction over the answering defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE The answering defendant pleads and reserves the right to claim the limitations of liability pursuant to Article 16 of the CPLR, for any recovery herein by Plaintiff for any non-economic loss. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Upon information and belief, some or all of Plaintiff's damages are barred and/or subject to CPLR 4545. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE The answering defendant is entitled to a reduction in damages for any amount plaintiff has received as collateral source payment as defined and applied by the Civil Practice Law and Rules. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The Complaint herein, and each cause of action thereof, fails to set forth facts sufficient to state a claim upon which relief may be granted against the answering defendant and further fails to state facts sufficient to entitle Plaintiff to the relief sought, or to any other relief whatsoever from the answering defendant. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE The Complaint herein, and each cause of action thereof, fails to set forth facts sufficiently detailed as to “give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” See CPLR 3013. 4 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Upon information and belief, the occurrence alleged in the Verified Complaint herein, if proven true, was unfortunate, unforeseeable, and could not have been prevented by these answering defendants. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE The servants, agents and/or employees of the answering defendant did not take part in or direct the acts complained of. AS AND FOR A NINTH AFFIRMATIVE DEFENSE If the plaintiff was abused in the manner alleged, such abuse was not caused or due to the acts or omissions of the answering defendant, its agent, servants and/or employees. AS AND FOR A TENTH AFFIRMATIVE DEFENSE It is alleged in the Complaint that the damages sustained by the plaintiff was the result of the acts of the defendants. Answering defendant denies such acts occurred but in the event, it is determined that such acts did occur and were undertaken by an employee of the defendant then the defendants alleges that such acts were outside the scope of the authority and employment of the defendants and performed for a purpose foreign to any employment with this answering defendant, and were not ratified or consented to by the answering defendant. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE It is alleged in the Complaint that the damages sustained by the plaintiff was the result of the acts of the defendants. The answering defendant denies such acts occurred but in the event, it is determined that such acts did occur and were undertaken by an employee of the defendant, then the defendants alleges that it did not have any notice or awareness of any propensity on the part of any employee to commit such acts as alleged in the Complaint. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE The Complaint, to the extent that it seeks exemplary or punitive damages, violates this answering defendant, the defendants’ right to procedural due process under the Fourteenth Amendment of the United States Constitution, and the Constitution of the State of New York, and therefore fails to state a cause of action upon which either punitive or exemplary damages can be awarded. 5 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE The Complaint, to the extent that it seeks punitive or exemplary damages, violates these answering defendants, the Defendants’ right to protection from “excessive fines” as provided in the Eighth Amendment of the United States Constitution and the Constitution of the State of New York and violates these answering defendant’s right to substantive due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution of the State of New York, and therefore fails to state a cause of action supporting the punitive or exemplary damages claimed. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE These answering defendant is informed and believes that the Complaint, and each cause of action therein, is barred by reason of Article VI of the United States Constitution. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE In the event that a court determines that the passage and enactment of CPLR § 214-g violates the Due Process rights of this answering defendants, pursuant to the Fourteenth Amendment of the United States Constitution and Article 1, § 6 of the New York State Constitution and/or freedom of religion protections pursuant to the First Amendment of the United States Constitution, these answering defendants will seek dismissal of this action. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE In the event that a settlement occurs, all of the provisions of General Obligations Law 15- 108 are applicable. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE In the event the answering defendants are liable, and Plaintiff has provable damages, Plaintiff failed to mitigate such damages when Plaintiff had an opportunity to do so. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE The allegations in the Complaint refer to acts and/or omissions of county officials which involve the exercised use of discretion. As such, the County cannot be found liable. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE The answering defendant is entitled to qualified immunity AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE The answering defendant does not owe a specific duty of care to the plaintiff. 