Preview
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF BROOME
DAVID DYMOCK,
Plaintiff, AFFIRMATION OF
TIMOTHY N.
v. MCMAHON
BROOME COUNTY, BROOME COUNTY DEPARTMENT Index No.
OF SOCIAL SERVICES, CHILDREN’S HOME OF EFCA2021002072
WYOMING CONFERENCE, WYOMING CONFERENCE
OF THE UNITED METHODIST CHURCH, AND THE
UPPER NEW YORK CONFERENCE OF THE UNITED
METHODIST CHURCH,
Defendants.
TIMOTHY N. MCMAHON, hereby affirms the following under penalty of perjury:
1. I am an attorney duly admitted in the State of New York and a member of the law
firm of Bond, Schoeneck & King, PLLC, attorneys for defendants Wyoming Conference of the
United Methodist Church and the Upper New York Conference of the United Methodist Church
(the “Conference”).
2. I make this Affirmation in support of a motion for summary judgment dismissing
the Complaint and any cross claims, in their entirety, and with prejudice.
3. This action was commenced pursuant to the Child Victims Act by the filing of a
Summons and Complaint on August 12, 2021. A copy of the Complaint is attached as Exhibit A
(NYSCEF Doc. No. 1).
4. Defendants Broome County and Broome County Department of Social Services
(“Broome Defendants”) filed an Answer on October 4, 2021. A copy of the Broome Defendants’
Answer is attached as Exhibit B (NYSCEF Doc. No. 5).
1
17672614
1 of 5
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024
5. Defendant Children’s Home of Wyoming Conference (“Children’s Home”) filed
an Answer to the Complaint on October 21, 2021. A copy of the Children’s Home’s Answer is
attached as Exhibit C (NYSCEF Doc. No. 6).
6. The Conference filed an Answer to the Complaint on October 29, 2021. A copy of
the Conference’s Answer is attached as Exhibit D (NYSCEF Doc. No. 7).
7. The Complaint alleges, inter alia, that between 2000 and 2002 the Plaintiff was
sexually abused and assaulted by an unnamed “Abuser” who was allegedly an assistant manager
at the Children’s Home. It further alleges that the Abuser “was an authority constituting a superior
officer figure in charge of, at least in part, of the overall management of the Children’s Home” and
that the Abuser was under the direct supervision, employ, or control of all of the named defendants.
8. On April 7, 2023, the Conference moved for summary judgment pursuant to CPLR
3212. A copy of the Conference’s Notice of Motion, Affidavits of Rev. William Gottschalk-
Fielding (with exhibit) and Rev. Mark Marino, Affidavit of Timothy N. McMahon (with exhibits),
and Memorandum of Law are attached as Exhibit E. (NYSCEF Doc. Nos. 12-22).
9. In said moving papers, the Conference asserted that it had no responsibility for, or
control over, the employment and financial decisions of the Children’s Home, and the Abuser had
never been employed by or engaged in the performance of any duties of the Conference. At no
time did the Conference exercise any control over the actions of the Abuser.
10. On May 12, 2023, Plaintiff submitted opposition papers. Attached as Exhibit F are
the Plaintiff’s opposition papers, which included a Memorandum of Law and Affirmation of Philip
Papiasvili, Esq (NYSCEF Doc. Nos. 27-29).
11. On May 18, 2023, the Conference filed and served a Reply Memorandum of Law,
which is attached as Exhibit G (NYSCEF Doc. No. 31).
2
17672614
2 of 5
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024
12. None of the co-defendants opposed the motion.
13. The Broome County Supreme Court (Hon. Jeffrey A. Tait, JSC) entertained oral
argument on May 19, 2023.
14. On May 30, 2023, the Court issued a Decision and Order, which is attached as
Exhibit H (NYSCEF Doc. No. 32).
15. In its Decision and Order, the Court did not address the merits of the Conference’s
motion. Rather, based on CPLR 3212 (f), the Court noted that, “[w]ithout an opportunity to
conduct some limited discovery, [the Plaintiff] has no way to effectively oppose a motion for
summary judgment. Some discovery is essential to the plaintiff’s ability to oppose the motion”
(id.).
16. The Court further noted that the “[s]cope of discovery should be properly balanced.
This can be accomplished by allowing a plaintiff discovery on the limited issue of the relationship
between the co-defendants. Issues of whether any conduct covered by the CVA occurred and the
measure of damage shall be deferred until after this threshold issue is determined” (id.).
