Preview
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ULSTER
_______________________________________
KIMBERLY DUFORD,
Plaintiff, ANSWER
v.
Index No.: EF2023-2889
SAUGERTIES CENTRAL SCHOOL DISTRICT,
THE ARC MID-HUDSON, NEW YORK
Defendants.
________________________________________
Defendant, SAUGERTIES CENTRAL SCHOOL DISTRICT, by and through its attorneys,
KENNEY SHELTON LIPTAK NOWAK LLP, for its Answer to Plaintiff’s Complaint, states,
upon information and belief:
1. Defendant denies knowledge or information sufficient to form a belief as to the
truth of the allegations set forth in paragraph “1” of the Complaint.
2. Defendant admits the allegations set forth in paragraph “2” of the Complaint.
3. Defendant denies knowledge or information sufficient to form a belief as to the
truth of the allegations set forth in paragraph “3” of the Complaint.
4. Defendant denies knowledge or information sufficient to form a belief as to the
truth of the allegations set forth in paragraph “4” of the Complaint.
5. Defendant denies knowledge or information sufficient to form a belief as to the
truth of the allegations set forth in paragraph “5” of the Complaint.
6. Defendant denies knowledge or information sufficient to form a belief as to the
truth of the allegations set forth in paragraph “6” of the Complaint.
7. Defendant denies knowledge or information sufficient to form a belief as to the
truth of the allegations set forth in paragraph “7” of the Complaint.
1 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
8. Defendant admits the allegations set forth in paragraph “8” of the Complaint.
9. Defendant denies that an incident occurred on Nov. 4, 2023. Defendant otherwise
denies knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in paragraph “9” of the Complaint.
10. Defendant denies the allegations set forth in paragraph “10” of the Complaint.
11. Defendant admits the allegations set forth in paragraph “11” of the Complaint to
the extent the Notice of Claim was served upon Saugerties Central School District. However,
Defendant denies that the Notice of Claim was served in a timely manner in compliance with
General Municipal Law § 50-e if it was served on Feb. 9, 2023 as alleged.
12. Defendant admits the allegations set forth in paragraph “12” of the Complaint, in
part, to the extent thirty days have elapsed since presentation of the Notice of Claim. Defendant
denies knowledge or information sufficient to form as belief as to the truth of the allegations as
they relate to the co-defendant. Defendant denies the remaining allegations.
13. Defendant admits the allegations set forth in paragraph “13” of the Complaint to
the extent a Worker’s Compensation Hearing was held on August 2, 2023. Defendant otherwise
neither admits nor denies the allegations as the “Notice of Decision” speaks for itself.
14. Defendant denies the allegations set forth in paragraph “14” of the Complaint.
15. Defendant denies the allegations set forth in paragraph “15” of the Complaint.
16. Treats the allegations contained in paragraph “16” of the Complaint as are
elsewhere treated herein.
17. Defendant admits the allegations set forth in paragraph “17” of the Complaint.
2
2 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
18. Defendant admits the allegations set forth in paragraph “18” of the Complaint to
the extent Kimberly Duford was an employee of the answering defendant at all times relevant
hereto. Defendant otherwise denies the allegations.
19. Defendant denies the allegations set forth in paragraph “19” of the Complaint.
20. Defendant denies the allegations set forth in paragraph “20” of the Complaint.
21. Defendant denies the allegations set forth in paragraph “21 of the Complaint.
22. Defendant denies the allegations set forth in paragraph “22” of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
23. Plaintiff’ claims are barred in whole or in part to the extent the complaint fails to
state a cause of action upon which relief may be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
24. Plaintiff’s claims are barred by the doctrine of laches, unclean hands, waiver, and
estoppel.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
25. Plaintiff’s claims are barred in whole or in part to the extent the alleged attack that
occurred on Nov. 4, 2022 (the “Incident”), was spontaneous and unforeseeable with no opportunity
for the answering defendant to intervene—no amount of supervision on the part of the answering
defendant could have prevented the Incident.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
26. Plaintiff’s claims are barred in whole or in part to the extent the student who
allegedly attacked plaintiff was the sole proximate cause of the employee’s injuries.
