FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ORLEANS
`_______________________________________
`
`LYNDONVILLE CENTRAL SCHOOL DISTRICT
`and LYNDONVILLE ELEMENTARY SCHOOL,
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`VERIFIED ANSWER WITH
`COUNTERCLAIMS,
`CROSSCLAIMS, AND
`AFFIRMATIVE DEFENSES
`
`Index No. E23-01101
`
`
`
`
`v.
`
`
`
`UTICA MUTUAL INSURANCE COMPANY,
`GRAPHIC ARTS MUTUAL INSURANCE
`COMPANY, UTICA NATIONAL ASSURANCE
`COMPANY, AB 511 DOE, and AB 524 DOE,
`
`Defendants.
`
`
`
`______________________________________
`
`
`
`The Defendants, UTICA MUTUAL INSURANCE COMPANY, GRAPHIC ARTS
`
`MUTUAL INSURANCE COMPANY, and UTICA NATIONAL ASSURANCE COMPANY,
`
`hereinafter referred to as “these defendants” by their attorneys, HURWITZ FINE P.C., as and for
`
`an answer to the complaint of the Plaintiffs, LYNDONVILLE CENTRAL SCHOOL DISTRICT
`
`and LYNDONVILLE ELEMENTARY SCHOOL, herein states the following:
`
`1.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “1” of the plaintiffs’ verified complaint.
`
`2.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “2” of the plaintiffs’ verified complaint.
`
`3.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “3”, except admit that defendant Utica Mutual Insurance Group is an insurance
`
`company domiciled within the State of New York and is authorized to sell insurance policies in
`
`New York State.
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`
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`4.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “4”, except admit that defendant Graphic Arts Mutual Insurance Company is an
`
`insurance company domiciled within the State of New York and is authorized to sell insurance
`
`policies in New York State.
`
`5.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “5”, except admit that defendant Utica National Assurance Company is an insurance
`
`company domiciled within the State of New York and is authorized to sell insurance policies in
`
`New York State.
`
`6.
`
`These Defendants admit the allegations contained in paragraph “6” of the
`
`plaintiffs’ verified complaint.
`
`7.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “7” of the plaintiffs’ verified complaint.
`
`8.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “8” of the plaintiffs’ verified complaint.
`
`9.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “9” of the plaintiffs’ verified complaint.
`
`10.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “10” of the plaintiffs’ verified complaint.
`
`11.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “11” of the plaintiffs’ verified complaint.
`
`12.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “12” of the plaintiffs’ verified complaint.
`
`
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`2
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`2 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`13.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “13” of the plaintiffs’ verified complaint.
`
`14.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “14” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`15.
`
`These Defendants deny the allegations contained in paragraph “15” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`16.
`
`These Defendants deny the allegations contained in paragraph “16” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`17.
`
`These Defendants deny the allegations contained in paragraph “17” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`18. As to paragraph “18” of the plaintiff’s verified complaint, the allegations are
`
`not directed at these defendants and therefore no response is required. To the extent a response is
`
`required, these defendants deny the allegations and refer all questions of law to the court.
`
`19. As to paragraph “19” of the plaintiff’s verified complaint, the allegations are
`
`not directed at these defendants and therefore no response is required. To the extent a response is
`
`required, these defendants deny the allegations and refer all questions of law to the court.
`
`20.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “20” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`21.
`
`These Defendants deny the allegations contained in paragraph “21” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`
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`3
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`22.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “22” of the plaintiffs’ verified complaint.
`
`23.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “23” of the plaintiffs’ verified complaint.
`
`24.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “24” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`25.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “25” of the plaintiffs’ verified complaint.
`
`26.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “26” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`27.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “27” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`28.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “28” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`29.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “29” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`
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`4
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`4 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`30.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “30” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`31.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “31” of the plaintiffs’ verified complaint.
`
`32.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “32” of the plaintiffs’ verified complaint.
`
`33.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “33” of the plaintiffs’ verified complaint.
`
`34.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “34” of the plaintiffs’ verified complaint.
`
`35.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “35” of the plaintiffs’ verified complaint.
`
`36.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “36” of the plaintiffs’ verified complaint.
`
`37.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “37” of the plaintiffs’ verified complaint.
`
`38.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “38” of the plaintiffs’ verified complaint.
`
`39.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “39” of the plaintiffs’ verified complaint.
`
`40.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “40” of the plaintiffs’ verified complaint.
`
`
`
`5
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`5 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`41.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “41” of the plaintiffs’ verified complaint.
`
`42.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “42” of the plaintiffs’ verified complaint.
`
`43.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “43” of the plaintiffs’ verified complaint.
`
`44.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “44” of the plaintiffs’ verified complaint.
