FILED: ERIE COUNTY CLERK 09/30/2019 04:49 PM INDEX NO.

802313/2019
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 09/30/2019

STATE OF NEW YORK

SUPREME COURT : COUNTY OF ERIE

GAIL HOLLER-KENNEDY f/k/a GAIL ELIZABETH

HOLLER,

Plaintiff, ANSWER TO FIRST

vs. AMENDED COMPLAINT

Index No.: 802313/2019

THE DIOCESE OF BUFFALO, N.Y.; PROVINCE OF ST.
ANTHONY OF PADUA OF THE COVENTIONAL
FRANSCISCANS a/k/a ST. ANTHONY OF PADUA PROVINCE
OF THE CONVENTUAL FRANCISCANS; ST. ANTHONY OF
PADUA PROVINCE, FRANCISCAN FATHERS MINOR
CONVENTUAL, U.S.A.; FRANCISCAN FATHERS MINOR
CONVENTUALS OF BUFFALO, N.Y.; FRANCISCAN FATHERS
MINOR CONVENTUAL, ST. ANTHONY OF PADUA
PROVINCE; ORDER OF FRIARS MINOR CONVENTUAL, ST.
ANTHONY OF PADUA PROVINCE, U.S.A, INC.; OUR LADY
OF ANGELS PROVINCE, U.S.A; FRANCISCAN FRIARS-OUR
LADY OF THE ANGELS PROVINCE, INC.; and CARDINAL
O’HARA HIGH SCHOOL,

Defendants.

Defendants, PROVINCE OF ST. ANTHONY OF PADUA OF THE COVENTIONAL

RANSCISCANS a/k/a ST. ANTHONY OF PADUA PROVINCE OF THE CONVENTUAL

FRANCISCANS; ST. ANTHONY OF PADUA PROVINCE, FRANCISCAN FATHERS

MINOR CONVENTUAL, U.S.A.; FRANCISCAN FATHERS MINOR CONVENTUALS OF

BUFFALO, N.Y.; FRANCISCAN FATHERS MINOR CONVENTUAL, ST. ANTHONY OF

PADUA PROVINCE.; ORDER OF FRIARS MINOR CONVENTUAL, ST. ANTHONY OF

PADUA PROVINCE, U.S.A, INC.; OUR LADY OF ANGELS PROVINCE, U.S.A; and

FRANCISCAN FRIARS-OUR LADY OF THE ANGELS PROVINCE, INC. (hereinafter

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collectively “Defendants”), by and through their attorneys, Lippes Mathias Wexler Friedman

LLP, as and for their Answer to Plaintiff’s Amended Complaint, state as follows:

Jurisdiction and Venue

1. The allegations in Paragraph 1 constitute conclusions of law to which no response

is required. To the extent that a response is required, Defendants deny each and every allegation

in Paragraph 1.

2. The allegations in Paragraph 2 constitute conclusions of law to which no response

is required. To the extent that a response is required, Defendants deny each and every allegation

in Paragraph 2.

3. The allegations in Paragraph 3 constitute conclusions of law to which no response

is required. To the extent that a response is required, Defendants deny each and every allegation

in Paragraph 1.

Parties

4. Defendants deny knowledge or information sufficient to form a belief with regard

to the allegations in Paragraph 4 of the Amended Complaint, and therefore deny same.

5. Defendants deny knowledge or information sufficient to form a belief with regard

to the allegations in Paragraph 5 of the Amended Complaint, and therefore deny same.

6. Defendants deny the allegations in Paragraph 6 of the Amended Complaint.

7. Defendants admit that Defendant St. Anthony of Padua Province, Franciscan

Fathers Minor Conventual, U.S.A. is a New York not-for-profit corporation, and deny the

remaining allegations in Paragraph 7.

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8. Defendants admit that Defendant Franciscan Fathers Minor Conventuals of

Buffalo, N.Y. is a New York not-for-profit corporation, and deny the remaining allegations in

Paragraph 8.

9. Defendants admit that Defendant Franciscan Fathers Minor Conventual, St.

Anthony of Padua Province is a Massachusetts not-for-profit corporation, and deny the

remaining allegations in Paragraph 9.

