Preview
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 04/12/2024
EXHIBIT
B
FILED: BROOME
FILED: BROOME COUNTY
COUNTY CLERK
CLERK 04/12/2024
10/04/2021 03:07
04:20 PM
PM INDEX NO.
INDEX NO. EFCA2021002072
EFCA2021002072
NYSCEF DOC.
NYSCEF DOC. NO.
NO. 41
5 RECEIVED NYSCEF:
RECEIVED NYSCEF: 04/12/2024
10/04/2021
SUPREME COURT
STATE OF NEW YORK: COUNTY OF BROOME
DAVID DYMOCK,
Plaintiff, VERIFIED ANSWER
-against- Index No. EFCA 2021002072
BROOME COUNTY, BROOME COUNTY
DEPARTMENT OF SOCIAL SERVICES,
CHILDREN'S HOME OF WYOMING
CONFERENCE, WYOMING CONFERENCE OF
THE UNITED METHODIST CHURCH and THE
UPPER NEW YORK CONFERENCE OF THE
UNITED METHODIST CHURCH,
Defendants.
The Defendants, Broome County and the Broome County Department of Social Services,
by and through their attorney ROBERT G. BEHNKE, Broome County Attorney, for their
Answer to Plaintiff's complaint, allege as follows.
1. Admit the allegations in paragraphs 11 and 19 of Plaintiff's Complaint.
2. Admit the allegations in paragraph 2 of the Complaint in that Broome County is a
municipal corporation and deny as to the remainder of the paragraph.
3. Admit the allegations in paragraph 3 of the Complaint that the Department of Social
Services is a County Department and deny as to the remainder of the paragraph.
4. Deny knowledge or information sufficient to form a belief as to the truth or falsity of the
allegations contained in paragraphs number 1,8,9,14,15,17, 18, 20 through 27,29, 34, 42, 43, 45
through 50, 59, 90, 93, 108, 109, 110 and 144 through 151 of the Complaint.
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5. Deny the allegations contained in paragraphs number 4 through 7,10,12,16, 30 through
33,35 through 41,44, 51 through 58, 60 through 80, 81 (a-l), 82, 83, 84 (i)-(xii), 85 through 89,
91, 92, 94 through 107, 110, and 112 through 143 of the Complaint.
6. Deny each and every allegation not specifically admitted, controverted or denied.
AS AND FOR A FIRST COMPLETE DEFENSE
7. The Complaint fails to state a cause of action against the County of Broome and the
Broome County Department of Social Services.
AS AND FOR A SECOND COMPLETE DEFENSE
8. Some or all of the causes of action set forth in Plaintiff's Complaint are barred by the
docrtine of laches.
AS AND FOR A THIRD COMPLETE DEFENSE
9. The County of Broome and th Broome County Department of Social Services are not
liable based on the doctrine of Respondeat Superior.
AS AND FOR A FOURTH COMPLETE DEFENSE
10. The Complaint against the County of Broome and the Broome County Department of
Social Services is barred by governmental immunity.
AS AND FOR A FIFTH COMPLETE DEFENSE
11. Plaintiff's Complaint is barred, in whole or in part, by the doctrine of waiver and
estoppel.
AS AND FOR A SIXTH COMPLETE DEFENSE
12. Some or all of the causes of action in Plaintiff's Complaint have not been brought within
the time prescribed by the applicable Statute of Limitations.
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AS AND FOR A SEVENTH COMPLETE DEFENSE
13. Plaintiff has failed to plead with specificity in compliance with N.Y. C.P.L.R. Sections
3014 and 3016.
AS AND FOR AN EIGHTH COMPLETE DEFENSE
14. The alleged injuries suffered by Plaintiff were not proximately caused by any actions of
the Answering Defendants.
AS AND FOR A NINTH COMPLETE DEFENSE
Defendants'
15. The imposition of punitive dmages would violate the Answering right to due
process and equal protection under the Fifth and Fourteenth Amendments of the United States
Constitution and relevant New York State constitutional law.
AS AND FOR A TENTH COMPLETE DEFENSE
16. Even if punitive damages were deemed to be consitutional they could not be obtained
from a municipal corporation.