`
`45.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “45” of the plaintiffs’ verified complaint.
`
`46.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “46” of the plaintiffs’ verified complaint.
`
`47.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “47” of the plaintiffs’ verified complaint.
`
`48.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “48” of the plaintiffs’ verified complaint.
`
`49.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “49” of the plaintiffs’ verified complaint.
`
`50.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “50” of the plaintiffs’ verified complaint.
`
`51.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “51”, except admit that Utica provided a letter to the District dated November 20,
`
`2020, whose terms speak for themselves.
`
`
`
`6
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`6 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`52.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “52”, except admit that Utica provided a letter to the District dated November 20,
`
`2020, whose terms speak for themselves.
`
`53.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “53”, except admit that Utica provided a letter to the District dated November 20,
`
`2020, whose terms speak for themselves.
`
`54.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “54”, except admit that Utica provided a letter to the District dated November 20,
`
`2020, whose terms speak for themselves.
`
`55.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “55”, except admit that Utica provided a letter to the District dated November 20,
`
`2020, whose terms speak for themselves.
`
`56.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “56” of the plaintiffs’ verified complaint.
`
`57.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “57” of the plaintiffs’ verified complaint.
`
`58.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “58” of the plaintiffs’ verified complaint.
`
`59.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “59” of the plaintiffs’ verified complaint.
`
`60.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “60” of the plaintiffs’ verified complaint.
`
`
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`7
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`7 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`61.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “61” of the plaintiffs’ verified complaint.
`
`62.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “62” of the plaintiffs’ verified complaint.
`
`63.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “63” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`64.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “64” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`65.
`
`These Defendants deny the allegations contained in paragraph “65” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`66.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “66” of the plaintiffs’ verified complaint.
`
`67.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “67” of the plaintiffs’ verified complaint.
`
`68.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “68”, except admit that Utica issued a letter to plaintiff denying coverage but
`
`agreeing to provide plaintiff with a courtesy defense in the underlying action.
`
`69.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “69”, except admit that Utica issued a letter to plaintiff denying coverage but
`
`agreeing to provide plaintiff with a courtesy defense in the underlying action.
`
`
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`8
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`8 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`70.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “70”, except admit that Utica issued a letter to plaintiff denying coverage but
`
`agreeing to provide plaintiff with a courtesy defense in the underlying action.
`
`71.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “71”, except admit that Utica issued a letter to plaintiff denying coverage but
`
`agreeing to provide plaintiff with a courtesy defense in the underlying action.
`
`72.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “72”, except admit that Utica issued a letter to plaintiff denying coverage but
`
`agreeing to provide plaintiff with a courtesy defense in the underlying action.
`
`73.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “73”, except admit that Utica provided a courtesy defense and disclaimed coverage
`
`for defense and indemnification.
`
`74.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “74” of the plaintiffs’ verified complaint.
`
`75.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “75” of the plaintiffs’ verified complaint.
`
`76.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “76” of the plaintiffs’ verified complaint.
`
`77.
`
`These Defendants deny the allegations contained in paragraph “77” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`78.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “78” of the plaintiffs’ verified complaint.
`
`
`
`9
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`9 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`79.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “79” of the plaintiffs’ verified complaint.
`
`80.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “80” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`81.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “81” of the plaintiffs’ verified complaint.
`
`82.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “82” of the plaintiffs’ verified complaint.
`
`83.
`
`These Defendants deny having knowledge and information sufficient to form a
`
`belief as to the allegations contained in paragraph “83” of the plaintiffs’ verified complaint, and
`
`respectfully refer all questions of law to the court.
`
`84.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “84” of the plaintiffs’ verified complaint.
`
`85.
`
`These Defendants deny the allegations contained in paragraph “85” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`86.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “86” of the plaintiffs’ verified complaint.
`
`AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
`
`87.
`
`These Defendants repeat, reallege and reaffirm each and every admission,
`
`denial or denial of knowledge or information sufficient to form a belief as to those allegations
`
`repeated and realleged in paragraphs “1” through “86” as if more specifically set forth in answer
`
`to paragraph “87” of the plaintiffs’ verified complaint.
`
`
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`10
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`10 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`88.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “88” of the plaintiffs’ verified complaint.
`
`89.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “89” of the plaintiffs’ verified complaint.
`
`90.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “90” of the plaintiffs’ verified complaint.
`
`91.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “91” of the plaintiffs’ verified complaint.
`
`92.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “92” of the plaintiffs’ verified complaint.
`
`93.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “93” of the plaintiffs’ verified complaint.
`
`94.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “94” of the plaintiffs’ verified complaint.
`
`95.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “95” of the plaintiffs’ verified complaint.
`
`96.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “96” of the plaintiffs’ verified complaint.