17. In view of the foregoing, the Court concluded that, “[f]or the foregoing reasons, the
motion for summary judgment is denied. The plaintiff may conduct discovery limited to
interrogatories, notices for discovery and inspection, and depositions of representatives of the
involved co-defendants regarding the scope and extent of the relationship and affiliation with and
control of the Home by the Conferences” (id.).
18. In light of the Court’s Decision and Order, on August 30, 2023, the Conference
served a letter on the Plaintiff, which is attached as Exhibit I. In said correspondence, the
Conference outlined that its motion was denied because the Plaintiff was entitled to some limited
discovery. The letter then provided the following, “[p]lease advise if you plan on serving any such
3
17672614
3 of 5
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024
[limited] discovery inasmuch as the defendants are motivated to complete the same so they can
again move for summary judgment. In the alternative, we would suggest that you reevaluate your
claims against the defendants based on the papers that were submitted in support of the defendants’
motion for summary judgment” (id.).
19. On October 27, 2023, the Conference served a second request on the Plaintiff,
which is attached as Exhibit J.
20. To date, the Plaintiff has not responded to either of the above-referenced letters.
Nor has he served any of the “limited discovery” directed by the May 30, 2023 Decision and Order.
21. As set forth in the accompanying Memorandum of Law, the Conference
respectfully seeks an Order dismissing this matter pursuant to CPLR 3126 (3) and 22 NYCRR
202.20-e inasmuch as the Plaintiff has not complied with the Court’s Decision and Order of May
30, 2023.
22. In the alternative, and as set forth in the accompanying Memorandum of Law, the
Conference requests that the Court address the merits of its CPLR 3212 motion for summary
judgment, originally filed on April 7, 2023.
23. As set forth in the accompanying Memorandum of Law, the allegations in the
Complaint are without merit as against the Conference, and the action (along with any cross-
claims) must be dismissed in their entirety, and with prejudice.
Dated: April 12, 2024
________________________________
Timothy N. McMahon
4
17672614
4 of 5
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024
WORD COUNT CERTIFICATION
I, TIMOTHY N. McMAHON, hereby affirm pursuant to Rule 202.8-b of the Uniform
Civil Rules for the Supreme and County Court that the word count for the above Affirmation is
989 words, excluding the caption and signature block, according to the word count function on
Microsoft Word, and therefore complies with the 7,000 word count limit.
Timothy N. McMahon
5
17672614
5 of 5
Preview
FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF BROOME DAVID DYMOCK, Plaintiff, AFFIRMATION OF TIMOTHY N. v. MCMAHON BROOME COUNTY, BROOME COUNTY DEPARTMENT Index No. OF SOCIAL SERVICES, CHILDREN’S HOME OF EFCA2021002072 WYOMING CONFERENCE, WYOMING CONFERENCE OF THE UNITED METHODIST CHURCH, AND THE UPPER NEW YORK CONFERENCE OF THE UNITED METHODIST CHURCH, Defendants. TIMOTHY N. MCMAHON, hereby affirms the following under penalty of perjury: 1. I am an attorney duly admitted in the State of New York and a member of the law firm of Bond, Schoeneck & King, PLLC, attorneys for defendants Wyoming Conference of the United Methodist Church and the Upper New York Conference of the United Methodist Church (the “Conference”). 2. I make this Affirmation in support of a motion for summary judgment dismissing the Complaint and any cross claims, in their entirety, and with prejudice. 3. This action was commenced pursuant to the Child Victims Act by the filing of a Summons and Complaint on August 12, 2021. A copy of the Complaint is attached as Exhibit A (NYSCEF Doc. No. 1). 4. Defendants Broome County and Broome County Department of Social Services (“Broome Defendants”) filed an Answer on October 4, 2021. A copy of the Broome Defendants’ Answer is attached as Exhibit B (NYSCEF Doc. No. 5). 1 17672614 1 of 5 FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024 5. Defendant Children’s Home of Wyoming Conference (“Children’s Home”) filed an Answer to the Complaint on October 21, 2021. A copy of the Children’s Home’s Answer is attached as Exhibit C (NYSCEF Doc. No. 6). 6. The Conference filed an Answer to the Complaint on October 29, 2021. A copy of the Conference’s Answer is attached as Exhibit D (NYSCEF Doc. No. 7). 7. The Complaint alleges, inter alia, that between 2000 and 2002 the Plaintiff was sexually abused and assaulted by an unnamed “Abuser” who was allegedly an assistant manager at the Children’s Home. It further alleges that the Abuser “was an authority constituting a superior officer figure in charge of, at least in part, of the overall management of the Children’s Home” and that the Abuser was under the direct supervision, employ, or control of all of the named defendants. 