6 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE At all times relevant herein, the answering defendant has acted in complete conformity with generally recognized and prevailing standards. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE At all times relevant herein, the answering defendant has complied with all relevant laws, regulations, and applicable standards and customs. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE Upon information and belief, the New York Child Victims Act is unconstitutional and, as such, plaintiff’s Complaint must be dismissed as a matter of law. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE These answering defendants reserves the right to amend and supplement its affirmative and other defenses to include additional defenses at such time and to such extent as warranted by discovery and the factual developments in this case. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIRST CROSS CLAIM AGAINST CO-DEFENDANT, ANSWERING DEFENDANT ALLEGES: If plaintiff was caused to sustain injuries and damages at the time and place set forth in plaintiff's Complaint through any carelessness, recklessness and negligence other than plaintiff's own, those damages arose in whole or in part from the acts of co-defendant, and if any judgment is recovered herein by plaintiff against answering defendant, then this defendant will be damaged thereby and will be entitled to apportionment or indemnification, in whole or in part, on the basis of proportionate responsibility or obligation to indemnify of co-defendant. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SECOND CROSS CLAIM AGAINST CO-DEFENDANT, ANSWERING DEFENDANT ALLEGES: If the plaintiff was caused to sustain injuries and damages at the time and in the manner set forth in her Complaint through any carelessness, recklessness or negligence other than that of 7 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 plaintiff's own, which is expressly denied, such injuries and damages will have been caused, brought about and sustained solely by reason of the active, primary and affirmative negligence, carelessness and wrongdoing of the co-defendant, by their agents, servants and/or employees, without any negligence on the part of the answering defendant contributing thereto, or if there be any negligence on the part of the answering defendant, the same was merely passive and secondary in nature. That by reason of the foregoing, if the recovers any judgment against the answering defendant, then this defendant is entitled to be fully indemnified by the co-defendant in a like amount, together with the costs, disbursements, expenses and attorneys' fees of the defense of this action by reason of the active and primary negligence of the co-defendant. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A THIRD CROSS CLAIM AGAINST CO-DEFENDANT, ANSWERING DEFENDANT ALLEGES: If plaintiff sustained damages as alleged in the Complaint through any fault other than the plaintiff's own fault, then such damages were sustained due to the sole fault of the co-defendant, and if plaintiff should obtain and/or recover judgment against the answering defendant, then the co-defendant shall be liable pursuant to common law for the full indemnification of the answering defendant. In view of the foregoing, the answering defendant is entitled to complete common law indemnification for all loss, damage, cost or expense, including, without limitation, judgments, attorneys' fees, Court costs and the cost of appellate proceedings from the co-defendant. 8 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FOURTH CROSS CLAIM AGAINST CO-DEFENDANT, ANSWERING DEFENDANT ALLEGES: 1. That pursuant to the contracts and/or agreements, upon information and belief, the co-defendant undertook certain duties and obligations. 2. If the plaintiff sustained injuries and damages as alleged in the Complaint, they were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including warranties contained therein and/or implied therefrom by operation of law or otherwise. 3. If the plaintiff was caused to sustain the injuries as set forth in plaintiff's Complaint, through any carelessness, recklessness and/or negligence or other culpable conduct other than that of the plaintiff, said injuries and damages were caused by breach of and/or in furtherance of and as a result of the activities pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including breach of warranties, stated and/or implied, by operation of law or otherwise, by the co-defendant, their agents, servants and/or employees and if any judgment is recovered herein against the answering defendant, they will be damaged thereby and the co-defendant are or will be primarily responsible therefore and the answering defendant will be entitled to contribution and/or indemnification, in whole or in part, from the culpable parties named in this claim over for their portion of plaintiff's damages which were caused by the culpable parties named in this claim over, together with all attorneys' fees, costs and disbursements. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIFTH CROSS CLAIM AGAINST CO-DEFENDANT, ANSWERING DEFENDANT ALLEGES: 1. That pursuant to contracts and/or agreements heretofore alleged, the co-defendant undertook certain duties and obligations in connection with this lawsuit. 2. That the said co-defendant undertook and agreed to hold harmless, indemnify and defend the answering defendant in connection with injuries and accidents arising out of or in the course of its work pursuant to its aforesaid agreement. 