`
`97.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “97” of the plaintiffs’ verified complaint.
`
`98.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “98”, except admit that on July 20, 2021, Utica issued a letter to plaintiffs denying
`
`coverage.
`
`
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`11
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`11 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`99.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “99”, except admit that on July 20, 2021, Utica issued a letter to plaintiffs denying
`
`coverage.
`
`100.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “100” of the plaintiffs’ verified complaint.
`
`101.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “101” of the plaintiffs’ verified complaint.
`
`102.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “102”, except admit that on July 20, 2021, Utica issued a letter to plaintiffs denying
`
`coverage.
`
`103.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “103” of the plaintiffs’ verified complaint.
`
`104.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “104” of the plaintiffs’ verified complaint.
`
`105.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “105” of the plaintiffs’ verified complaint.
`
`106.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “106” of the plaintiffs’ verified complaint.
`
`107.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “107” of the plaintiffs’ verified complaint, and respectfully refers any questions of
`
`law to the court.
`
`
`
`12
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`12 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`108.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “108” of the plaintiffs’ verified complaint, and respectfully refers any questions of
`
`law to the court.
`
`109.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “109” of the plaintiffs’ verified complaint.
`
`110.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “110” of the plaintiffs’ verified complaint.
`
`111.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “111” of the plaintiffs’ verified complaint.
`
`112.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “112” of the plaintiffs’ verified complaint.
`
`113.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “113” of the plaintiffs’ verified complaint.
`
`114.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “114” of the plaintiffs’ verified complaint.
`
`115.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “115” of the plaintiffs’ verified complaint.
`
`AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
`
`116.
`
`These Defendants repeat, reallege and reaffirm each and every admission,
`
`denial or denial of knowledge or information sufficient to form a belief as to those allegations
`
`repeated and realleged in paragraphs “1” through “115” as if more specifically set forth in answer
`
`to paragraph “116” of the plaintiffs’ verified complaint.
`
`
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`13
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`13 of 22
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 02:34 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. E23-01101
`
`RECEIVED NYSCEF: 11/15/2023
`
`117.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “117” of the plaintiffs’ verified complaint.
`
`118.
`
`These Defendants deny the allegations contained in paragraph “118” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`119.
`
`These Defendants deny the allegations contained in paragraph “119” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`120.
`
`These Defendants deny the allegations contained in paragraph “120” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`121.
`
`These Defendants deny the allegations contained in paragraph “121” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`122.
`
`These Defendants deny the allegations contained in paragraph “122” of the
`
`plaintiffs’ verified complaint and respectfully refer all questions of law to the court.
`
`123.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “123” of the plaintiffs’ verified complaint.
`
`124.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “124” of the plaintiffs’ verified complaint.
`
`125.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “125” of the plaintiffs’ verified complaint.
`
`126.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “126” of the plaintiffs’ verified complaint.
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`127.
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`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “127” of the plaintiffs’ verified complaint.
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`INDEX NO. E23-01101
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`RECEIVED NYSCEF: 11/15/2023
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`128.
`
`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “128” of the plaintiffs’ verified complaint.
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`129.
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`These Defendants deny upon information and belief the allegations contained
`
`in paragraph “129” of the plaintiffs’ verified complaint.
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`130.
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`These Defendants deny upon information and belief the allegations contained
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`in paragraph “130” of the plaintiffs’ verified complaint.
`
`AS AND FOR A FIRST SEPARATE AND COMPLETE
`AFFIRMATIVE DEFENSE, THESE DEFENDANTS ALLEGE,
`UPON INFORMATION AND BELIEF:
`
`131.
`
`The Complaint, as drawn, fails to state a cause of action.
`
`
`
`AS AND FOR A SECOND, SEPARATE AND COMPLETE
`AFFIRMATIVE DEFENSE, THESE DEFENDANTS ALLEGE,
`UPON INFORMATION AND BELIEF:
`
`132. Defendant’s disclaimer letters timely and properly disclaim coverage for the
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`District in the Underlying Action.
`
`AS AND FOR A THIRD, SEPARATE AND COMPLETE
`AFFIRMATIVE DEFENSE, THESE DEFENDANTS ALLEGE,
`UPON INFORMATION AND BELIEF:
`
`The plaintiffs in the Underlying Action fail to state a cause of action for which
`
`133.
`
`this Court can grant relief.
`
`AS AND FOR A FOURTH, SEPARATE AND COMPLETE
`AFFIRMATIVE DEFENSE, THESE DEFENDANTS ALLEGE,
`UPON INFORMATION AND BELIEF:
`
`The plaintiffs in the Underlying Actions failed to allege bodily injury resulting
`
`134.