10. Defendants admit that Defendant Order of Friars Minor Conventual, St. Anthony

of Padua Province, U.S.A., Inc. is a Maryland corporation, and deny the remaining allegations in

Paragraph 10.

11. Defendants deny the allegations in Paragraph 11 of the Amended Complaint.

12. Defendants admit that Defendant Franciscan Friars-Our Lady of the Angels

Province, Inc. is a Maryland Corporation, and deny the remaining allegations in Paragraph 12.

13. Defendants admit that Defendant Cardinal O’Hara High School is a Roman

Catholic high school in Tonawanda, Erie County, New York, but deny the remaining allegations

in Paragraph 13.

Allegations

14. Defendants deny knowledge or information sufficient to form a belief with regard

to the allegations in Paragraph 14 of the Amended Complaint, and therefore deny same.

15. Defendants admit the allegations in Paragraph 15 of the Amended Complaint.

16. Defendants deny the allegations in Paragraph 16 of the Amended Complaint.

17. Defendants deny the allegations in Paragraph 17 of the Amended Complaint.

18. Defendants deny the allegations in Paragraph 18 of the Amended Complaint.

19. Defendants deny the allegations in Paragraph 19 of the Amended Complaint.

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20. Defendants deny the allegations in Paragraph 20 of the Amended Complaint.

21. The allegations in Paragraph 21 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 21.

22. Defendants deny the allegations in Paragraph 22 of the Amended Complaint.

23. The allegations in Paragraph 23 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 23.

24. Defendants deny the allegations in Paragraph 24 of the Amended Complaint.

First Cause of Action

25. Defendants repeat and reallege each response to the referenced paragraphs as if

fully set forth here.

26. Defendants deny the allegations in Paragraph 26 of the Amended Complaint.

27. The allegations in Paragraph 27 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 27.

28. Defendants deny the allegations in Paragraph 28 of the Amended Complaint.

29. Defendants deny the allegations in Paragraph 29 of the Amended Complaint.

30. The allegations in Paragraph 30 constitute conclusions of law to which no response

is required. To the extent that a response is required, Defendants deny each and every allegation

in Paragraph 30.

31. Defendants deny the allegations in Paragraph 31 of the Amended Complaint.

32. Defendants deny the allegations in Paragraph 32 of the Amended Complaint.

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33. Defendants deny the allegations in Paragraph 33 of the Amended Complaint.

34. Defendants deny the allegations in Paragraph 34 of the Amended Complaint.

35. The allegations in Paragraph 35 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 35.

Second Cause of Action

36. Defendants repeat and reallege each response to the referenced paragraphs as if

fully set forth here.

37. Defendants deny the allegations in Paragraph 37 of the Amended Complaint.

38. Defendants deny the allegations in Paragraph 38 of the Amended Complaint.

39. The allegations in Paragraph 39 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 39.

40. Defendants deny the allegations in Paragraph 40 of the Complaint.

41. Defendants deny the allegations in Paragraph 41 of the Amended Complaint.

42. Defendants deny the allegations in Paragraph 42 of the Amended Complaint.

43. Defendants deny the allegations in Paragraph 43 of the Amended Complaint.

44. Defendants deny the allegations in Paragraph 44 of the Amended Complaint.

45. The allegations in Paragraph 45 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 45.

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Third Cause of Action

46. Defendants repeat and reallege each response to the referenced paragraphs as if

fully set forth here.

47. Defendants deny the allegations in Paragraph 47 of the Amended Complaint.

48. The allegations in Paragraph 48 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 48.

49. The allegations in Paragraph 49 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 49.

50. The allegations in Paragraph 50 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 50.

51. Defendants deny the allegations in Paragraph 51 of the Amended Complaint.

52. Defendants deny the allegations in Paragraph 52 of the Amended Complaint.

53. Defendants deny the allegations in Paragraph 53 of the Amended Complaint.

54. The allegations in Paragraph 54 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 54.

Fourth Cause of Action

55. Defendants repeat and reallege each response to the referenced paragraphs as if

fully set forth here.

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56. The allegations in Paragraph 56 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 56.