3. That if the plaintiff sustained injuries and damages as alleged in the Complaint they were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including warranties contained therein and/or implied therefrom by operation of law, or otherwise. 4. That by virtue of the foregoing the said co-defendant is obligated to indemnify the answering defendant in the event of any liability against the answering defendant in favor of the plaintiff in this matter. 9 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 5. That by virtue of the foregoing the co-defendant is obligated to defend and to undertake the defense of the answering defendant. 6. That if the plaintiff was caused to sustain any injuries as set forth in her Complaint due to any carelessness, recklessness and/or negligence other than her own, including any culpable conduct on her part, said injuries and damages were caused by breach of and/or in furtherance of and as a result of the activities undertaken by the said co-defendant pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom including breach of warranties, stated and/or implied by operation of law or otherwise by the said co-defendant, their agents, servants and/or employees. 7. That the co-defendant will be primarily responsible for the injuries and damages allegedly sustained by the plaintiff herein. 8. That by reason of the foregoing the co-defendant will be liable to this defendant in the event and in the full amount of any recovery herein by the plaintiff against the answering defendant and it is bound to pay any and all attorney's fees, disbursements, costs of investigation and costs of defense of this action. 9. That by reason of the foregoing, the answering defendant is entitled to judgment over and against the co-defendant for the full amount of any recovery herein by the plaintiff against the answering defendant for the injuries and damages sustained by the plaintiff. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SIXTH CROSS CLAIM AGAINST CO-DEFENDANT, ANSWERING DEFENDANT ALLEGES: 1. Pursuant to the terms and conditions of the agreement heretofore alleged between the answering defendant and co-defendants, they agreed to obtain and maintain certain insurance coverage which would ensure their contractual indemnification and hold harmless provisions and which would ensure the answering defendant against any and all liability or damages established by the plaintiff and to further name the answering defendant as an additional insured under the aforesaid insurance agreement and coverage obtained by it. 2. If plaintiff was caused to sustain injuries and damages and if plaintiff establishes liability against the answering defendant, and if recovery is had against the answering defendant by the plaintiff such shall come within the provisions of the aforesaid hold harmless indemnification and insurance coverage agreements referred to above. 3. That if indeed the co-defendants are in breach of the aforesaid agreement and/or agreements regarding the obtaining of the aforesaid insurance coverages and if indeed the said defendants failed to comply therewith, the pleading defendant will have been damaged thereby. 4. That if the co-defendants are in breach of the aforesaid agreement and has failed to obtain such insurance coverage as undertaken by it, then co-defendants are obligated to reimburse 10 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 the pleading defendant in the full amount of attorneys' fees expended by itor on its behalf in defense of the action instituted against it by the plaintiff as well as to indemnify them in the full amount of any recovery by the plaintiff in this action against the pleading defendant, together with attorneys' fees, costs and disbursements. WHEREFORE, answering defendant demands judgment dismissing the Complaint, together with the costs, interest and disbursements of this action. Dated: New York, New York May 26, 2021 Yours etc., MORRIS DUFFY ALONSO & FALEY By: ___________________________ KENNETH E. PITCOFF Attorneys for Defendant COUNTY OF DUTCHESS 101 Greenwich Street, 22nd Floor New York, New York 10006 T: (212) 766-1888 F: (212) 766-3252 Our File No.: (TRI) 72579 To: GREENSTEIN & MILBAUER, LLP Attorneys for Plaintiff JANE DOE - 19240 1825 Park Avenue, 9th Floor New York, NY 10035 (212) 685-8500 smilbauer@nyclawfirm.com Defendant The Children’s Home of Poughkeepsie has not yet appeared 11 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 ATTORNEY VERIFICATION KENNETH E. PITCOFF, an attorney admitted to practice in the courts of New York State. That I am a partner of the firm of MORRIS DUFFY ALONSO & FALEY, the attorneys of record for defendants. I have read the foregoing ANSWER and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe it to be true. The reason this verification is made by me and not by the defendant is that the defendant does not maintain an office within New York County. The grounds of my belief as to all matters not stated upon my own knowledge are based on a review of the contents of the file maintained by this office. Dated: New York, New York May 26, 2021 __________________________ KENNETH E. PITCOFF, ESQ. 12 of 13 FILED: DUTCHESS COUNTY CLERK 05/26/2021 03:58 PM INDEX NO. 2021-51440 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/26/2021 Index No : 2021-51440 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS JANE DOE - 19240, Plaintiff, -against- THE CHILDREN’S HOME OF POUGHKEEPSIE and COUNTY OF DUTCHESS, Defendants. VERIFIED ANSWER WITH CROSS-CLAIMS MORRIS DUFFY ALONSO & FALEY Attorneys for Defendant COUNTY OF DUTCHESS 101 Greenwich Street - 22nd Floor New York, New York 10006 (212) 766-1888 File No.: (TRI) 72579 13 of 13