Case 7:13-cv-04459-KMK Document 2

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------------x NEFTALI RIVERA AND ELIZABETH RIVERA, AS PARENTS AND NATURAL GUARDIANS OF N. R., AN INFANT UNDER THE AGE OF FOURTEEN YEARS OLD, NEFTALI RIVERA INDIVIDUALLY and ELIZABETH RIVERA, INDIVIDUALLY, Plaintiffs, -againstCARMEL CENTRAL SCHOOL DISTRICT, KAREN BARYSHYAN, TEACHER AND KAREN BARYSHYAN, INDIVIDUALLY, Defendants. ---------------------------------------------------------------------x Defendants, CARMEL CENTRAL SCHOOL

Docket No.: 13 CV- 04459 (KMK)(PED)

ANSWER

DISTRICT

and

KAREN

BARYSHYAN, by their attorneys, MIRANDA SAMBURSKY SLONE SKLARIN VERVENIOTIS LLP, answering the plaintiffs' verified complaint (the complaint): 1. Deny each and every allegation contained in paragraph 1 of the

complaint, except admit that the plaintiff N.R. is an infant under the age of fourteen years of age. 2. Deny having knowledge and information sufficient to form a belief as to

the truth of the allegations contained in paragraph 2 of the complaint. 3. Deny having knowledge and information sufficient to form a belief as to

the truth of the allegations contained in paragraph 3 of the complaint. 4. complaint. 5. complaint. Admit each and every allegation contained in paragraph 5 of the Admit each and every allegation contained in paragraph 4 of the

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6.

Deny each and every allegation contained in paragraph 6 of the

complaint, except admit that in the fall of 2011, at age six, Plaintiff N.R. (hereinafter N.R.) was a first grade student at Carmel Central School District, Kent Elementary School. 7. complaint. 8. complaint. 9. complaint. 10. complaint. 11. complaint. 12. complaint. 13. complaint. 14. Deny each and every allegation contained in paragraph 14 of the Deny each and every allegation contained in paragraph 13 of the Deny each and every allegation contained in paragraph 12 of the Deny each and every allegation contained in paragraph 11 of the Deny each and every allegation contained in paragraph 10 of the Deny each and every allegation contained in paragraph 9 of the Deny each and every allegation contained in paragraph 8 of the Deny each and every allegation contained in paragraph 7 of the

complaint, except admit that Plaintiff Elizabeth Rivera sent an email on October 19, 2012 and begs leave to refer to it for its import, if any, at the time of trial. 15. complaint. Deny each and every allegation contained in paragraph 15 of the

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16. complaint. 17. complaint. 18. complaint. 19.

Deny each and every allegation contained in paragraph 16 of the

Deny each and every allegation contained in paragraph 17 of the

Deny each and every allegation contained in paragraph 18 of the

Deny each and every allegation contained in paragraph 19 of the

complaint, except admit that the meeting was attended by Karen Baryshyan, Principal Deborah Weisel, Elizabeth Rivera and Neftali Rivera . 20. complaint. 21. Deny each and every allegation contained in paragraph 21 of the spoke to Deny each and every allegation contained in paragraph 20 of the

complaint, except admit that Plaintiffs Elizabeth Rivera and Neftali Rivera principal Weisel privately. 22. complaint. 22. complaint. 23. complaint. 24.

Deny each and every allegation contained in paragraph 22 of the

Deny each and every allegation contained in paragraph 22 of the

Deny each and every allegation contained in paragraph 23 of the

Deny each and every allegation contained in paragraph 24 of the

complaint, except admit that N.R. is doing well in his new reading class.

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ANSWERING THE FIRST CAUSE OF ACTION 25. As to paragraph 25, repeats the denials set forth above in answer to the

allegations contained in paragraphs of the verified complaint numbered 1 through 24. 26. complaint. 27. complaint. 28. complaint. 29. complaint. 30. complaint. ANSWERING THE SECOND CAUSE OF ACTION 31. As to paragraph 31, repeats the denials set forth above in answer to the Deny each and every allegation contained in paragraph 30 of the Deny each and every allegation contained in paragraph 29 of the Deny each and every allegation contained in paragraph 28 of the Deny each and every allegation contained in paragraph 27 of the Deny each and every allegation contained in paragraph 26 of the

allegations contained in paragraphs of the verified complaint numbered 1 through 30. 32. complaint. 33. complaint. 34. Deny each and every allegation contained in paragraph 34 of the Deny each and every allegation contained in paragraph 33 of the Deny each and every allegation contained in paragraph 32 of the

complaint and respectfully refer all questions of law to the Court for adjudication. 35. complaint. 4 Deny each and every allegation contained in paragraph 35 of the

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36. complaint. 37. complaint.