AS AND FOR AN ELEVENTH COMPLETE DEFENSE
17. Plaintiff's Complaint and each and every purported count or claim or cause of action
asserted therein which seeks an award of punitive or exemplary damages, fails to allege facts
sufficient to justify an award of such damages against the Answering Defendants.
AS AND FOR A TWELTH COMPLETE DEFENSE
18. Any claim by Plaintiff for punitive damages is barred, reduced, or in the alternative is
unconstitutional insofar as it constitutes an excessive fine as provided in the Eighth Amendment
of the United States Constitution and Article 1, Section 5 of the Constitution of the State of New
York.
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AS AND FOR A THIRTEENTH COMPLETE DEFENSE
19. The amount of any recovery by the Plaintiff for economic loss must be reduced by the
amount that the Plaintiff has or will be reimbursed or indemnified for such loss pursuant to
CPLR § 4545.
AS AND FOR A FOURTEENTH COMPLETE DEFENSE
20. Any claim by Plaintiff is barred to the extent the Child Victims Act (New York Laws
2019 ch. 11, Sec. 2 eff. 2/14/19; N.Y. C.P.L.R. Section 208) is found to violate the United States
Constitution and/or relevant New York state constitutional law.
AS AND FOR A FIFTEENTH COMPLETE DEFENSE
21. That in the event a verdict or decision is rendered in favor of Plaintiff against the
Defendants, said Answering Defendants are entitled to limitations on liability as set forth m
Article 16 of the CPLR.
AS AND FOR A SIXTEENTH COMPLETE DEFENSE
22. That the injuries or damages described in the Plaintiff's Complaint were caused in whole
or in part by the negligence, or intentional or other culpable conduct of such person(s) or entities
for whose acts these Answering Defendants were not responsible and over whom these
Answering Defendants had no control, and without any negligence, intentional or other culpable
conduct on the part of these Answering Defendants causing or contributing thereto.
AS AND FOR A SEVENTEENTH COMPLETE DEFENSE
23. This court does not have jurisdiction of this action by reason of Plaintiff's failure to
obtain or have personal jurisdiction of the Defendants.
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AS AND FOR AN EIGHTEENTH COMPLETE DEFENSE
24. The Plaintiff has failed to comply with the pleading provisions of Section 50-i of the
General Municipal Law.
AS AND FOR A NINETEENTH COMPLETE DEFENSE
25. Plaintiff has failed to join a necessary party.
AS AND FOR A TWENTIETH COMPLETE DEFENSE
26. The Answering Defendants reserve the right to amend and/or supplement their Answer
and plead such additional defenses, the exstence of which may become known to it through
further investigation and/or discovery in connection with this action.
WHEREFORE, Defendants County of Broome and Broome County Department of Social
Services demand judgment dismissing the Plaintiff's Complaint with costs and disbursements
and such other and further relief as to the Court may seem just and proper.
Dated: October 4, 2021
Binghamton, NY
ROBERT G. BEHNKE
Broome County Attorney
Cheryl D. Sulfivan
Chief Assistant County Attorney
Broome County Attorney's Office
Edwin L. Crawford County Office Building
PO Box 1766
44 Hawley Street
Binghamton, NY 13902
(607) 778-2117
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FILED: BROOME
FILED: BROOME COUNTY
COUNTY CLERK
CLERK 04/12/2024
10/04/2021 03:07
04:20 PM
PM INDEX NO.
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EFCA2021002072
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NO. 41
5 RECEIVED NYSCEF:
RECEIVED NYSCEF: 04/12/2024
10/04/2021
TO: Adam P. Slater, Esq.
SLATER SLATER SCHULMAN LLP
20t1¹
488 Madison Avenue, Floor
New York, New York 10022
(212) 922-0906
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FILED: BROOME COUNTY
COUNTY CLERK
CLERK 04/12/2024
10/04/2021 03:07
04:20 PM
PM INDEX NO.
INDEX NO. EFCA2021002072
EFCA2021002072
NYSCEF DOC.
NYSCEF DOC. NO.
NO. 41
5 RECEIVED NYSCEF:
RECEIVED NYSCEF: 04/12/2024
10/04/2021
VERIFICATION
STATE OF NEW YORK)
ss:
COUNTY OF BROOME)
CHERYL D. SULLIVAN, being duly sworn, deposes and says:
That she is the Chief Assistant County Attorney for the County of Broome, defendant
herein; that she has read the foregoing Answer and the same is true of her own
knowledge except as to matters which are therein stated to be alleged on information
and belief and as to those matters, she believes it to be true.
