Preview
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 04/12/2024
EXHIBIT
C
FILED: BROOME
FILED: BROOME COUNTY
COUNTY CLERK
CLERK 04/12/2024
10/21/2021 03:07
10:29 PM
AM INDEX NO.
INDEX NO. EFCA2021002072
EFCA2021002072
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NYSCEF DOC. NO.
NO. 42
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RECEIVED NYSCEF: 04/12/2024
10/21/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF BROOME
DAVID DYMOCK, VERIFIED ANSWER
Plaintiff, Index No. 2021-002072
vs. RJI No.
BROOME COUNTY, BROOME COUNTY
Judge Assigned:
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.
Defendant Children's Home of Wyoming Conference, by and through its attorneys
Levene Gouldin & Thompson. LLP, hereby answers Plaintiffs Complaint as follows as
pertains only to itself and lacks knowledge or information sufficient to answer
allegations as pertain to the other defendants:
"45"
1. Admits each and every allegation contained in Paragraphs "18", "19",
"144"
and of Plaintiffs Complaint.
"41"
2. As to the allegations contained in Paragraph admits that Plaintiff was
placed at the Children's Home of Wyoming Conference in 2001 and refers questions of
law to the Court.
3. Denies each and every allegation contained in Paragraph "1", and refers
questions of law to the Court.
"Abuser"
4 Objects to the use of the term throughout Plaintiffs Complaint,
which assumes facts that have not been proven.
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5. Denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraphs "2", "3", "5", "G", "8", "9", "10", "11", "12", "13",
"22,"
14", "15", "16". "17", "20", "21", "23", "24", "25", "26", "27", "28", "30", "32", "33", "34",
"65,"
"35", "36", "37", "38", "39", "40", "44", "60", "61", "62", "63", "64", "66", "67", "68", "72",
"132" "134"
"106". "107", "108", "109", "110", "125", "126", "127", "129", "130", and of
Plaintiffs Complaint.
6. Denies knowledge or information sufficient to form a belief as to the truth
"29"
of the allegations contained in Paragraph of Plaintiffs Complaint, except as to state
Children's Home of Conference, The Upper New York Conference of the
that Wyoming
United Methodist Church and Conference of the United Methodist Church are
Wyoming
separate entities.
7. Denies each and everv allegation contained in Paragraphs 7", "31", "42",
"54,"
"43", "48", "49", "51", "52", "53", "55", "56", "57", "58", "59", "83", "84
"46", "47", "50",
i-xii", "85", "87", "88", "89", "90", "91", "92", "93", "94", "97", "100", "101", "102", "103",
"104". "111", "112", "113", "114", "115", "11G", "118". "119", "120", "121", "122", "123",
"128"
"124", "131", "133", "135", "136". "137". "140", "141", "142", "145", "146", "147",
"150" "151"
"148", "149", and of Plaintiffs Complaint.
8. As to Paragraphs "69", "70", "71", "73", "74", "75", "77", "78", "79", "80", "81
"117" "139"
a-1", "82", "95", "96", "98". "99", and of Plaintiffs Complaint, denies the
allegations in the form stated and refers questions of law to the Court.
9. Denies in the form stated the allegations contained in Paragraph "76".
-2 -
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"4"
10. As to the allegations contained in Paragraph of Plaintiffs Complaint,
admits that it resides in New York and denies as to the remainder of the paragraph.
11. Denies each and every other allegation not specifically admitted, denied or
comroverted above.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
12. The Complaint fails to state a cause of action against the Answering
Defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
13. Some or all of Plaintiffs claims are barred by the doctrine of laches.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
14. Plaintiffs Complaint is harred. in whole or in part. by the doctrines of
waiver and estoppel
AS_AND FOR A FOURTH AFFIRMATIVE DEFENSE
15. Some or all of the causes of action in Plaintiffs Complaint have not heen
brought within the time prescribed by the applicable Statute of Limitations
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
16. The alleged injuries suffered by Plaintiff were not proximately caused by
any actions of the Defendant.
