Preview
FILED: ERIE COUNTY CLERK 11/01/2023
03/26/2021 01:43
02:45 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 83
22 RECEIVED NYSCEF: 11/01/2023
03/26/2021
SUPREME COURT:
SUPREME COURT: COUNTY OF ERIE
N.J.S. an infant, by
by and
and through
through her
her Parent
Parent and
Natural Guardian, MICHELE SARDO,
Guardian, MICHELE SARDO, andand
MICHELE
MICHELE SARDO,
SARDO, individually
Plaintiffs Index
Index No.:
No.: 805265/2020
805265/2020
v.
WEST SENECACENTRAL
WEST SENECA CENTRAL SCHOOL
SCHOOL DISTRICT,
DISTRICT,
WEST SENECACENTRAL
WEST SENECA CENTRAL SCHOOL
SCHOOL DISTRICT
DISTRICT VERIFIED
VERIFIED ANSW ER
ANSWER
BOARD OF EDUCATIQN
EDUCATION and and
WEST SENIOR
WEST SENIOR HIGHHIGH SCHOOL,
Defendants
v.
WEST SENECA CENTRAL
WEST SENECA CENTRAL SCHOOL
SCHOOL DISTRICT,
DISTRICT,
WEST SENECA CENTRAL
WEST SENECA CENTRAL SCHOOL
SCHOOL DISTRICT
DISTRICT
BOARD OF EDUCATION
EDUCATION and and
WEST SENIOR HIGH
WEST SENIOR HIGH SCHOOL
Third-Party Plaintiffs
v.
Cl-lRYSTLER
CHRYSTLER LEE LEE STORTZ,
STORTZ, MICHAEL
MICHAEL JAMES
BARBARA ANNE
STORTZ, BARBARA ANNE STORTZ,
STORTZ, andand
HEATHER THIBEALT
THIBEALTa/k/aa/k/a HEATHER STORTZ,
Third-Party
Third-Party Defendants
Defendants
Third-Party Defendant, Heather
I-leatherA.
A. Thibeault
Thibeault a/k/a
a/k/a Hather
Hather A.
A. Stortz,
Story, by
by her
her attorneys,
attorneys,
Marshall
Marshall Dennehey
Dennehey Warner
Warner Coleman
Coleman and Goggin and Bethany A.
A. Blood,
Blood,Esquire,
Esquire, as
as and for her
Verified
Verified Answer
Answer to
to the
the Third-Pariy
Third-Party Complaint,
Complaint, upon
upon information
informationand
and belief,
belief,states as follows:
states as follows:
1.
I. Deny having knowledge or information
information suftllcient
sufficient to form
form aa belief
belief as
as to the truth
of
of the allegations contained
contained in
in paragraphs
paragraphs1,1,7,7,ofofthe
theVerified
Verified Complaint.
Complaint.
2. Admit
Admit the
the allegations
allegations contained
contained in
inparagraphs
paragraphs 2, 3, 4, 5, 6, 16, 17, 18, of the
Verified Complaint.
3.
3. Deny
Deny each
each and every allegation contained in
in paragraphs
paragraphs 8, 9, 10, l11,
1, 12, 13, 14,
15, 19,
15, 19,20,
20,21,
21,22,23, 24,25,
22, 23, 24, 25, 26,27,
26, 27, 28,
28, 29, 30,
30,31,
31, 32, 33, 34,
34, 35,
35, 36,
36,37,
37,38,
38,39,
39,40,41, 42,43,
40, 41, 42, 43,
44,45,47,48,49, 50,
44, 45, 47, 48, 49, 50,51,
51,52,
52,53,
53,55,
55,56,
56,57,
57,58,
58,59,
59,60,
60,61,63,
61, 63,64,
64,65,
65,66,
66,67,
67,68,
68, 69,
69, 71,
71, 72,
72, 73,
74, 75, 76,
76, and
and 77
77of
ofthe Verified Complaint, as it calls for a legal conclusion.
theVerified
1 of 8
FILED: ERIE COUNTY CLERK 11/01/2023
03/26/2021 01:43
02:45 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 83
22 RECEIVED NYSCEF: 11/01/2023
03/26/2021
4. Deny
Deny each and every
each and everyallegation
allegationof
of the
theThird-Party
Third-Party Complaint that is not
specifically
specifically not
not heretofore specifically admitted
heretofore specifically admitted or denied.
denied.
5. Deny each and every
each and everyallegation
allegation of
of the
the Third-Party
Third-Party Complaint not
not heretofore
heretofore
specifically
specificallyadmitted
admitted01`
or denied.