`
`from an occurrence and therefore the Underlying Action does not trigger coverage under the
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`policies of insurance issued by Defendants.
`
` The Underlying Action alleges that the District was specifically notified of
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`
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`INDEX NO. E23-01101
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`RECEIVED NYSCEF: 11/15/2023
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`the abuse alleged therein and, therefore, the abuse was not an act of fortuity from the standpoint
`
`of the District.
`
`AS AND FOR A FIFTH, SEPARATE AND COMPLETE
`AFFIRMATIVE DEFENSE, THESE DEFENDANTS ALLEGE,
`UPON INFORMATION AND BELIEF:
`
`Policies contain conditions precedent to coverage requiring that the District
`
`135.
`
`notify Defendant of an occurrence as soon as practicable.
`
`The Underlying Action alleges that the District had notice of the abuse
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`contemporaneous to its alleged occurrence; the District, however, failed to timely notify the
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`Defendants pursuant to the terms of the insurance contracts.
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`The District did not provide notice of an occurrence as soon as practicable.
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`Coverage for the Underlying Action is therefore barred by the District’s failure
`
`to comply with the Policies’ conditions precedent to coverage.
`
`AS AND FOR A SIXTH, SEPARATE AND COMPLETE
`AFFIRMATIVE DEFENSE, THESE DEFENDANTS ALLEGE,
`UPON INFORMATION AND BELIEF:
`
`136.
`
`Upon information and belief, the Policies contain an exclusion for bodily
`
`
`
`injury expected or intended by the insured.
`
`The Underlying Action alleges that the District had specific knowledge of the
`
`sexual abuse of the underlying plaintiff contemporaneous to it occurring.
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`As the District had actual knowledge of the underlying plaintiff’s abuse, it had
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`a reasonable expectation that the underlying plaintiff would sustain the injuries allegedly
`
`resulting from the abuse.
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`
`
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`INDEX NO. E23-01101
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`RECEIVED NYSCEF: 11/15/2023
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`AS AND FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF SCHOOL
`DISTRICT: LATE NOTICE OF CLAIM
`
`137. Upon information and belief, the district was placed on notice at the time of the
`
`alleged abuse or at an unspecified date thereafter, years before the District advised the Defendants
`
`of the alleged sexual abuse.
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`138. Upon information and belief, the District was placed on notice that the
`
`perpetrator had sexually abused the underlying plaintiff.
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`139.
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`The provision of notice as soon as practicable of an occurrence by the District
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`to Defendants is a condition precedent to coverage under the policies.
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`140. Despite its knowledge of the alleged abuse, the District failed to give notice of
`
`the incident, occurrence, or claims as soon as was practicable as required in the policies the
`
`District alleges were issued to it by the Defendants.
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`141.
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`The provision of notice by the District to the Defendant, when it occurred, was
`
`not as soon as practicable.
`
`142. By failing to provide notice as soon as practicable to the Defendant, the
`
`District failed to satisfy a condition precedent to coverage under the policies and breached its
`
`obligations under the policy or policies.
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`143. Accordingly, Defendants are under no obligation to afford coverage to
`
`Plaintiffs under the policies for a defense or indemnity for the allegations in the Underlying
`
`Action.
`
`AS AND FOR A SECOND COUNTERCLAIM AGAINST PLAINTIFF SCHOOL
`DISTRICT: THE SEXUAL ABUSE OF A MINOR IS NOT AN OCCURRENCE OR IS
`OTHERWISE EXCLUDED
`
`The sexual abuse of the underlying plaintiff was intentional.
`
`144.
`
`145.
`
`The sexual abuse of a minor, by its very nature, is not and cannot be accidental.
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`146. As such, the alleged sexual abuse is not an “occurrence” under the policies
`
`which would have been in effect in or about the period of alleged sexual abuse.
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`147.
`
`Since the conduct in question was intentional and not accidental, the sexual
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`abuse of a minor does not qualify as an “occurrence” under the policies, and as such no coverage
`
`exists for the allegations in the Underlying Action.
`
`148.
`
`Furthermore, alleged policies upon information and belief, during the period of
`
`alleged abuse, contained an exclusion to coverage for bodily injury that is expected or intended
`
`from the standpoint of an insured; upon information and belief, the underlying plaintiffs’ alleged
`
`sexual abuse was open and obvious to the faculty, staff, and administrators of the School District.
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`149. Upon information and belief, the School District had actual and/or constructive
`
`knowledge that the perpetrator was sexually abusing the underlying plaintiff.
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`150.
`
`In knowing that the perpetrator was sexually abusing the underlying plaintiff,
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`the District reasonably expected that the underlying plaintiff would be sexually abused.
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`151.
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`The Policy’s exclusion for expected or intended injury, therefore, precludes
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`coverage for