FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PM
`NYSCEF DOC. NO. 9
`
`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
`
`STATE OF NEW YORK
`SUPREME COURT
`
`
`
`
`COUNTY OF RENSSELAER
`
`
`T.T.,
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`-against-
`
`
`
`
`
`
`
`Defendants.
`
`
`HOOSIC VALLEY CENTRAL SCHOOL DISTRICT,
`
`
`
`
`ANSWER AND AFFIRMATIVE
`DEFENSES
`
`Index No.: EF2021-269598
`Hon. L. Michael Mackey, J.S.C.
`
`
`
`
`
`
`
`ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
`
`Defendant Hoosic Valley Central School District (“District”), by and through its
`
`attorneys, Girvin & Ferlazzo, P.C., as and for its Answer and Affirmative Defenses to Plaintiff’s
`
`August 9, 2021 Complaint in the above-referenced matter (“Complaint”), alleges the following
`
`upon information and belief:
`
`1.
`
`Denies the allegations contained in paragraph “1” of the Complaint and leaves all
`
`questions of law to the Court.
`
`2.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “2” of the Complaint.
`
`3.
`
`Admits that Hoosic Valley Central School District is a public school district in the
`
`State of New York located at 2 Pleasant Avenue, Schaghticoke, New York 12154 and that the
`
`District operates the Hoosic Valley Central School, denies knowledge or information sufficient to
`
`form a belief as to the remaining allegations contained in paragraph “3” of the Complaint, and
`
`leaves all questions of law to the Court.
`
`4.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “4” of the Complaint.
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`1
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`1 of 9
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`NYSCEF DOC. NO. 9
`
`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
`
`STATE OF NEW YORK
`SUPREME COURT
`
`
`
`
`COUNTY OF RENSSELAER
`
`
`T.T.,
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`-against-
`
`
`
`
`
`
`
`Defendants.
`
`
`HOOSIC VALLEY CENTRAL SCHOOL DISTRICT,
`
`
`
`
`ANSWER AND AFFIRMATIVE
`DEFENSES
`
`Index No.: EF2021-269598
`Hon. L. Michael Mackey, J.S.C.
`
`
`
`
`
`
`
`ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
`
`Defendant Hoosic Valley Central School District (“District”), by and through its
`
`attorneys, Girvin & Ferlazzo, P.C., as and for its Answer and Affirmative Defenses to Plaintiff’s
`
`August 9, 2021 Complaint in the above-referenced matter (“Complaint”), alleges the following
`
`upon information and belief:
`
`1.
`
`Denies the allegations contained in paragraph “1” of the Complaint and leaves all
`
`questions of law to the Court.
`
`2.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “2” of the Complaint.
`
`3.
`
`Admits that Hoosic Valley Central School District is a public school district in the
`
`State of New York located at 2 Pleasant Avenue, Schaghticoke, New York 12154 and that the
`
`District operates the Hoosic Valley Central School, denies knowledge or information sufficient to
`
`form a belief as to the remaining allegations contained in paragraph “3” of the Complaint, and
`
`leaves all questions of law to the Court.
`
`4.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “4” of the Complaint.
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`1
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`1 of 9
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`FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PM
`NYSCEF DOC. NO. 9
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`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
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`5.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “5” of the Complaint and leaves all questions of law to the Court.
`
`6.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “6” of the Complaint and leaves all questions of law to the Court.
`
`7.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “7” of the Complaint and leaves all questions of law to the Court.
`
`8.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “8” of the Complaint and leaves all questions of law to the Court.
`
`9.
`
`Denies the allegations contained in paragraph “9” of the Complaint and leaves all
`
`questions of law to the Court.
`
`10.
`
`Denies the allegations contained in paragraph “10” of the Complaint and leaves all
`
`questions of law to the Court.
`
`11.
`
`Denies the allegations contained in paragraph “11” of the Complaint and leaves all
`
`questions of law to the Court.
`
`12.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “12” of the Complaint and leaves all questions of law to the Court.
`
`13.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “13” of the Complaint and leaves all questions of law to the Court.
`
`14.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “14” of the Complaint and leaves all questions of law to the Court.
`
`15.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “15” of the Complaint and leaves all questions of law to the Court.
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`2
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`2 of 9
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`FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PM
`NYSCEF DOC. NO. 9
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`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
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`16.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “16” of the Complaint.