AND FOR A
AS AND A FIRST CAUSE
CAUSE OF
OF ACTION
ACTION
6. Deny
Deny each
each and every allegation contained in
in paragraphs
paragraphs 47, 48, 49, 50, 51, 52,
and 53 of
and 53 of the
the Third-Party
Third-Party Complaint, as it calls for a legal conclusion.
AND FOR A
AS AND A SECOND
SECOND CAUSE
CAUSE OF
OFACTION
ACTION
7. Deny each
Deny each and every
every allegation
allegationcontained
containedininpa1'ag1'aphs 55,56,
paragraphs 55, 56, 57.
57, 58,
58, 59, 60,
and 61 of
and 61 of the
the Third-Party
Third-Party Complaint,
Complaint, as
as it calls for a legal conclusion.
AS AND FOR
FOR A
ATHIRD
THIRDCAUSE
CAUSEOF
OFAQT_IO§_
ACTION
8. Deny
Deny each
each and every allegation contained in
in paragraplis
paragraphs 63, 64, 65, 66, 67, 68,
and 69 of
and 69 of the
the Third-Party
Third-Party Complaint, as
as itit calls for a legal conclusion.
AND FOR
AS AND FOR A
A FOURTH
F()URTH CAUSE
CAUSE OF
OF ACTION
ACTION
9. Deny
Deny each
each and every allegation
allegation contained
contained in
inparagraphs
paragraphs 71,
71, 72,
72, 73,
73, 74,
74, 75,
75, 76
76 and
77 of the Third-Party
Third-Palty Complaint,
Complaint, as
as itit calls
calls for
for a legal conclusion.
AFFIRMATIVE
AFFIRMATIVEDEFENSES
DEFENSES.
First
First Affirmative
AffirmativeDefense
Defense
10. The incident, injuries
injuries and
and damages allegedly suffered by the Plaintiff
damages allegedly Plaintiff were
werecaused
caused
in whole or in
in palt
part by
by the
the culpable conduct and/or
and/or omissions
omissions of
of the
thePlaintiff
Plaintiff herself,
herself, including
including
negligence, assumption
assumption of
of the risk and contributory
contributory negligence,
negligence, and
and were
were not
not caused
caused by the
negligence 01'culpable
negligence or culpableconduct
conductofofthis
thisThird-Party
Third-PaltyDefendant,
Defendant,and
andPlaintiff's
Plaintiffs recovery, if
if any,
should be barred or
be barred or reduced
reducedaccordingly.
accordingly.
2
2 of 8
FILED: ERIE COUNTY CLERK 11/01/2023
03/26/2021 01:43
02:45 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 83
22 RECEIVED NYSCEF: 11/01/2023
03/26/2021
11. recoverable damages,
The recoverable damages,ififany,
any,should
shouldbe
bediminished
diminishedpursuant
pursuanttotoArticle
Article 14-A
14-A
of
of the CPLR.
Second Affirmative Defense
Second Affirmative Defense
12. The Plaintiff,
Plaintiff, ififshe
shemay
mayhave
have sustained
sustained any injuries
injuries at
at the
the time
time and
and place,
place, and
upon the occasion
occasion mentioned
mentioned in
in the
the Complaint
Complaint and
and Third-Party
Third-Pamy Complaint,
Complaint, assumed therisk
assumed the risk of
of
same under
sustaining same underthe
theconditions
conditions and
andcircumstances
circumstancesthen
thenexisting
existingand
andobvious.
obvious. The
recoverable damages,
damages,ififany,
any,should
shouldbe
bediminished
diminishedpursuant
pursuanttotoArticle
Article 14-A
14-A of the
the CPLR.
Third
Third Affirmative
AffirmativeDefense
Defense
13. This Third-Palty
Third-PartyDefendant
Defendant claims
claims the
the benefits and
and applicability
applicability of
of the provisions
contained within Article
contained within Article 14
14 of
of the CPLR.
Fourth
Fourth Affirmative
AffirmativeDefense
Defense
14. or more
One O1` moreofofthe
thecauses
causesofofaction
actionset
setforth
forthin
in the
the Complaint
Complaint and
and Third-Pa1"ly
Third-Party
Complaint
Complaint are
are not
not viable
viable based
based upon the claims of
of res
res judicata, collateral
collateral estoppel,
estoppel, release,
release,
laches andall
laches and all other
other affirmative
affirmative defenses provided for
defenses provided for in
in CPLR §3018.