3
3 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
27. If it’s determined that the answering defendant owed a duty of care to plaintiff,
plaintiff’s claims are barred in whole or in part as the answering defendant did not have actual or
constructive notice of aggressor student's propensity to engage in violent misconduct.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
28. Whatever injuries plaintiff may have sustained at the time and place of the alleged
incident were caused in whole or in part by the carelessness, negligence, and culpable of plaintiff
and without any negligence, fault, or culpable conduct on the part of the answering defendant.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
29. In the event there has been a settlement between plaintiff and any joint tortfeasor,
this answering defendant hereby pleads and seeks the full benefit of § 15-108 of the General
Obligations Law, that Plaintiff’s claims against this answering defendant be reduced to the fullest
extent permitted by § 15-108 of the General Obligations Law.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
30. Upon information and belief, any past or future costs or expenses incurred or to be
incurred by plaintiff for medical care, loss of earnings or other economic loss, has been or will
with reasonable certainty be replaced or indemnified, in whole or in part, from a collateral source
as defined in CPLR § 4545.
4
4 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
31. If any damages are recoverable against the answering defendant, the amount of
such damages shall be diminished by the amount of the funds which plaintiff has or shall receive
from such collateral source.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
32. If the answering defendant is found liable, such liability is less than or equal to 50%
of the total liability of all persons who may be found liable and, therefore, the answering
defendant’s liability shall be limited to its equitable share, pursuant to CPLR Article 16.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
33. Pursuant to CPLR § 1411, that in the event plaintiff recovers damages or personal
injury, such damages shall be mitigated, reduced, and diminished in proportion to which the
culpable conduct attributable to plaintiff, including contributory negligence, contributory fault,
and assumption of risk bears to the culpable conduct which caused the damages as determined by
the trier of fact.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
34. At all times relevant to this matter, the answering defendant provided proper and
adequate training and supervision to its staff.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
35. At no time was the answering defendant negligent in its hiring, training, or
supervision of principals and teachers involved in the supervision of the student concerning the
Incident or any prior incidents.
5
5 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
36. At all times relevant to this matter, the answering defendant provided adequate and
appropriate supervision, regulation, and discipline of its students, including discipline of the
student involved in the Incident.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
37. At all times relevant to this matter, the answering defendant provided adequate
staffing and aides pursuant to the IEP of the student that allegedly assaulted plaintiff.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
38. Plaintiff’s claims are barred in whole or in part to the extent the plaintiff assumed
the risk of injury when she agreed to be an aide on the mini-van owned by The Arc Mid-Hudson-
New York immediately prior to the Incident.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
39. If plaintiff sustained any injury or incurred any damages as in the Complaint, said
injuries were caused in whole or in part by acts or omissions of another or others over whom the
answering defendant neither exercised nor had any right or control, for which the answering
defendant is not and was not responsible, and whose conduct the answering defendant, had no duty
or reason to anticipate or control.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
40. The answering defendant may not be held liable for the negligent performance of
its governmental function of supervising children in its charge, to the extent the answering
6
6 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
defendant owed no special duty of care to plaintiff. As such, the answering defendant is entitled
to governmental immunity.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
41. Plaintiff’s claims are barred in whole or in part to the extent Plaintiff failed to take
all reasonable measures to reduce, mitigate and/or minimize the damages alleged.
42. Some or all of the claims set forth in the Complaint are barred because plaintiff
failed to timely and/or property serve a proper notice of claim in accordance with § 50-e of the
General Municipal Law.
.AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
43. Plaintiff’s claims are barred to the extent this action was not commenced within the
applicable statute of limitations.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
44. Defendants reserve the right to assert additional affirmative defenses as may be
discovery during the course of this proceeding.
AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANT
45. If plaintiff sustained damages in the manner alleged in the Complaint, all of which
is denied by the answering defendant, such damages were caused by reason of the recklessness,
carelessness, negligence and culpable conduct of the co-defendant, The ARC Mid-Hudson, New
7
7 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
York (“co-defendant”), without any culpable conduct on the part of the answering defendant
contributing thereto.