`
`17.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “17” of the Complaint.
`
`18.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “18” of the Complaint.
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`19.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “19” of the Complaint and leaves all questions of law to the Court.
`
`20.
`
`Denies knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph “20” of the Complaint.
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`21.
`
`22.
`
`23.
`
`24.
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`25.
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`26.
`
`27.
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`28.
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`29.
`
`30.
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`31.
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`Denies the allegations contained in paragraph “21” of the Complaint.
`
`Denies the allegations contained in paragraph “22” of the Complaint.
`
`Denies the allegations contained in paragraph “23” of the Complaint.
`
`Denies the allegations contained in paragraph “24” of the Complaint.
`
`Denies the allegations contained in paragraph “25” of the Complaint.
`
`Denies the allegations contained in paragraph “26” of the Complaint.
`
`Denies the allegations contained in paragraph “27” of the Complaint.
`
`Denies the allegations contained in paragraph “28” of the Complaint.
`
`Denies the allegations contained in paragraph “29” of the Complaint.
`
`Denies the allegations contained in paragraph “30” of the Complaint.
`
`Denies the allegations contained in paragraph “31” of the Complaint, including all
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`subparagraphs thereof.
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`32.
`
`Denies the allegations contained in paragraph “32” of the Complaint.
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`3
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`3 of 9
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`FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PM
`NYSCEF DOC. NO. 9
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`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
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`33.
`
`34.
`
`35.
`
`36.
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`Denies the allegations contained in paragraph “33” of the Complaint.
`
`Denies the allegations contained in paragraph “34” of the Complaint.
`
`Denies the allegations contained in paragraph “35” of the Complaint.
`
`Denies the allegations contained in paragraph “36” of the Complaint and leaves all
`
`questions of law to the Court.
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`37.
`
`The District incorporates by reference its responses to the allegations contained in
`
`paragraphs “1” through “36” of the Complaint as if fully set forth herein.
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`38.
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`39.
`
`40.
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`41.
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`42.
`
`43.
`
`44.
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`45.
`
`46.
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`Denies the allegations contained in paragraph “38” of the Complaint.
`
`Denies the allegations contained in paragraph “39” of the Complaint.
`
`Denies the allegations contained in paragraph “40” of the Complaint.
`
`Denies the allegations contained in paragraph “41” of the Complaint.
`
`Denies the allegations contained in paragraph “42” of the Complaint.
`
`Denies the allegations contained in paragraph “43” of the Complaint.
`
`Denies the allegations contained in paragraph “44” of the Complaint.
`
`Denies the allegations contained in paragraph “45” of the Complaint.
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`The jury demand clause of the Complaint does not contain an allegation. To the
`
`extent it does, Defendant denies knowledge or information sufficient to form a belief as to the
`
`allegations contained in the jury demand clause of the Complaint and leaves all questions of law
`
`to the Court.
`
`47.
`
`48.
`
`Denies the WHEREFORE clause of the Complaint.
`
`Denies any remaining allegations of the Complaint not specifically admitted herein.
`
`
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`4
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`4 of 9
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`FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PM
`NYSCEF DOC. NO. 9
`
`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
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`AFFIRMATIVE AND OTHER DEFENSES
`
`In further response to the Complaint, the District hereby asserts the following affirmative
`
`and other defenses, without conceding that it bears the burden of persuasion as to any of them
`
`except those deemed affirmative defenses by law, regardless of how such defenses are
`
`denominated herein. Nor does the District admit that the Plaintiff is relieved of his burden to prove
`
`each and every element of his claims and the damages, if any, to which he claims to be entitled.
`
`As for its defenses, the District reasserts and reincorporates as if fully set forth herein its responses
`
`above to the Complaint.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`49.
`
`Some or all of Plaintiff’s claims fail to state causes of action upon which relief can
`
`be granted.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`50.
`
`Some or all of Plaintiff’s claims are barred by the applicable statute of limitations.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`51.
`
`Some or all of Plaintiff’s claims are barred by the doctrines of latches, waiver and/or
`
`estoppel.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`52.
`
`Some or all of Plaintiff’s claims are barred by Plaintiff’s failure to comply with the
`
`provisions of Section 3813 of the New York Education Law.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`53.