Fifth
Fifth Affirmative
AffirmativeDefense
Defense
15. 111 theevent
In the eventPlaintiff
Plaintiffrecovers
recoversaaverdict
verdictor
orjudgment
judgment against
against the
theoriginal
original
Defendants, then said verdict Of' judgment must
or judgment must be
be reduced
reducedpursuant
pursuantto
toCPLR
CPLR §4545(c) by those
amounts which have
amounts which havebeen
beenororwill,
will, with
with reasonable
reasonablecertainty,
certainty,replace
replaceororindemnify
indemnifyPlaintiff
Plaintiff in
in
whole or in
in palt,
part, for
forany
any past
past future
future claimed
claimed economic
economic loss,
loss, from
fromany
anycollateral
collateralsource
source such
such as
as
insurance, social
social security, Workers' Compensation
security,Wo1'l
Preview
FILED: ERIE COUNTY CLERK 11/01/2023 03/26/2021 01:43 02:45 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 83 22 RECEIVED NYSCEF: 11/01/2023 03/26/2021 SUPREME COURT: SUPREME COURT: COUNTY OF ERIE N.J.S. an infant, by by and and through through her her Parent Parent and Natural Guardian, MICHELE SARDO, Guardian, MICHELE SARDO, andand MICHELE MICHELE SARDO, SARDO, individually Plaintiffs Index Index No.: No.: 805265/2020 805265/2020 v. WEST SENECACENTRAL WEST SENECA CENTRAL SCHOOL SCHOOL DISTRICT, DISTRICT, WEST SENECACENTRAL WEST SENECA CENTRAL SCHOOL SCHOOL DISTRICT DISTRICT VERIFIED VERIFIED ANSW ER ANSWER BOARD OF EDUCATIQN EDUCATION and and WEST SENIOR WEST SENIOR HIGHHIGH SCHOOL, Defendants v. WEST SENECA CENTRAL WEST SENECA CENTRAL SCHOOL SCHOOL DISTRICT, DISTRICT, WEST SENECA CENTRAL WEST SENECA CENTRAL SCHOOL SCHOOL DISTRICT DISTRICT BOARD OF EDUCATION EDUCATION and and WEST SENIOR HIGH WEST SENIOR HIGH SCHOOL Third-Party Plaintiffs v. Cl-lRYSTLER CHRYSTLER LEE LEE STORTZ, STORTZ, MICHAEL MICHAEL JAMES BARBARA ANNE STORTZ, BARBARA ANNE STORTZ, STORTZ, andand HEATHER THIBEALT THIBEALTa/k/aa/k/a HEATHER STORTZ, Third-Party Third-Party Defendants Defendants Third-Party Defendant, Heather I-leatherA. A. Thibeault Thibeault a/k/a a/k/a Hather Hather A. A. Stortz, Story, by by her her attorneys, attorneys, Marshall Marshall Dennehey Dennehey Warner Warner Coleman Coleman and Goggin and Bethany A. A. Blood, Blood,Esquire, Esquire, as as and for her Verified Verified Answer Answer to to the the Third-Pariy Third-Party Complaint, Complaint, upon upon information informationand and belief, belief,states as follows: states as follows: 1. I. Deny having knowledge or information information suftllcient sufficient to form form aa belief belief as as to the truth of of the allegations contained contained in in paragraphs paragraphs1,1,7,7,ofofthe theVerified Verified Complaint. Complaint. 2. Admit Admit the the allegations allegations contained contained in inparagraphs paragraphs 2, 3, 4, 5, 6, 16, 17, 18, of the Verified Complaint. 3. 3. Deny Deny each each and every allegation contained in in paragraphs paragraphs 8, 9, 10, l11, 1, 12, 13, 14, 15, 19, 15, 19,20, 20,21, 21,22,23, 24,25, 22, 23, 24, 25, 26,27, 26, 27, 28, 28, 29, 30, 30,31, 31, 32, 33, 34, 34, 35, 35, 36, 36,37, 37,38, 38,39, 39,40,41, 42,43, 40, 41, 42, 43, 44,45,47,48,49, 50, 44, 45, 47, 48, 49, 50,51, 51,52, 52,53, 53,55, 55,56, 56,57, 57,58, 58,59, 59,60, 60,61,63, 61, 63,64, 64,65, 65,66, 66,67, 67,68, 68, 69, 69, 71, 71, 72, 72, 73, 74, 75, 76, 76, and and 77 77of ofthe Verified Complaint, as it calls for a legal conclusion. theVerified 1 of 8 FILED: ERIE COUNTY CLERK 11/01/2023 03/26/2021 01:43 02:45 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 83 22 RECEIVED NYSCEF: 11/01/2023 03/26/2021 4. Deny Deny each and every each and everyallegation allegationof of the theThird-Party Third-Party Complaint that is not specifically specifically not not heretofore specifically admitted heretofore specifically admitted or denied. denied. 5. Deny each and every each and everyallegation allegation of of the the Third-Party Third-Party Complaint not not heretofore heretofore specifically specificallyadmitted admitted01` or denied. AND FOR A AS AND A FIRST CAUSE CAUSE OF OF ACTION ACTION 6. Deny Deny each each and every allegation contained in in paragraphs paragraphs 47, 48, 49, 50, 51, 52, and 53 of and 53 of the the Third-Party Third-Party Complaint, as it calls for a legal conclusion. AND FOR A AS AND A SECOND SECOND CAUSE CAUSE OF OFACTION ACTION 7. Deny each Deny each and every every allegation allegationcontained containedininpa1'ag1'aphs 55,56, paragraphs 55, 56, 57. 