AS AND FOR A SlXTH AFFIRMATIVE DEFENSE
17. Some or all of the damages alleged in the claim herein are barred and/or
subject to the qualifications of the provisions of N.Y. C.P.L.R. 4545.
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18. In the event that the Plaintiff recovers a judgment against the Answering
Defendant for the cost of medical care, loss of earnings, or other economic loss resulting
from the subject incidents of treatment, if any, of the Plaintiff arising out of the subject
incidents, the Answering Defendant is entitled to a reduction in the amount of the award
in favor of the Plaintiff and against the Answering Defendant by the amount of past and
future collateral source payments to or for the benefit of the Plaintiff of such loss, cost
and expenses pursuant to N.Y. C.P.L.R. 4545.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
19. If Plaintiff has suffered any damages as alleged in the Complaint, the
Answering Defendant cannot be held vicariously liable for these damages because they
arose from conduct which was outside the scope of the alleged individual perpetrator's
employment or agency.
AS AND FOR AN EIGlITII AFF1RMATIVE DEFENSE
20. In the event Plaintiff has reached or will reach agreements and/or
set tlements with any co-defendant(s) or other non-party tortfeasor(s), the Answering
Defendant will claim the benefit of limited liability provisions of General Obligations
Law Section 15-108.
AS ANI) FOR A NINTH AFFIRMATIVE DEFENSE
21. Any claim by Plaintiff is barred to the extent that the Child Victims Act
(New York Laws 2019, ch. 11, See. 2, eff. 2/14/2019: N.Y. C.P.L.R. 208) is found to violate
the United States Constitution and/or relevant New York State constitutional law.
AS AND FOR A TENTH AFFIRMATIVE I)EFENSE
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22. That in the event a verdict or decision is rendered in favor of Plaintiff
against the Answering Defendant, the Answering Defendant is entitled to limitations on
liability as set forth in Article 16 of the C.P.L.R.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
23. The Plaintiff has failed to join a necessary party pursuant to N.Y. C.P.L.R.
1001.
AS AND FOR A TWELVTH AFFIRMATIVE DEFENSE
24. That the injuries or damages described in the Plaintiffs Complaint were
caused in whole or in part by the negligence. or intentional or other culpable conduct of
such other person(s) or entities for whose acts the Answering Defendant was not
responsible and over whom the Answering Defendant had no control. and without any
negligence. intentional or other culpable conduct on the part of the Answering
Defendant causing or contributing thereto.
AS AND FOR A THIRTEENTH AFFIRAIATIVE DEFENSE
25. That the injuries or damages described in the Plaintiffs Complaint were
caused in whole or in part by the negligence. or intentional or other culpable conduct of
Plaintiff for whose acts the Answering Defendant was not responsible and over whom
the Answering Defendant had no control. and without any negligence, intentional or
other culpable conduct on the part of the Answering Defendant causing or contributing
thereto.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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26. The imposition of punitive damages would violate the Answering
Defendant's right to due process and equal protection under the Fifth and Fourth
Amendments of the United State Constitution and relevant New York State
constitutional law.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENS_E
27. Phtintiffs Complaint and each and every purported count or claim or cause
of action asserted therein that seeks an award of punitive or exemplary damages fail to
allege facts sufficient to justify an award of such damages against the Answering
Defendant.
AS AND FOR A SINTEENTIl AFFIRMATIVE DEFENSE
28. Any elaim 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.
AS AND AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
29. Defendant reserves the right to amend and/or supplement its Answer and
plead such additional defenses. the existence of which may become known to it through
further investigation and/or discovery in connection with this action.
DEFENDANT FURTHER ANSWERS PLA1NTIFF'S COMPLAINT AND AS
AND FOR A CROSS CLAIM AGAINST THE CO-DEFENDANTS STATES AS
FQLLOWS
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30. That if this action should result in a verdict against the Answering
Defendant, the Answering Defendant demands indemnification or contribution from
any culpable co-defendant based upon relative degree of culpability, and requests
judgment over accordingly.