`
`Any injuries suffered by Plaintiff were caused by the superseding and intervening
`
`acts, fault, omissions, negligence, or other culpable conduct of others over whom the District had
`
`5
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`5 of 9
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`FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PM
`NYSCEF DOC. NO. 9
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`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
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`no control, and not from any act, omission, negligence, or culpable conduct on the part of the
`
`District.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`54.
`
`The District did not owe a legal duty to Plaintiff at all times alleged in the
`
`Complaint, or if it owed a legal duty, it did not breach that duty.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`55.
`
`Plaintiff’s injuries, if any, were caused in whole or in part by the acts or omissions
`
`of parties over whom the District had no control.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`56.
`
`If the District is found liable for the damages sustained by Plaintiff, any liability
`
`shall be limited to its equitable share of total liability as provided by Article 16 of New York’s
`
`Civil Practice Law Rules.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`57.
`
`The District is entitled to the operation of the limited liability provisions under
`
`CPLR §§ 1600, 1601, 1602, and 1603.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`58.
`
`Plaintiff’s recovery should be limited to the extent Plaintiff has received payment
`
`through any collateral sources, pursuant to CPLR § 4545.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`59.
`
`Any alleged omission or failure to act was not the proximate cause, legal cause,
`
`cause in fact, or substantial factor in bringing about Plaintiff’s alleged injuries or damages.
`
`
`
`
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`6
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`6 of 9
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`FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PM
`NYSCEF DOC. NO. 9
`
`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`60.
`
`The District had no actual, constructive, or imputed notice, whether written or oral,
`
`of any danger, defect, or any inappropriate acts or behavior.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`61.
`
`Plaintiff’s allegations include matters allegedly caused by the intentional actions of
`
`Jack Scerbo and for which the District is not legally liable.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`62.
`
`The Child Victims Act is unconstitutional.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`63.
`
`Plaintiff’s damages, if any, were caused by Plaintiff’s own actions or omissions.
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`64.
`
`Plaintiff’s damages were caused by Plaintiff’s failure to take reasonable actions to
`
`avoid and/or mitigate damages.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`65.
`
`The District did not create any alleged danger, hazard, or defective condition
`
`alleged to have caused Plaintiff’s injuries.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`66.
`
`Plaintiff’s claims are barred, in whole or in part, because the District exercised due
`
`care and conducted itself in accordance with the applicable customs and practices at that time, and
`
`the District complied with all then-existing and applicable federal, state, and local statutory and
`
`regulatory requirements.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
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`67.
`
`The District is entitled to an offset under General Obligations Law § 15-108.
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`7
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`7 of 9
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
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`68.
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`The District is immune from any claim for punitive damages.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`69.
`
`The Complaint and each cause of action thereof, fails to set forth facts sufficiently
`
`detailed so as to "give the court and 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 of defense." See CPLR 3013.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`70.
`
`The District reserves the right to assert further defenses that may become known
`
`during discovery.
`
`WHEREFORE, the District requests that the Complaint be dismissed and for such other
`
`and further relief in the District's favor as the Court deems appropriate.
`
`Dated: September 2, 2021
`Albany, New York
`
`GIRVIN & FERLAZZO, P.C.
`
`gerafd, Esq.
`Patrick':
`Daniel S. L. Rubin, Esq.
`Bonnie R. Watson, Esq.
`Ashley M. Meza, Esq.
`Attorneys for Defendant Hoosic Valley
`Central School District
`20 Corporate Woods Blvd., 2nd Floor
`Albany, New York 12211
`Telephone: (518) 462-0300
`pjf@girvinlaw.com
`dsr@girvinlaw.com
`brw@girvinlaw.com
`amm@girvinlaw.com
`
`B :
`
`8
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`FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PMINDEX NO. EF2021-269598NYSCEF DOC. NO. 9RECEIVED NYSCEF: 09/02/20218 of 9
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`FILED: RENSSELAER COUNTY CLERK 09/02/2021 04:30 PM
`NYSCEF DOC. NO. 9
`
`INDEX NO. EF2021-269598
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`RECEIVED NYSCEF: 09/02/2021
`
`TO: HERMAN LAW
`Jeff Herman, Esq.
`Alexandra Slater, Esq.
`Attorneys for Plaintiff
`434 W. 33rd St., Penthouse
`New York, NY 10001
`(212) 390-0100
`jherman@hermanlaw.com
`aslater@hermanlaw.com
`
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`9 of 9
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