8. On April 7, 2023, the Conference moved for summary judgment pursuant to CPLR 3212. A copy of the Conference’s Notice of Motion, Affidavits of Rev. William Gottschalk- Fielding (with exhibit) and Rev. Mark Marino, Affidavit of Timothy N. McMahon (with exhibits), and Memorandum of Law are attached as Exhibit E. (NYSCEF Doc. Nos. 12-22). 9. In said moving papers, the Conference asserted that it had no responsibility for, or control over, the employment and financial decisions of the Children’s Home, and the Abuser had never been employed by or engaged in the performance of any duties of the Conference. At no time did the Conference exercise any control over the actions of the Abuser. 10. On May 12, 2023, Plaintiff submitted opposition papers. Attached as Exhibit F are the Plaintiff’s opposition papers, which included a Memorandum of Law and Affirmation of Philip Papiasvili, Esq (NYSCEF Doc. Nos. 27-29). 11. On May 18, 2023, the Conference filed and served a Reply Memorandum of Law, which is attached as Exhibit G (NYSCEF Doc. No. 31). 2 17672614 2 of 5 FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024 12. None of the co-defendants opposed the motion. 13. The Broome County Supreme Court (Hon. Jeffrey A. Tait, JSC) entertained oral argument on May 19, 2023. 14. On May 30, 2023, the Court issued a Decision and Order, which is attached as Exhibit H (NYSCEF Doc. No. 32). 15. In its Decision and Order, the Court did not address the merits of the Conference’s motion. Rather, based on CPLR 3212 (f), the Court noted that, “[w]ithout an opportunity to conduct some limited discovery, [the Plaintiff] has no way to effectively oppose a motion for summary judgment. Some discovery is essential to the plaintiff’s ability to oppose the motion” (id.). 16. The Court further noted that the “[s]cope of discovery should be properly balanced. This can be accomplished by allowing a plaintiff discovery on the limited issue of the relationship between the co-defendants. Issues of whether any conduct covered by the CVA occurred and the measure of damage shall be deferred until after this threshold issue is determined” (id.). 17. In view of the foregoing, the Court concluded that, “[f]or the foregoing reasons, the motion for summary judgment is denied. The plaintiff may conduct discovery limited to interrogatories, notices for discovery and inspection, and depositions of representatives of the involved co-defendants regarding the scope and extent of the relationship and affiliation with and control of the Home by the Conferences” (id.). 18. In light of the Court’s Decision and Order, on August 30, 2023, the Conference served a letter on the Plaintiff, which is attached as Exhibit I. In said correspondence, the Conference outlined that its motion was denied because the Plaintiff was entitled to some limited discovery. The letter then provided the following, “[p]lease advise if you plan on serving any such 3 17672614 3 of 5 FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024 [limited] discovery inasmuch as the defendants are motivated to complete the same so they can again move for summary judgment. In the alternative, we would suggest that you reevaluate your claims against the defendants based on the papers that were submitted in support of the defendants’ motion for summary judgment” (id.). 19. On October 27, 2023, the Conference served a second request on the Plaintiff, which is attached as Exhibit J. 20. To date, the Plaintiff has not responded to either of the above-referenced letters. Nor has he served any of the “limited discovery” directed by the May 30, 2023 Decision and Order. 21. As set forth in the accompanying Memorandum of Law, the Conference respectfully seeks an Order dismissing this matter pursuant to CPLR 3126 (3) and 22 NYCRR 202.20-e inasmuch as the Plaintiff has not complied with the Court’s Decision and Order of May 30, 2023. 22. In the alternative, and as set forth in the accompanying Memorandum of Law, the Conference requests that the Court address the merits of its CPLR 3212 motion for summary judgment, originally filed on April 7, 2023. 23. As set forth in the accompanying Memorandum of Law, the allegations in the Complaint are without merit as against the Conference, and the action (along with any cross- claims) must be dismissed in their entirety, and with prejudice. Dated: April 12, 2024 ________________________________ Timothy N. McMahon 4 17672614 4 of 5 FILED: BROOME COUNTY CLERK 04/12/2024 03:07 PM INDEX NO. EFCA2021002072 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/12/2024 WORD COUNT CERTIFICATION I, TIMOTHY N. McMAHON, hereby affirm pursuant to Rule 202.8-b of the Uniform Civil Rules for the Supreme and County Court that the word count for the above Affirmation is 989 words, excluding the caption and signature block, according to the word count function on Microsoft Word, and therefore complies with the 7,000 word count limit. Timothy N. McMahon 5 17672614 5 of 5