WHEREFORE, the Answering Defendant demands judgment against Plaintiff
dismissing Plaintiffs Complaint against the Answering Defendant, for the costs and
disbursements ofthis action and for such other and further relief as the Court may deem
h just and proper.
Dated: Vestal, New York
October2( . 2021.
LEVENE G0 LDIN & THOMPSON, LLP
Ily:. ohn L. Perticone. Esq.
Atte rneys for Defendant
ldren's Home of Wyoming Conference
450 Pla7.a Drive
Vestal, NY 13850
Telephone: (607) 225-0722
Fax: (607) 763-9211
TO: Johanna Carmona, Esq.
SLATER SLATER SCHULMAN LLP
Attorneys for Plaintiff
488 Madison Avenue, 20th Floor
New York, New York 10022
I
71
(L07591
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CORPORATE VERIFlCATION
STATE OF NEW YORK )
) ss.:
COUNTY OF BROOME )
George T. Dermody, being duly sworn. deposes and says that deponent is the
President and CEO of Children's Home of Wyoming Conference, the corporation named
in the within action; that deponent has read the foregoing Answer and knows the
contents thereof; and that the same is true to deponent s own knowledge, except as to
the matters therein stated to be alleged on information and belief, and as to those
matters deponent believes them to be true.
This verification is made by deponent because Children's Home of Wyoming
Conference is a domestic corporation.
The grounds of deponent's belief as to all matters not stated upon deponents are
as follows: file documentation and advice of counsel
George T. Dermody
Sworn to before me this
day of October. 2021.
·
tar Public
C. VROMAN
Notary ) onN of New York State
Regiuranon SO1VR&042359
Qualified m Broome Coun
Commission Expires 05/22/_ - 8 -
{L0759t71
2)
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Preview
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 04/12/2024 EXHIBIT C FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/21/2021 03:07 10:29 PM AM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 42 6 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/21/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF BROOME DAVID DYMOCK, VERIFIED ANSWER Plaintiff, Index No. 2021-002072 vs. RJI No. BROOME COUNTY, BROOME COUNTY Judge Assigned: 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. Defendant Children's Home of Wyoming Conference, by and through its attorneys Levene Gouldin & Thompson. LLP, hereby answers Plaintiffs Complaint as follows as pertains only to itself and lacks knowledge or information sufficient to answer allegations as pertain to the other defendants: "45" 1. Admits each and every allegation contained in Paragraphs "18", "19", "144" and of Plaintiffs Complaint. "41" 2. As to the allegations contained in Paragraph admits that Plaintiff was placed at the Children's Home of Wyoming Conference in 2001 and refers questions of law to the Court. 3. Denies each and every allegation contained in Paragraph "1", and refers questions of law to the Court. "Abuser" 4 Objects to the use of the term throughout Plaintiffs Complaint, which assumes facts that have not been proven. 1 of 8 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/21/2021 03:07 10:29 PM AM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 42 6 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/21/2021 5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs "2", "3", "5", "G", "8", "9", "10", "11", "12", "13", "22," 14", "15", "16". "17", "20", "21", "23", "24", "25", "26", "27", "28", "30", "32", "33", "34", "65," "35", "36", "37", "38", "39", "40", "44", "60", "61", "62", "63", "64", "66", "67", "68", "72", "132" "134" "106". "107", "108", "109", "110", "125", "126", "127", "129", "130", and of Plaintiffs Complaint. 6. Denies knowledge or information sufficient to form a belief as to the truth "29" of the allegations contained in Paragraph of Plaintiffs Complaint, except as to state Children's Home of Conference, The Upper New York Conference of the that Wyoming United Methodist Church and Conference of the United Methodist Church are Wyoming separate entities. 7. Denies each and everv allegation contained in Paragraphs 7", "31", "42", "54," "43", "48", "49", "51", "52", "53", "55", "56", "57", "58", "59", "83", "84 "46", "47", "50", i-xii", "85", "87", "88", "89", "90", "91", "92", "93", "94", "97", "100", "101", "102", "103", "104". "111", "112", "113", "114", "115", "11G", "118". "119", "120", "121", "122", "123", "128" "124", "131", "133", "135", "136". "137". "140", "141", "142", "145", "146", "147", "150" "151" "148", "149", and of Plaintiffs Complaint. 