Deny each and every allegation contained in paragraph 36 of the

Deny each and every allegation contained in paragraph 37 of the

ANSWERING THE THIRD CAUSE OF ACTION 38. As to paragraph 38, repeats the denials set forth above in answer to the

allegations contained in paragraphs of the verified complaint numbered 1 through 37. 39. complaint. 40. complaint. 41. Deny each and every allegation contained in paragraph 41 of the Deny each and every allegation contained in paragraph 40 of the Deny each and every allegation contained in paragraph 39 of the

complaint and respectfully refer all questions of law to the Court for adjudication. 42. complaint. 43. complaint. 44. complaint. ANSWERING THE FOURTH CAUSE OF ACTION 45. As to paragraph 45, repeats the denials set forth above in answer to the Deny each and every allegation contained in paragraph 44 of the Deny each and every allegation contained in paragraph 43 of the Deny each and every allegation contained in paragraph 42 of the

allegations contained in paragraphs of the verified complaint numbered 1 through 44. 46. Deny each and every allegation contained in paragraph 46 of the

complaint and respectfully refer all questions of law to the Court for adjudication. 5

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47. complaint. 48. complaint. 49. complaint.

Deny each and every allegation contained in paragraph 47 of the

Deny each and every allegation contained in paragraph 48 of the

Deny each and every allegation contained in paragraph 49 of the

ANSWERING THE FIFTH CAUSE OF ACTION 50. As to paragraph 50, repeats the denials set forth above in answer to the

allegations contained in paragraphs of the verified complaint numbered 1 through 49. 51. Deny each and every allegation contained in paragraph 51 of the

complaint and respectfully refer all questions of law to the Court for adjudication. 52. complaint. 53. complaint. 54. complaint. 55. complaint. ANSWERING THE SIXTH CAUSE OF ACTION 56. As to paragraph 56, repeats the denials set forth above in answer to the Deny each and every allegation contained in paragraph 55 of the Deny each and every allegation contained in paragraph 54 of the Deny each and every allegation contained in paragraph 53 of the Deny each and every allegation contained in paragraph 52 of the

allegations contained in paragraphs of the verified complaint numbered 1 through 55. 57. Deny each and every allegation contained in paragraph 57 of the

complaint and respectfully refer all questions of law to the Court for adjudication. 6

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58. complaint. 59. complaint. 60. complaint. 61. complaint.

Deny each and every allegation contained in paragraph 58 of the

Deny each and every allegation contained in paragraph 59 of the

Deny each and every allegation contained in paragraph 60 of the

Deny each and every allegation contained in paragraph 61 of the

AS AND FOR A FIRST AFFIRMATIVE DEFENSE 62. The Complaint fails to state a cause of action against Defendants upon

which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 63. limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 64. Defendants are entitled to discretionary function immunity. This action is barred, in whole or in part, by the applicable statutes of

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 65. Plaintiffs claims are barred or offset by its failure to mitigate any claim

for loss or damages. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 66. Defendants deny that plaintiffs have suffered any pain and suffering,

emotional, psychological or physical damage whatsoever as a result of actions taken by answering defendants, and any pain and suffering, emotional, psychological or physical condition suffered by plaintiffs is attributable to causes wholly independent of answering 7

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defendants actions. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 67. If plaintiffs are entitled to compensatory damages, which defendants deny,

any such award of compensatory damages is limited by the applicable statutory amount. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 68. Any injuries or damages suffered by the plaintiffs were not caused by a

negligent act or omission by these answering defendants, or any individual or entity acting under these answering defendants direction or control. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 69. Upon information and belief, any past or future costs or expenses incurred,

or to be incurred, by plaintiffs for medical care, dental care, custodial care, or rehabilitative services, loss of earnings, or other economic loss has been, or will with reasonable certainty be, replaced or indemnified, in whole or in part, from a collateral source, as defined in CPLR 4545(c), and, consequently, if any damages are recoverable against these answering defendants, the amount of such damages shall be diminished by the amount that plaintiffs have received, or shall receive, from the collateral source. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 70. If plaintiffs have been injured and damaged as alleged in the complaint,

such injury and damage were caused and contributed to by plaintiffs own conduct, negligence, carelessness, or want of care; and, if it be determined that plaintiffs are entitled to recovery herein as against answering defendants, such recovery should be apportioned between plaintiffs and answering defendants according to its relative responsibility therefor.

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AS AND FOR A TENTH AFFIRMATIVE DEFENSE 71. Plaintiffs equal protection claim is barred to the extent that defendants

took reasonable care to prevent and promptly correct any racially discriminatory behavior and plaintiffs unreasonably failed to take advantage of any preventive or corrective opportunities provided or to avoid harm otherwise. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 72. All actions taken by the Defendants with respect to plaintiffs were in good

faith and for legitimate non-discriminatory reasons. WHEREFORE, defendants request judgment dismissing the complaint and denying all relief requested therein, together with such other and further relief as the Court deems just and proper.

Dated: Mineola, New York July 5, 2013

MIRANDA SAMBURSKY SLONE SKLARIN VERVENIOTIS LLP Attorneys for Defendants s/ By:_____________________________ Michael A. Miranda (MAM-6413) Brian Condon (BC-2461) 240 Mineola Boulevard Mineola, New York 11501 (516) 741-7676 Our File No.: 13-012

TO: THE LAW OFFICE OF RICK S. COWLE Attorneys for Plaintiffs 95 Gleneida Avenue Carmel, NY 10512 (845) 225-3026