57. The allegations in Paragraph 57 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 57.

58. Defendants deny the allegations in Paragraph 58 of the Amended Complaint.

59. Defendants deny the allegations in Paragraph 59 of the Amended Complaint.

60. Defendants deny the allegations in Paragraph 60 of the Amended Complaint.

61. Defendants deny the allegations in Paragraph 61 of the Amended Complaint.

62. The allegations in Paragraph 62 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 62.

Fifth Cause of Action

63. Defendants repeat and reallege each response to the referenced paragraphs as if

fully set forth here.

64. Defendants deny the allegations in Paragraph 64 of the Amended Complaint.

65. Defendants deny the allegations in Paragraph 65 of the Amended Complaint.

66. Defendants deny the allegations in Paragraph 66 of the Amended Complaint.

67. The allegations in Paragraph 67 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 67.

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Sixth Cause of Action

68. Defendants repeat and reallege each response to the referenced paragraphs as if

fully set forth here.

69. The allegations in Paragraph 69 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 69.

70. Defendants deny the allegations in Paragraph 70 of the Amended Complaint.

71. Defendants deny the allegations in Paragraph 71 of the Amended Complaint.

72. Defendants deny the allegations in Paragraph 72 of the Amended Complaint.

73. The allegations in Paragraph 73 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 73.

Seventh Cause of Action

74. Defendants repeat and reallege each response to the referenced paragraphs as if

fully set forth here.

75. The allegations in Paragraph 75 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 75.

76. Defendants deny the allegations in Paragraph 76 of the Amended Complaint.

77. Defendants deny the allegations in Paragraph 77 of the Amended Complaint.

78. The allegations in Paragraph 78 constitute conclusions of law to which no

response is required. To the extent that a response is required, Defendants deny each and every

allegation in Paragraph 78.

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AFFIRMATIVE AND OTHER DEFENSES

79. For a first affirmative defense, Defendants assert that the Amended Complaint

and each Cause of Action therein fails to state a claim upon which relief can be granted.

80. For a second affirmative defense, Defendants assert that this Court lacks

jurisdiction over some or all of the claims made in the Amended Complaint.

81. For a third affirmative defense, Defendants assert that Plaintiffs’ claims are

barred, in whole or in part, by the doctrine of laches and the applicable statues of limitations.

82. For a fourth affirmative defense, Defendants assert that the Childs Victim Act is

unconstitutional.

83. For a fifth affirmative defense, Defendants assert that Defendants did not breach

any lawful duty owed to Plaintiff.

84. For a sixth affirmative defense, Defendants assert that all or some of the claims in

the Amended Complaint are barred because the alleged violations and damages sustained by

Plaintiff, if any, were caused by the acts of a third party over whom Defendants had no control.

85. For a seventh affirmative defense, Defendants assert that Plaintiff’s claims are

barred, in whole or in part, because the acts of others constitute responsible and/or intervening

and/or superseding causes of Plaintiff’s alleged damages.

86. For an eighth affirmative defense, Defendants assert that all or some of the claims

in the Amended Complaint are barred because the alleged violations and damages sustained by

Plaintiff, if any, were not caused by Defendants

87. Defendants reserve the right to assert any additional affirmative defenses as may

be appropriate based upon the facts or issues disclosed during the course of additional investigation

and discovery.

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WHEREFORE, Defendants respectfully demand judgment dismissing Plaintiff’s

Amended Complaint in its entirety and for such other and further relief as to this Court may

seem just, proper and equitable, together with the costs and disbursements of this action.

Dated: Buffalo, New York

September 30, 2019

LIPPES MATHIAS WEXLER FRIEDMAN LLP

/s/Dennis C. Vacco
Dennis C. Vacco, Esq.
Scott S. Allen Jr. Esq.
Attorneys for Defendants
50 Fountain Plaza, Suite 1700
Buffalo, New York 14202
Telephone: (716) 853-5100
TO: Paul J. Hanly, Jr., Esq.
Jayne Conroy, Esq.
Andrea Bierstein, Esq.
Attorneys for Plaintiff
SIMMONS HANLY CONROY LLC
112 Madison Avenue
New York, NY 10016
T: (212) 784-6401
F: (212) 213-5949

cc: Mitchell Garabedian, Esq.

William H. Gordon, Esq.
Of Counsel
LAW OFFICES OF MITCHELL GARABEDIAN
100 State Street, 6th Floor
Boston, MA 02109
T: (617) 523-6250

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