46. By reason of the foregoing, the answering defendant is entitled to contribution
from, and to have judgment over against the co-defendant for all or part of any verdict or judgment
the plaintiff may recover against the answering defendant, including reimbursement of any costs
and/or attorneys’ fees incurred in this action.
AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANT
47. If plaintiff sustained damages in the manner alleged in the Complaint, all of which
is denied by the answering defendant, such damages were caused by reason of the negligence and
culpable conduct of co-defendant, without any culpable conduct on the part of the answering
defendant contributing thereto.
48. By reason of the foregoing, the answering defendant is entitled to common law
indemnification from, and to have judgment over against co-defendant, for all of any verdict or
judgment the plaintiff may recover against the answering defendant, including reimbursement of
any costs and/or attorneys’ fees incurred in this action.
AS AND FOR A THIRD CROSS-CLAIM AGAINST CO-DEFENDANT
49. Pursuant to the “Memo of Understanding Service Agreement” (the “Contract”),
that was in effect for the 2022-2023 school year, including the date of the Incident, co-defendant
agreed to certain terms, conditions, and obligations. Exhibit A, Contract
8
8 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
50. In the event Plaintiff recovers judgment against the answering defendant, it will
because co-defendant, failed to adhere to the terms, conditions, and obligations set forth under the
Contract and are/were in breach of the same.
51. In such event, co-defendant is reasonable for any and all damages incurred by the
answering defendant as the result of any such breaches, including any and all costs arising out of
the defense of this action, including attorney’s fees, and the cost of any resulting judgment.
WHEREFORE, Defendants respectfully request that the Court enter judgment as follows:
a. Dismiss the Complaint in its entirety;
b. Grant judgment on Defendant’s affirmative defenses and cross-claims; and
c. Award such other, further, and different relief as the Court deems just, proper and
equitable, including attorney’s fees, costs, and disbursements.
Dated: Buffalo, New York
January 30, 2024
KENNEY SHELTON LIPTAK NOWAK LLP
______________________________________
Alice J. Cunningham, Esq.
Attorneys for Defendant
Saugerties Central School District
The Calumet Building
233 Franklin Street
Buffalo, NY 14202
(716) 853-3801
ajcunningham@kslnlaw.com
TO: Kevin C. Harp, Esq.
O’CONNOR & PARTNERS, PLLC
Attorneys for Plaintiff
255 Wall Street
Kingston, NY 12402
(845) 303-8777
KHarp@onplaw.com
9
9 of 10
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024
The Arc Mid—Hudson, New York
471 Albany Avenue
Kingston, New York 12401
10
10 of 10
Preview
FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF ULSTER _______________________________________ KIMBERLY DUFORD, Plaintiff, ANSWER v. Index No.: EF2023-2889 SAUGERTIES CENTRAL SCHOOL DISTRICT, THE ARC MID-HUDSON, NEW YORK Defendants. ________________________________________ Defendant, SAUGERTIES CENTRAL SCHOOL DISTRICT, by and through its attorneys, KENNEY SHELTON LIPTAK NOWAK LLP, for its Answer to Plaintiff’s Complaint, states, upon information and belief: 1. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “1” of the Complaint. 2. Defendant admits the allegations set forth in paragraph “2” of the Complaint. 3. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “3” of the Complaint. 4. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “4” of the Complaint. 5. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “5” of the Complaint. 6. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “6” of the Complaint. 7. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “7” of the Complaint. 1 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 8. Defendant admits the allegations set forth in paragraph “8” of the Complaint. 9. Defendant denies that an incident occurred on Nov. 4, 2023. Defendant otherwise denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “9” of the Complaint. 10. Defendant denies the allegations set forth in paragraph “10” of the Complaint. 11. Defendant admits the allegations set forth in paragraph “11” of the Complaint to the extent the Notice of Claim was served upon Saugerties Central School District. However, Defendant denies that the Notice of Claim was served in a timely manner in compliance with General Municipal Law § 50-e if it was served on Feb. 9, 2023 as alleged. 12. Defendant admits the allegations set forth in paragraph “12” of the Complaint, in part, to the extent thirty days have elapsed since presentation of the Notice of Claim. Defendant denies knowledge or information sufficient to form as belief as to the truth of the allegations as they relate to the co-defendant. Defendant denies the remaining allegations. 13. Defendant admits the allegations set forth in paragraph “13” of the Complaint to the extent a Worker’s Compensation Hearing was held on August 2, 2023. Defendant otherwise neither admits nor denies the allegations as the “Notice of Decision” speaks for itself. 