Preview
FILED: BROOME COUNTY CLERK 10/29/2021 03:24 PM INDEX NO. EFCA2021002072
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/29/2021
SUPREME COURT OF THE STATE OF NEW YORK
BROOME COUNTY
DAVID DYMOCK, Index No. EFCA2021002072
Plaintiff,
- against -
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.
Defendants, The Upper New York Conference of the United Methodist Church and
Wyoming Conference of the United Methodist Church (collectively, “the Conference”), by and
through its attorneys, Eckert Seamans Cherin & Mellott, LLC, as and for an answer to the
complaint filed by the plaintiff, David Dymock, (“plaintiff”), hereby respond as follows:
1. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “1.”
2. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “2.”
3. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “3.”
4. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “4.”
5. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “5.”
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6. The Conference admits that it is a non-profit organization incorporated within the
State of New York. The remaining allegations of this paragraph are legal conclusions to which no
response is required.
7. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “7.”
8. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “8.”
AS TO THE PARTIES
9. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “9.”
10. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “10.”
11. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “11.”
12. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph “12.”
13. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “13.”
14. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “14.”
15. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph “15.”
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16. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “16.”
17. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph “17.”
18. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “18” as the allegations of this paragraph relate to
another defendant.
19. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “19” as the allegations of this paragraph relate to
another defendant.
20. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “20” as the allegations of this paragraph relate to
another defendant.
21. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “21” as the allegations of this paragraph relate to
another defendant.
22. The Conference denies the allegations contained in paragraph “22” of the
Complaint.
23. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “23.”
24. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations in paragraph “24” as these allegations are vague.
25. The Conference denies the allegations contained in paragraph “25.”
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26. The Conference admits that it was formed in 2010. The remaining allegations of
paragraph “26” are denied as legal conclusions.
27. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “27” as these allegations are directed towards
another defendant.
28. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations contained in paragraph “28” as these allegations are directed towards
another defendant.
29. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations contained in paragraph “29” as these allegations are directed towards other
defendants.
30. The Conference denies the allegations contained in paragraph “30.”
31. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “31.”
32. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “32.”
AS TO BACKGROUND AND SEXUAL ASSAULT OF PLAINTIFF
33. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “33.”
34. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “34.”
35. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “35.”
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36. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations contained in paragraph “36.”
37. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “37.”
38. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “38.”
39. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “39.”
40. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “40.”
41. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “41.”
42. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “42.”
43. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “43.”
44. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “44.”
45. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations contained in paragraph “45.”
46. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “46.”
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47. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “47.”
48. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “48.”
49. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “49.”
50. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations contained in paragraph “50.”
51. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “51.”
52. The Conference denies the allegations contained in paragraph “52.”
53. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations contained in paragraph “53.”
54. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations contained in paragraph “54.”
55. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “55.”
AS TO NOTICE-FORESEEABILITY
56. The Conference denies the allegations contained in paragraph “56.”
57. The Conference denies the allegations contained in paragraph “57.”
58. The Conference denies the allegations contained in paragraph “58.”
59. The Conference denies the allegations contained in paragraph “59.”
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AS TO DUTY
60. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “60.”
61. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “61.”
62. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “62.”
63. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “63.”
64. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “64.”
65. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “65.”
66. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “66.”
67. The Conference lacks information or knowledge sufficient to form a belief as to the
truth of the allegations contained in paragraph “67.”
68. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “68.”
69. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “69.”
70. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “70.”
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71. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “71.”
72. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “72.”
73. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “73.”
74. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “74.”
75. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “75.”
76. The Conference denies the allegations contained in paragraph “76.”
77. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “77.”
78. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “78.”
79. The Conference denies the allegations contained in paragraph “79.”
80. The Conference denies the allegations contained in paragraph “80.”
81. (a) – (l) The Conference denies the allegations contained in paragraph “81.”
82. The Conference denies the allegations contained in paragraph “82.”
AS TO BREACH
83. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “83.”
84. The Conference denies the allegations contained in paragraph “84.”
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85. The Conference denies the allegations contained in paragraph “85.”
AS AND FOR COUNT I
Negligence
86. The Conference repeats all of its responsive allegations above as if set forth here.
87. The Conference denies the allegations contained in paragraph “87.”
88. The Conference denies the allegations contained in paragraph “88.”
89. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “89.”
90. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “90.”
91. The Conference denies the allegations contained in paragraph “91.”
92. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “92.”
93. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “93.”
94. The Conference denies the allegations contained in paragraph “94.”
95. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “95.”
96. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “96.”
97. The Conference denies the allegations contained in paragraph “97.”
98. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “98.”
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99. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “99.”