CHERYL . SULLIVAN
Sworn to before me this
4th day of October, 2021.
Notary Public
MARTA L FOSTER
Public - State of New
Notary
York
NO. 01FO61 76766
Qualified in Broome C u
y
My Commission Expires / 1/ 9 4
7 of 7
Preview
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 04/12/2024 EXHIBIT B FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/04/2021 03:07 04:20 PM PM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 41 5 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/04/2021 SUPREME COURT STATE OF NEW YORK: COUNTY OF BROOME DAVID DYMOCK, Plaintiff, VERIFIED ANSWER -against- Index No. EFCA 2021002072 BROOME COUNTY, BROOME COUNTY DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S HOME OF WYOMING CONFERENCE, WYOMING CONFERENCE OF THE UNITED METHODIST CHURCH and THE UPPER NEW YORK CONFERENCE OF THE UNITED METHODIST CHURCH, Defendants. The Defendants, Broome County and the Broome County Department of Social Services, by and through their attorney ROBERT G. BEHNKE, Broome County Attorney, for their Answer to Plaintiff's complaint, allege as follows. 1. Admit the allegations in paragraphs 11 and 19 of Plaintiff's Complaint. 2. Admit the allegations in paragraph 2 of the Complaint in that Broome County is a municipal corporation and deny as to the remainder of the paragraph. 3. Admit the allegations in paragraph 3 of the Complaint that the Department of Social Services is a County Department and deny as to the remainder of the paragraph. 4. Deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs number 1,8,9,14,15,17, 18, 20 through 27,29, 34, 42, 43, 45 through 50, 59, 90, 93, 108, 109, 110 and 144 through 151 of the Complaint. 1 of 7 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/04/2021 03:07 04:20 PM PM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 41 5 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/04/2021 5. Deny the allegations contained in paragraphs number 4 through 7,10,12,16, 30 through 33,35 through 41,44, 51 through 58, 60 through 80, 81 (a-l), 82, 83, 84 (i)-(xii), 85 through 89, 91, 92, 94 through 107, 110, and 112 through 143 of the Complaint. 6. Deny each and every allegation not specifically admitted, controverted or denied. AS AND FOR A FIRST COMPLETE DEFENSE 7. The Complaint fails to state a cause of action against the County of Broome and the Broome County Department of Social Services. AS AND FOR A SECOND COMPLETE DEFENSE 8. Some or all of the causes of action set forth in Plaintiff's Complaint are barred by the docrtine of laches. AS AND FOR A THIRD COMPLETE DEFENSE 9. The County of Broome and th Broome County Department of Social Services are not liable based on the doctrine of Respondeat Superior. AS AND FOR A FOURTH COMPLETE DEFENSE 10. The Complaint against the County of Broome and the Broome County Department of Social Services is barred by governmental immunity. AS AND FOR A FIFTH COMPLETE DEFENSE 11. Plaintiff's Complaint is barred, in whole or in part, by the doctrine of waiver and estoppel. AS AND FOR A SIXTH COMPLETE DEFENSE 12. Some or all of the causes of action in Plaintiff's Complaint have not been brought within the time prescribed by the applicable Statute of Limitations. 2 of 7 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/04/2021 03:07 04:20 PM PM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 41 5 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/04/2021 AS AND FOR A SEVENTH COMPLETE DEFENSE 13. Plaintiff has failed to plead with specificity in compliance with N.Y. C.P.L.R. Sections 3014 and 3016. AS AND FOR AN EIGHTH COMPLETE DEFENSE 14. The alleged injuries suffered by Plaintiff were not proximately caused by any actions of the Answering Defendants. AS AND FOR A NINTH COMPLETE DEFENSE Defendants' 15. The imposition of punitive dmages would violate the Answering right to due process and equal protection under the Fifth and Fourteenth Amendments of the United States Constitution and relevant New York State constitutional law. AS AND FOR A TENTH COMPLETE DEFENSE 16. Even if punitive damages were deemed to be consitutional they could not be obtained from a municipal corporation. AS AND FOR AN ELEVENTH COMPLETE DEFENSE 17. Plaintiff's Complaint and each and every purported count or claim or cause of action asserted therein which seeks an award of punitive or exemplary damages, fails to allege facts sufficient to justify an award of such damages against the Answering