UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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ESTERVINA PAULINO, 

 Plaintiff, 

 - against - 

GLADYS CARRION, as Commissioner of the New 

York State Office of Children and Family Services, 

and THOMAS R. FRIEDEN, M.D., as 

Commissioner of the New York City Department of 

Health and Mental Hygiene, 

 Defendants. 

ANSWER TO 

COMPLAINT

07 CV 5773 

(LAK) (GWG) 

(ECF) 

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Defendant THOMAS R. FRIEDEN, M.D., as Commissioner of the New York 

City Department of Health and Mental Hygiene, (hereinafter “DOHMH,” the “City defendant”) 

by his attorney Michael A. Cardozo, Corporation Counsel of the City of New York, for his 

answer to the complaint, respectfully alleges as follows: 

1. Denies the allegations set forth in paragraph “1” of the complaint, except 

admits that plaintiff purports to proceed as described therein. 

2. Denies the allegations set forth in paragraph “2” of the complaint, except 

admits that plaintiff purports to proceed as described therein. 

3. Denies the allegations set forth in paragraph “3” of the complaint, except 

admits that plaintiff purports to proceed as described therein. 

4. Denies the allegations set forth in the first sentence of paragraph “4” of the 

complaint, except admits that the Court has jurisdiction over plaintiff’s federal claims and that 

the Court has discretion to exercise jurisdiction over plaintiff’s state law claims. Denies the 

allegations set forth in the second sentence of paragraph “4” of the complaint, except admits that 

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this Court’s exercise of supplemental jurisdiction over state claims is governed by the provisions 

of 28 U.S.C. §1367. 

5. Denies the allegations set forth in paragraph “5” of the complaint, except 

admits that plaintiff purports to proceed as described therein and that this Court has authority to 

grant declaratory and injunctive relief. 

6. Denies the allegations set forth in paragraph “6” of the complaint, except 

admits that venue is proper. 

7. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “7” of the complaint, except admits that the records of 

DOHMH reflect that plaintiff is registered as a provider of family day care and that such 

program is located at 545 West 164th Street, Apartment 4A, New York, New York, 10032. 

8. Denies the allegations set forth in paragraph “8” of the complaint, except 

admits that respondent Gladys Carrion is the Commissioner of the New York State Office of 

Children and Family Services (“OCFS,” the “State defendant”); that the primary office of OCFS 

is located at 52 Washington Street, Rensselaer, New York; that OCFS regulates, inter alia,

family day care providers, and respectfully refers the Court to NY Social Services Law (“Soc. 

Serv. Law”) §390 for the provisions governing regulation of child care providers in the State of 

New York. 

9. Denies the allegations set forth in paragraph “9” of the complaint, except 

admits that respondent Thomas R. Frieden, M.D., is the Commissioner of DOHMH, and that 

pursuant to a contract with OCFS, DOHMH provides licensing and registration services for, 

inter alia, family day care, as regulated under Soc. Serv. Law §390 and the regulations of the 

New York State Department of Social Services. 

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10. Denies so much of the allegations set forth in paragraph “10” of the 

complaint as alleges or purports to allege that the City defendant acted improperly or contrary to 

law. 

11. Denies so much of the allegations set forth in paragraph “11” of the 

complaint as alleges or purports to allege that the City defendant acted improperly or contrary to 

law. 

12. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “12” of the complaint, and further denies so much of the 

allegations as alleges or purports to allege that the City defendant acted improperly or contrary to 

law. 

13. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “12” of the complaint, and further denies so much of the 

allegations as alleges or purports to allege that the City defendant acted improperly or contrary to 

law. 

14. Denies so much of the allegations set forth in paragraph “14” as is 

inconsistent with the statute cited therein. 

15. Denies so much of the allegations set forth in paragraph “15” as is 

inconsistent with the statute cited therein. 

16. Denies so much of the allegations set forth in paragraph “16” as is 

inconsistent with the statute and regulations cited therein. 

17. Denies so much of the allegations set forth in paragraph “17” as is 

inconsistent with the statute and regulations cited therein. 

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18. Denies so much of the allegations set forth in paragraph “18” as is 

inconsistent with the statute and regulation cited therein. 

19. Denies so much of the allegations set forth in paragraph “19” as is 

inconsistent with the regulation cited therein. 

20. Denies so much of the allegations set forth in paragraph “20” as is 

inconsistent with the regulations cited therein. 

21. Denies so much of the allegations set forth in paragraph “21” of the 

complaint as alleges or purports to allege that the City defendant acted improperly or contrary to 

law. 

22. Denies so much of the allegations set forth in paragraph “22” as is 

inconsistent with the statute cited therein, except admits that the New York City Administration 

for Children’s Services (“ACS”) is the child protective services agency for the City of New 

York. 

23. Denies so much of the allegations set forth in paragraph “23” as is 

inconsistent with the statute cited therein. 

24. Denies the allegations set forth in paragraph “24” of the complaint, except 

admits that the records of DOHMH reflect that plaintiff is registered as a provider of family day 

care. 

25. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “25” of the complaint, except admits that plaintiff has 

communicated orally with staff members of DOHMH in Spanish. 