100. The Conference denies the allegations contained in paragraph “100.”
101. The Conference denies the allegations contained in paragraph “101.”
102. The Conference denies the allegations contained in paragraph “102.”
103. The Conference denies the allegations contained in paragraph “103.”
104. The Conference denies the allegations contained in paragraph “100.”
AS AND FOR COUNT II
Negligent Hiring, Retention, Supervision, or Direction
105. The Conference repeats all of its responsive allegations above as if set forth here.
106. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “106.”
107. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “107.”
108. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “108.”
109. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “109.”
110. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “110.”
111. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “111.”
112. The Conference denies the allegations contained in paragraph “112.”
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113. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “113.”
114. The Conference denies the allegations contained in paragraph “114.”
115. The Conference denies the allegations contained in paragraph “115.”
116. The Conference denies the allegations contained in paragraph “116.”
117. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “117.”
118. The Conference denies the allegations contained in paragraph “118.”
119. The Conference denies the allegations contained in paragraph “119.”
120. The Conference denies the allegations contained in paragraph “120.”
121. The Conference denies the allegations contained in paragraph “121.”
122. The Conference denies the allegations contained in paragraph “122.”
123. The Conference denies the allegations contained in paragraph “123.”
124. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “124.”
125. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “125.”
126. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “126.”
127. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “127.”
128. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “128.”
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129. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “129.”
130. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “130.”
131. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “131.”
132. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “132” as the allegations of this paragraph are
directed towards another defendant.
133. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “133” as the allegations of this paragraph are
directed towards another defendant.
134. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “134.”
135. The Conference denies the allegations contained in paragraph “135.”
136. The Conference denies the allegations contained in paragraph “136.”
137. The Conference denies the allegations contained in paragraph “137.”
AS AND FOR COUNT III
Breach of Statutory Duty to Report Abuse under Soc. Serv. Law §§ 413 and 420
138. The Conference repeats all of its responsive allegations above as if set forth here.
139. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “139.”
140. The Conference denies the allegations contained in paragraph “140.”
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141. The Conference denies the allegations contained in paragraph “141.”
142. The Conference denies the allegations contained in paragraph “142.”
AS AND FOR COUNT IV
Premises Liability (against Children’s Home)
143. The Conference repeats all of its responsive allegations above as if set forth here.
144. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “144.”
145. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “145.”
146. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “146.”
147. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “147.”
148. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “148.”
149. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “149.”
150. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “150.”
151. The Conference lacks knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph “151.”
WHEREFORE, Defendants, The Upper New York Conference of the United Methodist
Church and Wyoming Conference of the United Methodist Church hereby request the entry of a
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judgment dismissing the complaint in its entirety, with prejudice, together with the costs and
disbursements of this action and for any expenses incurred in the defense thereof, including
defense attorneys’ fees and costs.
FIRST AFFIRMATIVE DEFENSE
The complaint and each cause of action thereof, fails to set forth facts sufficiently detailed
so as to give the court and the parties notice of the transactions, occurrences, or series of
transactions or occurrences, intended to be proved and the material elements of each cause of
action or defense.
SECOND AFFIRMATIVE DEFENSE
The complaint, and each cause of action thereof, fails to set forth facts sufficient to state a
claim upon which relief may be granted against the Conference and fails to state facts sufficient to
entitle plaintiff to the relief requested, or any relief whatsoever against the Conference.
THIRD AFFIRMATIVE DEFENSE
Any purported damages allegedly suffered by plaintiff were the result of the acts or
omissions of third parties over whom the Conference does not have control.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff’s complaint is barred by the doctrine of laches and the statute of limitations.
FIFTH AFFIRMATIVE DEFENSE
Any alleged damages sustained by plaintiff were, at least in part, caused by the actions of
other persons and resulted from their negligence, which equaled or exceeded any alleged
negligence or wrongdoing by the Conference.
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SIXTH AFFIRMATIVE DEFENSE
Plaintiff’s causes of action, and more specifically, the Child Victims Act violates the
Conference’s right to the due process of law under the United States Constitution and the New
York State Constitution.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred, in whole or in part, by documentary evidence.
EIGTHTH AFFIRMATIVE DEFENSE
The Conference reserves their right to claim the limitations of liability pursuant to Article
16 of the CPLR, for any recovery by the plaintiff for any non-economic losses.
NINTH AFFIRMATIVE DEFENSE
Some or all of plaintiff’s claimed damages are barred and/or reduced by NY CLS CPLR §
4545.
TENTH AFFIRMATIVE DEFENSE
The Conference had no notice, either actual or constructive, of the alleged abuser’s
dangerous propensities.
ELEVENTH AFFIRMATIVE DEFENSE
At the time of the alleged abuse, the Conference did not have care, custody, or control over
the plaintiff.
TWELFTH AFFIRMATIVE DEFENSE
The Conference reserves their rights under General Obligations Law § 15-108 and CPLR
Article 14 against all parties.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff has failed to mitigate damages.