Defendants. AS AND FOR A TWELTH COMPLETE DEFENSE 18. Any claim by Plaintiff for punitive damages is barred, reduced, or in the alternative is unconstitutional insofar as it constitutes an excessive fine as provided in the Eighth Amendment of the United States Constitution and Article 1, Section 5 of the Constitution of the State of New York. 3 of 7 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/04/2021 03:07 04:20 PM PM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 41 5 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/04/2021 AS AND FOR A THIRTEENTH COMPLETE DEFENSE 19. The amount of any recovery by the Plaintiff for economic loss must be reduced by the amount that the Plaintiff has or will be reimbursed or indemnified for such loss pursuant to CPLR § 4545. AS AND FOR A FOURTEENTH COMPLETE DEFENSE 20. Any claim by Plaintiff is barred to the extent the Child Victims Act (New York Laws 2019 ch. 11, Sec. 2 eff. 2/14/19; N.Y. C.P.L.R. Section 208) is found to violate the United States Constitution and/or relevant New York state constitutional law. AS AND FOR A FIFTEENTH COMPLETE DEFENSE 21. That in the event a verdict or decision is rendered in favor of Plaintiff against the Defendants, said Answering Defendants are entitled to limitations on liability as set forth m Article 16 of the CPLR. AS AND FOR A SIXTEENTH COMPLETE DEFENSE 22. That the injuries or damages described in the Plaintiff's Complaint were caused in whole or in part by the negligence, or intentional or other culpable conduct of such person(s) or entities for whose acts these Answering Defendants were not responsible and over whom these Answering Defendants had no control, and without any negligence, intentional or other culpable conduct on the part of these Answering Defendants causing or contributing thereto. AS AND FOR A SEVENTEENTH COMPLETE DEFENSE 23. This court does not have jurisdiction of this action by reason of Plaintiff's failure to obtain or have personal jurisdiction of the Defendants. 4 of 7 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/04/2021 03:07 04:20 PM PM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 41 5 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/04/2021 AS AND FOR AN EIGHTEENTH COMPLETE DEFENSE 24. The Plaintiff has failed to comply with the pleading provisions of Section 50-i of the General Municipal Law. AS AND FOR A NINETEENTH COMPLETE DEFENSE 25. Plaintiff has failed to join a necessary party. AS AND FOR A TWENTIETH COMPLETE DEFENSE 26. The Answering Defendants reserve the right to amend and/or supplement their Answer and plead such additional defenses, the exstence of which may become known to it through further investigation and/or discovery in connection with this action. WHEREFORE, Defendants County of Broome and Broome County Department of Social Services demand judgment dismissing the Plaintiff's Complaint with costs and disbursements and such other and further relief as to the Court may seem just and proper. Dated: October 4, 2021 Binghamton, NY ROBERT G. BEHNKE Broome County Attorney Cheryl D. Sulfivan Chief Assistant County Attorney Broome County Attorney's Office Edwin L. Crawford County Office Building PO Box 1766 44 Hawley Street Binghamton, NY 13902 (607) 778-2117 5 of 7 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/04/2021 03:07 04:20 PM PM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 41 5 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/04/2021 TO: Adam P. Slater, Esq. SLATER SLATER SCHULMAN LLP 20t1¹ 488 Madison Avenue, Floor New York, New York 10022 (212) 922-0906 6 of 7 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/04/2021 03:07 04:20 PM PM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 41 5 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/04/2021 VERIFICATION STATE OF NEW YORK) ss: COUNTY OF BROOME) CHERYL D. SULLIVAN, being duly sworn, deposes and says: That she is the Chief Assistant County Attorney for the County of Broome, defendant herein; that she has read the foregoing Answer and the same is true of her own knowledge except as to matters which are therein stated to be alleged on information and belief and as to those matters, she believes it to be true. CHERYL . SULLIVAN Sworn to before me this 4th day of October, 2021. Notary Public MARTA L FOSTER Public - State of New Notary York NO. 01FO61 76766 Qualified in Broome C u y My Commission Expires / 1/ 9 4 7 of 7