8. As to Paragraphs "69", "70", "71", "73", "74", "75", "77", "78", "79", "80", "81 "117" "139" a-1", "82", "95", "96", "98". "99", and of Plaintiffs Complaint, denies the allegations in the form stated and refers questions of law to the Court. 9. Denies in the form stated the allegations contained in Paragraph "76". -2 - (L0759171 2) 2 of 8 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/21/2021 03:07 10:29 PM AM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 42 6 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/21/2021 "4" 10. As to the allegations contained in Paragraph of Plaintiffs Complaint, admits that it resides in New York and denies as to the remainder of the paragraph. 11. Denies each and every other allegation not specifically admitted, denied or comroverted above. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 12. The Complaint fails to state a cause of action against the Answering Defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 13. Some or all of Plaintiffs claims are barred by the doctrine of laches. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 14. Plaintiffs Complaint is harred. in whole or in part. by the doctrines of waiver and estoppel AS_AND FOR A FOURTH AFFIRMATIVE DEFENSE 15. Some or all of the causes of action in Plaintiffs Complaint have not heen brought within the time prescribed by the applicable Statute of Limitations AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 16. The alleged injuries suffered by Plaintiff were not proximately caused by any actions of the Defendant. AS AND FOR A SlXTH AFFIRMATIVE DEFENSE 17. Some or all of the damages alleged in the claim herein are barred and/or subject to the qualifications of the provisions of N.Y. C.P.L.R. 4545. 3 of 8 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/21/2021 03:07 10:29 PM AM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 42 6 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/21/2021 18. In the event that the Plaintiff recovers a judgment against the Answering Defendant for the cost of medical care, loss of earnings, or other economic loss resulting from the subject incidents of treatment, if any, of the Plaintiff arising out of the subject incidents, the Answering Defendant is entitled to a reduction in the amount of the award in favor of the Plaintiff and against the Answering Defendant by the amount of past and future collateral source payments to or for the benefit of the Plaintiff of such loss, cost and expenses pursuant to N.Y. C.P.L.R. 4545. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 19. If Plaintiff has suffered any damages as alleged in the Complaint, the Answering Defendant cannot be held vicariously liable for these damages because they arose from conduct which was outside the scope of the alleged individual perpetrator's employment or agency. AS AND FOR AN EIGlITII AFF1RMATIVE DEFENSE 20. In the event Plaintiff has reached or will reach agreements and/or set tlements with any co-defendant(s) or other non-party tortfeasor(s), the Answering Defendant will claim the benefit of limited liability provisions of General Obligations Law Section 15-108. AS ANI) FOR A NINTH AFFIRMATIVE DEFENSE 21. Any claim by Plaintiff is barred to the extent that the Child Victims Act (New York Laws 2019, ch. 11, See. 2, eff. 2/14/2019: N.Y. C.P.L.R. 208) is found to violate the United States Constitution and/or relevant New York State constitutional law. AS AND FOR A TENTH AFFIRMATIVE I)EFENSE 4 of 8 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/21/2021 03:07 10:29 PM AM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 42 6 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/21/2021 22. That in the event a verdict or decision is rendered in favor of Plaintiff against the Answering Defendant, the Answering Defendant is entitled to limitations on liability as set forth in Article 16 of the C.P.L.R. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 23. The Plaintiff has failed to join a necessary party pursuant to N.Y. C.P.L.R. 1001. AS AND FOR A TWELVTH AFFIRMATIVE DEFENSE 24. That the injuries or damages described in the Plaintiffs Complaint were caused in whole or in part by the negligence. or intentional or other culpable conduct of such other person(s) or entities for whose acts the Answering Defendant was not responsible and over whom the Answering Defendant had no control. and without any negligence. intentional or other culpable conduct on the part of the Answering Defendant causing or contributing thereto. AS AND FOR A THIRTEENTH AFFIRAIATIVE DEFENSE 25. That the injuries or damages described in the Plaintiffs Complaint were caused in whole or in part by the negligence. or intentional or other culpable conduct of Plaintiff for whose acts the Answering Defendant was not responsible and over whom the Answering Defendant had no control. and without any negligence, intentional or other culpable conduct on the part of the Answering Defendant causing or contributing thereto. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE -5- 5 of 8 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/21/2021 03:07 10:29 PM AM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 42 6 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/21/2021 26. The imposition of punitive damages would violate the Answering Defendant's right to due process and equal protection under the Fifth and Fourth Amendments of the United State Constitution and relevant New York State constitutional law. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENS_E 27. Phtintiffs Complaint and each and every purported count or claim or cause of action asserted therein that seeks an award of punitive or exemplary damages fail to allege facts sufficient to justify an award of such damages against the Answering Defendant. AS AND FOR A SINTEENTIl AFFIRMATIVE DEFENSE 28. Any elaim 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. AS AND AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 29. Defendant reserves the right to amend and/or supplement its Answer and plead such additional defenses. the existence of which may become known to it through further investigation and/or discovery in connection with this action. DEFENDANT FURTHER ANSWERS PLA1NTIFF'S COMPLAINT AND AS AND FOR A CROSS CLAIM AGAINST THE CO-DEFENDANTS STATES AS FQLLOWS 6 of 8 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/21/2021 03:07 10:29 PM AM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 42 6 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/21/2021 30. That if this action should result in a verdict against the Answering Defendant, the Answering Defendant demands indemnification or contribution from any culpable co-defendant based upon relative degree of culpability, and requests judgment over accordingly. WHEREFORE, the Answering Defendant demands judgment against Plaintiff dismissing Plaintiffs Complaint against the Answering Defendant, for the costs and disbursements ofthis action and for such other and further relief as the Court may deem h just and proper. Dated: Vestal, New York October2( . 2021. LEVENE G0 LDIN & THOMPSON, LLP Ily:. ohn L. Perticone. Esq. Atte rneys for Defendant ldren's Home of Wyoming Conference 450 Pla7.a Drive Vestal, NY 13850 Telephone: (607) 225-0722 Fax: (607) 763-9211 TO: Johanna Carmona, Esq. SLATER SLATER SCHULMAN LLP Attorneys for Plaintiff 488 Madison Avenue, 20th Floor New York, New York 10022 I 71 (L07591 7 of 8 FILED: BROOME FILED: BROOME COUNTY COUNTY CLERK CLERK 04/12/2024 10/21/2021 03:07 10:29 PM AM INDEX NO. INDEX NO. EFCA2021002072 EFCA2021002072 NYSCEF DOC. NYSCEF DOC. NO. NO. 42 6 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/12/2024 10/21/2021 CORPORATE VERIFlCATION STATE OF NEW YORK ) ) ss.: COUNTY OF BROOME ) George T. Dermody, being duly sworn. deposes and says that deponent is the President and CEO of Children's Home of Wyoming Conference, the corporation named in the within action; that deponent has read the foregoing Answer and knows the contents thereof; and that the same is true to deponent s own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters deponent believes them to be true. This verification is made by deponent because Children's Home of Wyoming Conference is a domestic corporation. The grounds of deponent's belief as to all matters not stated upon deponents are as follows: file documentation and advice of counsel George T. Dermody Sworn to before me this day of October. 2021. · tar Public C. VROMAN Notary ) onN of New York State Regiuranon SO1VR&042359 Qualified m Broome Coun Commission Expires 05/22/_ - 8 - {L0759t71 2) 8 of 8