26. Denies the allegations set forth in paragraph “26” of the complaint, except 

admits that plaintiff has been charged by OCFS with failing to comply with various requirements 

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regarding supervision of day care children, based on the incident of October 5, 2006, at which 

time it is alleged that plaintiff was drinking hot coffee in the children’s play area, that such 

coffee spilled upon the face and abdomen of a child under plaintiff’s care, causing first and 

second degree burns to the child, that plaintiff failed to take the child to the hospital or call 911 

for transportation and that plaintiff did not contact OCFS to advise of this incident; and denies 

knowledge or information sufficient to form a belief as to any treatment rendered by plaintiff to 

the child subsequent to the injurious event. 

27. Denies the allegations set forth in paragraph “27” of the complaint, except 

admits that plaintiff has been charged by OCFS with failing to comply with various requirements 

regarding supervision of day care children, based on the incident of October 5, 2006, at which 

time it is alleged that plaintiff was drinking hot coffee in the children’s play area, that such 

coffee spilled upon the face and abdomen of a child under plaintiff’s care, causing first and 

second degree burns to the child, that plaintiff failed to take the child to the hospital or call 911 

for transportation and that plaintiff did not contact OCFS to advise of this incident; and denies 

knowledge or information sufficient to form a belief as to the content of any conversations 

between plaintiff and the child’s foster parent. 

28. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “28” of the complaint, except admits that the incident of 

October 5, 2006 was investigated by ACS. 

29. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “29” of the complaint, except admits that the incident of 

October 5, 2006 was investigated by ACS. 

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30. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “30” of the complaint, except admits that the incident of 

October 5, 2006 was investigated by ACS. 

31. Denies the allegations set forth in paragraph “31” of the complaint, except 

admits a DOHMH inspector visited plaintiff’s residence on October 10, 2006 to investigate the . 

incident of October 5, 2006 and that plaintiff spoke to the inspector in Spanish. 

32. Denies the allegations set forth in paragraph “32” of the complaint, except 

admits that by letter dated October 10, 2006, DOHMH notified plaintiff, in English, that on 

October 6, 2006 a complaint was filed against plaintiff’s family day care program, and provided 

plaintiff with details of uncorrected violations observed during the investigation of such 

complaint. 

33. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “33” of the complaint. 

34. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “34” of the complaint. 

35. Denies the allegations set forth in paragraph “35” of the complaint, except 

admits that Andrea Batts of DOHMH’s Bureau of Day Care, spoke in Spanish to plaintiff via 

telephone concerning the stipulation offered by OCFS, and denies knowledge or information 

sufficient to form a belief as to plaintiff’s actions subsequent to speaking with Ms. Batts. 

36. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “36” of the complaint. 

37. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “37” of the complaint. 

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38. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “38” of the complaint. 

39. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “39” of the complaint. 

40. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “40” of the complaint. 

41. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “41” of the complaint. 

42. Denies the allegations set forth in paragraph “42” of the complaint, except 

denies knowledge or information sufficient to form a belief as to the truth of the allegations 

concerning the actions of OCFS. 

43. Denies the allegations set forth in paragraph “43” of the complaint, except 

denies knowledge or information sufficient to form a belief as to the truth of the allegations 

concerning the actions of OCFS. 

44. Denies knowledge or information sufficient to form a belief as to the truth 

of the allegations set forth in paragraph “44” of the complaint. 

45. Denies the allegations set forth in paragraph “45” of the complaint, except 

denies knowledge or information sufficient to form a belief as to the truth of the allegations 

concerning the actions of OCFS. 

AS AND FOR A FIRST AFFIRMATIVE DEFENSE: 

46. The complaint fails to state a claim for relief against the City defendant 

cognizable under federal or state law. 

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AS AND FOR A SECOND AFFIRMATIVE DEFENSE: 

47. The City Defendant has not violated any rights, privileges or immunities 

under the Constitution or laws of the United States or the State of New York or any political 

subdivision thereof, nor has the City defendant violated any act of Congress providing for the 

protection of civil rights. 

48. Any actions of the City defendant complained of herein were in all 

respects lawful, proper and constitutional. 

AS AND FOR A THIRD AFFIRMATIVE DEFENSE: 

49. This Court should decline to exercise supplemental jurisdiction over those 

claims against the City defendant that are purportedly raised pursuant to state law. 

WHEREFORE, the City defendant requests judgment dismissing the complaint 

in its entirety and all relief requested therein as against the City defendant, together with such 

other and further relief as the Court deems just and proper. 

Date: New York, New York 

August 17, 2007 

MICHAEL A. CARDOZO 

Corporation Counsel of the 

 City of New York 

Attorney for the City Defendant 

By: _________________________

 Mary O’Sullivan (MO 8495) 

 Assistant Corporation Counsel 

 100 Church Street, Room 5-174 

 New York, New York 10007 

 Phone (212) 788-1003 

 Fax (212) 791-9714 

 mosulliv@law.nyc.gov 

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TO: John C. Grey, Esq. 

 South Brooklyn Legal Services 

 Attorney for Plaintiff 

 By: Nancy Bedard, Esq. 

 Andrew Cuomo, Attorney General of the State of New York 

 Attorney for Defendant Carrion 

 By: George Alvarez, Assistant Attorney General 

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