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FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s damages, if any, were the result of superseding or intervening causes committed
by third parties.
FIFTEENTH AFFIRMATIVE DEFENSE
The Conference took reasonable actions to protect the plaintiff as a minor.
SIXTEENTH AFFIRMATIVE DEFENSE
Even if the alleged abuser were considered an agent of the Conference, his actions were
outside the scope of employment.
SEVENTEENTH AFFIRMATIVE DEFENSE
Punitive damages are not recoverable under the due process clause of the United States
Constitution and the New York State Constitution.
EIGHTEENTH AFFIRMATIVE DEFENSE
The Conference has not engaged in an elevated level of misconduct that would warrant an
award of punitive damages.
NINETEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrine of accord and satisfaction.
TWENTIETH AFFIRMATIVE DEFENSE
The Conference did not owe the plaintiff a legal duty of care at the time plaintiff suffered
the alleged abuse.
TWENTY-FIRST AFFIRMATIVE DEFENSE
The Conference did not have notice of any alleged dangers presented by the alleged abuser.
TWENTY-SECOND AFFIRMATIVE DEFENSE
The Conference cannot be held vicariously liable for an alleged act of sexual abuse.
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TWENTY-THIRD AFFIRMATIVE DEFENSE
The Complaint fails to allege a specific sexual offense in Article 130 of the New York State
Penal Law or the material elements of the sexual offense as required by NY CLS CPLR § 214-g.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
The Complaint fails to allege the age of the alleged abuser, which is necessary for Penal
Law sexual offenses based on age.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
The Conference did not employ a mandatory reporter under Soc. Serv. Law §§ 413 and
420.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
The Conference did not receive a report of abuse from a parent, guardian, or legal custodian
such that a duty to report was triggered under Soc. Serv. Law §§ 413 and 420.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
The Conference did not own or control the premises identified in the Complaint.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Defendant, Wyoming Conference of the United Methodist Church is not a legal entity that
is subject to suit in New York.
TWENTY-NINETH AFFIRMATIVE DEFENSE
The Conference reserves their right to assert additional affirmative defenses as discovery
and investigation continue.
WHEREFORE, Defendants, The Upper New York Conference of the United Methodist
Church and Wyoming Conference of the United Methodist Church hereby request the entry of a
judgment dismissing the complaint in its entirety, with prejudice, together with the costs and
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disbursements of this action and for any expenses incurred in the defense thereof, including
defense attorneys’ fees and costs.
CONFERENCE’S CROSS-CLAIMS
Defendants, The Upper New York Conference of the United Methodist Church and
Wyoming Conference of the United Methodist Church (collectively, the “Conference”), by way
of cross-claims against co-defendants, Broome County and Broome County Department of Social
Services, (collectively, the “Cross-Claimed Co-Defendants”), hereby state as follows:
FIRST CAUSE OF ACTION – INDEMNIFICATION
1. The Conference repeats all of their responsive allegations above as if set forth here.
2. Without admitting any liability whatsoever to plaintiff and the injuries alleged, if
the Conference is found liable to the plaintiff for damages by reason of the alleged acts complained
of, the Conference’s negligence or other wrongful conduct was merely constructive, technical and
passive and plaintiff’s damages and injuries arose through the direct and primary negligence or
other wrongful conduct of the Cross-Claimed Co-Defendants in this action.
SECOND CAUSE OF ACTION – CONTRIBUTION
3. The Conference repeats all of their responsive allegations above as if set forth here.
4. While denying all liability to plaintiff, the Conference hereby asserts a claim for
contribution against the Cross-Claimed Co-Defendants and any affiliated companies or entities
pursuant to Article 14 of the CPLR, General Obligations Law § 15-108, and any other applicable
law.
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ANSWER TO ALL CROSS-CLAIMS
1. All cross-claims for contribution alleged, and all related factual allegations, are
denied as to the Conference.
2. All cross-claims for indemnification alleged, and all related factual allegations, are
denied as to the Conference.
WHEREFORE, Defendants, The Upper New York Conference of the United Methodist
Church and Wyoming Conference of the United Methodist Church hereby demand the entry of
judgment granting the following relief: (a) a judgment over and against the Cross-Claimed Co-
Defendants on its cross-claims for the amount of any judgment or verdict which may be obtained
by plaintiff against the Conference; (b) the dismissal of all cross-claims made against the
Conference for contribution or indemnification, with prejudice; and (c) an award of costs and
disbursements of this action, plus any and all attorneys’ fees and costs.
Respectfully submitted,
ECKERT, SEAMANS, CHERIN &
MELLOTT, LLC
By: /s/ Nicholas M. Gaunce
Nicholas M. Gaunce
Dated: October 29, 2021
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