14. Defendant denies the allegations set forth in paragraph “14” of the Complaint. 15. Defendant denies the allegations set forth in paragraph “15” of the Complaint. 16. Treats the allegations contained in paragraph “16” of the Complaint as are elsewhere treated herein. 17. Defendant admits the allegations set forth in paragraph “17” of the Complaint. 2 2 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 18. Defendant admits the allegations set forth in paragraph “18” of the Complaint to the extent Kimberly Duford was an employee of the answering defendant at all times relevant hereto. Defendant otherwise denies the allegations. 19. Defendant denies the allegations set forth in paragraph “19” of the Complaint. 20. Defendant denies the allegations set forth in paragraph “20” of the Complaint. 21. Defendant denies the allegations set forth in paragraph “21 of the Complaint. 22. Defendant denies the allegations set forth in paragraph “22” of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 23. Plaintiff’ claims are barred in whole or in part to the extent the complaint fails to state a cause of action upon which relief may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 24. Plaintiff’s claims are barred by the doctrine of laches, unclean hands, waiver, and estoppel. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 25. Plaintiff’s claims are barred in whole or in part to the extent the alleged attack that occurred on Nov. 4, 2022 (the “Incident”), was spontaneous and unforeseeable with no opportunity for the answering defendant to intervene—no amount of supervision on the part of the answering defendant could have prevented the Incident. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 26. Plaintiff’s claims are barred in whole or in part to the extent the student who allegedly attacked plaintiff was the sole proximate cause of the employee’s injuries. 3 3 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 27. If it’s determined that the answering defendant owed a duty of care to plaintiff, plaintiff’s claims are barred in whole or in part as the answering defendant did not have actual or constructive notice of aggressor student's propensity to engage in violent misconduct. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 28. Whatever injuries plaintiff may have sustained at the time and place of the alleged incident were caused in whole or in part by the carelessness, negligence, and culpable of plaintiff and without any negligence, fault, or culpable conduct on the part of the answering defendant. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 29. In the event there has been a settlement between plaintiff and any joint tortfeasor, this answering defendant hereby pleads and seeks the full benefit of § 15-108 of the General Obligations Law, that Plaintiff’s claims against this answering defendant be reduced to the fullest extent permitted by § 15-108 of the General Obligations Law. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 30. Upon information and belief, any past or future costs or expenses incurred or to be incurred by plaintiff for medical care, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified, in whole or in part, from a collateral source as defined in CPLR § 4545. 4 4 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 31. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral source. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 32. If the answering defendant is found liable, such liability is less than or equal to 50% of the total liability of all persons who may be found liable and, therefore, the answering defendant’s liability shall be limited to its equitable share, pursuant to CPLR Article 16. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 33. Pursuant to CPLR § 1411, that in the event plaintiff recovers damages or personal injury, such damages shall be mitigated, reduced, and diminished in proportion to which the culpable conduct attributable to plaintiff, including contributory negligence, contributory fault, and assumption of risk bears to the culpable conduct which caused the damages as determined by the trier of fact. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 34. At all times relevant to this matter, the answering defendant provided proper and adequate training and supervision to its staff. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 35. At no time was the answering defendant negligent in its hiring, training, or supervision of principals and teachers involved in the supervision of the student concerning the Incident or any prior incidents. 5 5 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 36. At all times relevant to this matter, the answering defendant provided adequate and appropriate supervision, regulation, and discipline of its students, including discipline of the student involved in the Incident. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 37. At all times relevant to this matter, the answering defendant provided adequate staffing and aides pursuant to the IEP of the student that allegedly assaulted plaintiff. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 38. Plaintiff’s claims are barred in whole or in part to the extent the plaintiff assumed the risk of injury when she agreed to be an aide on the mini-van owned by The Arc Mid-Hudson- New York immediately prior to the Incident. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 39. If plaintiff sustained any injury or incurred any damages as in the Complaint, said injuries were caused in whole or in part by acts or omissions of another or others over whom the answering defendant neither exercised nor had any right or control, for which the answering defendant is not and was not responsible, and whose conduct the answering defendant, had no duty or reason to anticipate or control. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 40. The answering defendant may not be held liable for the negligent performance of its governmental function of supervising children in its charge, to the extent the answering 6 6 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 defendant owed no special duty of care to plaintiff. As such, the answering defendant is entitled to governmental immunity. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 41. Plaintiff’s claims are barred in whole or in part to the extent Plaintiff failed to take all reasonable measures to reduce, mitigate and/or minimize the damages alleged. 42. Some or all of the claims set forth in the Complaint are barred because plaintiff failed to timely and/or property serve a proper notice of claim in accordance with § 50-e of the General Municipal Law. .AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 43. Plaintiff’s claims are barred to the extent this action was not commenced within the applicable statute of limitations. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 44. Defendants reserve the right to assert additional affirmative defenses as may be discovery during the course of this proceeding. AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANT 45. If plaintiff sustained damages in the manner alleged in the Complaint, all of which is denied by the answering defendant, such damages were caused by reason of the recklessness, carelessness, negligence and culpable conduct of the co-defendant, The ARC Mid-Hudson, New 7 7 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 York (“co-defendant”), without any culpable conduct on the part of the answering defendant contributing thereto. 46. By reason of the foregoing, the answering defendant is entitled to contribution from, and to have judgment over against the co-defendant for all or part of any verdict or judgment the plaintiff may recover against the answering defendant, including reimbursement of any costs and/or attorneys’ fees incurred in this action. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANT 47. If plaintiff sustained damages in the manner alleged in the Complaint, all of which is denied by the answering defendant, such damages were caused by reason of the negligence and culpable conduct of co-defendant, without any culpable conduct on the part of the answering defendant contributing thereto. 48. By reason of the foregoing, the answering defendant is entitled to common law indemnification from, and to have judgment over against co-defendant, for all of any verdict or judgment the plaintiff may recover against the answering defendant, including reimbursement of any costs and/or attorneys’ fees incurred in this action. AS AND FOR A THIRD CROSS-CLAIM AGAINST CO-DEFENDANT 49. Pursuant to the “Memo of Understanding Service Agreement” (the “Contract”), that was in effect for the 2022-2023 school year, including the date of the Incident, co-defendant agreed to certain terms, conditions, and obligations. Exhibit A, Contract 8 8 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 50. In the event Plaintiff recovers judgment against the answering defendant, it will because co-defendant, failed to adhere to the terms, conditions, and obligations set forth under the Contract and are/were in breach of the same. 51. In such event, co-defendant is reasonable for any and all damages incurred by the answering defendant as the result of any such breaches, including any and all costs arising out of the defense of this action, including attorney’s fees, and the cost of any resulting judgment. WHEREFORE, Defendants respectfully request that the Court enter judgment as follows: a. Dismiss the Complaint in its entirety; b. Grant judgment on Defendant’s affirmative defenses and cross-claims; and c. Award such other, further, and different relief as the Court deems just, proper and equitable, including attorney’s fees, costs, and disbursements. Dated: Buffalo, New York January 30, 2024 KENNEY SHELTON LIPTAK NOWAK LLP ______________________________________ Alice J. Cunningham, Esq. Attorneys for Defendant Saugerties Central School District The Calumet Building 233 Franklin Street Buffalo, NY 14202 (716) 853-3801 ajcunningham@kslnlaw.com TO: Kevin C. Harp, Esq. O’CONNOR & PARTNERS, PLLC Attorneys for Plaintiff 255 Wall Street Kingston, NY 12402 (845) 303-8777 KHarp@onplaw.com 9 9 of 10 FILED: ULSTER COUNTY CLERK 01/30/2024 12:13 PM INDEX NO. EF2023-2889 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/30/2024 The Arc Mid—Hudson, New York 471 Albany Avenue Kingston, New York 12401 10 10 of 10