57, 58, 58, 59, 60, and 61 of and 61 of the the Third-Party Third-Party Complaint, Complaint, as as it calls for a legal conclusion. AS AND FOR FOR A ATHIRD THIRDCAUSE CAUSEOF OFAQT_IO§_ ACTION 8. Deny Deny each each and every allegation contained in in paragraplis paragraphs 63, 64, 65, 66, 67, 68, and 69 of and 69 of the the Third-Party Third-Party Complaint, as as itit calls for a legal conclusion. AND FOR AS AND FOR A A FOURTH F()URTH CAUSE CAUSE OF OF ACTION ACTION 9. Deny Deny each each and every allegation allegation contained contained in inparagraphs paragraphs 71, 71, 72, 72, 73, 73, 74, 74, 75, 75, 76 76 and 77 of the Third-Party Third-Palty Complaint, Complaint, as as itit calls calls for for a legal conclusion. AFFIRMATIVE AFFIRMATIVEDEFENSES DEFENSES. First First Affirmative AffirmativeDefense Defense 10. The incident, injuries injuries and and damages allegedly suffered by the Plaintiff damages allegedly Plaintiff were werecaused caused in whole or in in palt part by by the the culpable conduct and/or and/or omissions omissions of of the thePlaintiff Plaintiff herself, herself, including including negligence, assumption assumption of of the risk and contributory contributory negligence, negligence, and and were were not not caused caused by the negligence 01'culpable negligence or culpableconduct conductofofthis thisThird-Party Third-PaltyDefendant, Defendant,and andPlaintiff's Plaintiffs recovery, if if any, should be barred or be barred or reduced reducedaccordingly. accordingly. 2 2 of 8 FILED: ERIE COUNTY CLERK 11/01/2023 03/26/2021 01:43 02:45 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 83 22 RECEIVED NYSCEF: 11/01/2023 03/26/2021 11. recoverable damages, The recoverable damages,ififany, any,should shouldbe bediminished diminishedpursuant pursuanttotoArticle Article 14-A 14-A of of the CPLR. Second Affirmative Defense Second Affirmative Defense 12. The Plaintiff, Plaintiff, ififshe shemay mayhave have sustained sustained any injuries injuries at at the the time time and and place, place, and upon the occasion occasion mentioned mentioned in in the the Complaint Complaint and and Third-Party Third-Pamy Complaint, Complaint, assumed therisk assumed the risk of of same under sustaining same underthe theconditions conditions and andcircumstances circumstancesthen thenexisting existingand andobvious. obvious. The recoverable damages, damages,ififany, any,should shouldbe bediminished diminishedpursuant pursuanttotoArticle Article 14-A 14-A of the the CPLR. Third Third Affirmative AffirmativeDefense Defense 13. This Third-Palty Third-PartyDefendant Defendant claims claims the the benefits and and applicability applicability of of the provisions contained within Article contained within Article 14 14 of of the CPLR. Fourth Fourth Affirmative AffirmativeDefense Defense 14. or more One O1` moreofofthe thecauses causesofofaction actionset setforth forthin in the the Complaint Complaint and and Third-Pa1"ly Third-Party Complaint Complaint are are not not viable viable based based upon the claims of of res res judicata, collateral collateral estoppel, estoppel, release, release, laches andall laches and all other other affirmative affirmative defenses provided for defenses provided for in in CPLR §3018. Fifth Fifth Affirmative AffirmativeDefense Defense 15. 111 theevent In the eventPlaintiff Plaintiffrecovers recoversaaverdict verdictor orjudgment judgment against against the theoriginal original Defendants, then said verdict Of' judgment must or judgment must be be reduced reducedpursuant pursuantto toCPLR CPLR §4545(c) by those amounts which have amounts which havebeen beenororwill, will, with with reasonable reasonablecertainty, certainty,replace replaceororindemnify indemnifyPlaintiff Plaintiff in in whole or in in palt, part, for forany any past past future future claimed claimed economic economic loss, loss, from fromany anycollateral collateralsource source such such as as insurance, social social security, Workers' Compensation security,Wo1'l