UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------X

:

ESTERVINA PAULINO

 Plaintiff, :

-against- : 

 STATE DEFENDANT’S 

GLADYS CARRION, as Commissioner of : ANSWER

the New York State Office of Children 

and Family Services, and THOMAS R. : 07 CV 05773

FRIEDEN, M.D., as Commissioner of the 

New York City Department of Health and : Filed Electronically

Mental Hygiene 

Defendants, :

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Defendant GLADYS CARRION, as Commissioner of the New

York State Office of Children and Family Services (“State

defendant”), by her attorney, ANDREW M. CUOMO, Attorney General

of the State of New York, answers the Complaint as follows:

1. With respect to paragraphs 1-3 of the Complaint

(plaintiff’s “preliminary statement”), no response is necessary

because it merely sets forth the purported nature of the

Complaint; to the extent a response is deemed necessary, State

defendant denies that the allegations have merit. 

2. Denies the allegations contained in paragraphs 4-6

of the Complaint.

3. Admits paragraph 7 of the Complaint.

4. With respect to paragraph 8, admits that defendant

GLADYS CARRION is the Commissioner of the New York State Office

of Children and Family Services, denies the remaining allegations

and respectfully refers the Court to the New York State Social

Services Law (“SSL”) and regulations for a description of the

Commissioner’s responsibilities.

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5. With respect to paragraph 9, admits, upon

information and belief, that defendant THOMAS R. FRIEDEN, M.D. is

the Commissioner of the New York City Department of Health and

Mental Hygiene, and respectfully refers the Court to New York

State Social Services Law (“SSL”) for a description of the

Commissioner’s responsibilities.

6. With respect to paragraphs 10-23, respectfully

refers the Court to the Constitutional provisions, statutes,

regulation and other authorities referenced therein for the

contents, meaning and effect thereof, and denies any

characterization given thereto by plaintiffs.

7. Admits paragraph 24 of the Complaint.

8. Denies paragraph 25 of the Complaint.

9. With respect to paragraph 26: denies knowledge or

information sufficient to form a belief as to the truth or

accuracy of the allegations contained in the first sentence;

admits the second sentence, but affirmatively states that the

child was injured as a result of hot coffee plaintiff had brought

to the day care area; admits the third sentence, but

affirmatively states that plaintiff failed to call 911 or

otherwise seek proper medical attention for the child. 

10. With respect to paragraph 27: denies the first

and second sentences; denies knowledge or information sufficient

to form a belief as to the truth or accuracy of the allegations

contained in the third and fourth sentences, but affirmatively

states that plaintiff admitted to the foster parent that the

child required medical attention, which plaintiff had not sought

on the child’s behalf.

11. With respect to paragraph 28, denies knowledge or

information sufficient to form a belief as to the truth or

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accuracy of the allegations.

12. Admits the allegations contained in paragraph 29.

13. Admits the allegations contained in paragraph 30.

14. Denies knowledge or information sufficient to form

a belief as to the truth or accuracy of the allegations contained

in paragraphs 31 and 32. 

15. With respect to paragraph 33, respectfully refer

the Court to the letter referenced therein for the contents,

meaning and effect thereof, and denies any characterization given

thereto by plaintiff. 

16. With respect to paragraph 34, respectfully refer

the Court to the stipulation of settlement referenced therein for

the contents, meaning and effect thereof, and denies any

characterization given thereto by plaintiff. 

17. Denies knowledge or information sufficient to form

a belief as to the truth or accuracy of the allegations contained

in paragraphs 35 and 36.

18. With respect to paragraphs 37, 38 and 39,

respectfully refer the Court to the letter(s) referenced therein

for the contents, meaning and effect thereof, and denies any

characterization given thereto by plaintiff.

19. Denies the applicability of paragraph 40 of the

complaint. 

20. Denies paragraphs 41-45 of the Complaint.

AS AND FOR A 

FIRST DEFENSE

21. The court lacks subject matter jurisdiction over

this action.

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AS AND FOR A 

SECOND DEFENSE

22. The Eleventh Amendment to the United States

Constitution bars plaintiff claims that State defendants violated

State law and for a retrospective declaration that State

defendant had violated federal law when plaintiff signed the

stipulation.

AS AND FOR A FIRST

AFFIRMATIVE DEFENSE

23. The Complaint fails to state a claim upon which

relief may be granted against the State defendant.

WHEREFORE, the State defendant respectfully requests

that this Court dismiss this action in its entirety, and grant

such other and further relief as to the Court seems just and

proper.

Dated: New York, New York

August 17, 2007

ELIOT SPITZER

Attorney General of the

 State of New York

Attorney for State defendant

By: /s/ George A. Alvarez

George A. Alvarez (GA-2335)

 Assistant Attorneys General

120 Broadway

New York, New York 10271

(212) 416-8663

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