New York’s Child Victims Act Provisions Will Likely Lead To A Significant Increase In Civil Suits Arising Out Of Childhood Sexual Abuse

New York, N.Y. (July 16, 2019) – On February 14, 2019, New York State Governor Andrew Cuomo signed into law the Child Victims Act (CVA), which greatly expanded the right of childhood sexual assault survivors. Prior to enacting the CVA, New York had one of the more restrictive statutes of limitations in the country when bringing claims based on childhood sexual abuse.[1] Of direct concern, child sexual abuse victims often do not disclose their abuse until several years after the abuse occurred and many times well past the then-applicable statutes of limitations.[2] Consequently, these delays allowed alleged perpetrators to avoid prosecution or allowed civil cases to be dismissed.

The CVA sought to rectify this in the following ways: (1) amending the criminal procedure law, in relation to the statute of limitations in criminal prosecution of a sexual offence committed against a child; (2) amending civil practice law and rules, in relation to the statute of limitations for civil actions related to a sexual offence committed against a child; (3) reviving such actions otherwise barred by the existing statute of limitations and granting trial preference for those actions; (4) amending the general municipal law, in relation to providing that the notice of claim provisions shall not apply to such action; (5) amending the Court of Claims Act, in relation to providing that the notice of intention to file provisions shall not apply to such actions; (6) amending education law, in relation to providing that the notice of claim provisions shall not apply to such actions; and (7) amending the judiciary law to provide the judicial training in handling cases involving the sexual abuse of minors and rules for reviving civil actions relating to sexual offences committed against children. It is in the realm of civil claims where the impact of the CVA will be most visible in the coming months.

The CVA amends CPLR § 208(b) and allows victims the right to initiate a civil action against their abusers and enabling institutions, until the victim turns fifty-five (55) years old, and regardless as to whether the victim claims the behavior was negligent or intentional. Furthermore, the CVA now eliminates the requirement of filing a notice of claim against a municipal/governmental entity and the limited statute of limitations for such claims against said entities. See NY General Municipal law §§ 50-e(8)(b) and 50-i(5); NY Court of Claims Act § 10; and NY Education Law § 3813(2).

Before the CVA, any person intending to file a personal injury lawsuit against a municipal entity was required, as a pre-requisite, to first file a notice of claim within ninety (90) days of the injury-inducing incident, and in cases involving minors, within ninety (90) days of the minor’s eighteenth birth day. New York’s courts frequently distinguished the notice of claim requirement from a traditional statute of limitations by categorizing it as a “condition precedent” to a lawsuit as opposed to a statutory requirement requiring the commencement of an action within a certain amount of time.

The CVA takes into consideration the many cases which were dismissed/never pursued because of the then-existing statutes of limitations for these claims. The CVA enacted CPLR § 214-g, which opens up a one-year, one-time-only period to allow all victims to seek civil action, regardless of how long ago the abuse occurred. That one year window begins on August 14, 2019. Additionally, these cases, filed pursuant to CPLR § 214-g, are to be given a special preference regarding their adjudication. CPLR § 3403(a)(7).

The potential increase in cases has required the Office of Court Administration to establish guidelines for the handling of these cases. See CPLR § 219-d. The judiciary has recommended that a special Part to address these cases be established and that discovery be completed within one hundred-eighty (180) days from the preliminary conference. In addition, the Office of Court Administration has recommended that justices, judicial hearing officers, and referees in 214-g Parts receive training in subjects related to sexual assault and the sexual abuse of minors, pursuant to a curriculum and format approved by the Office of Court Administration. Accordingly, these cases will be handled aggressively by the courts and with judiciary who are trained for these matters.

After August 14, 2019, it is foreseeable that as many as 2,500 people expect to use the CVA to sue individual defendants and organizational defendants in New York. In other states, where similar provisions have been enacted, defendants that did not immediately appreciate their potential exposure, were overwhelmed and, in some cases, forced to seek bankruptcy protection. For these reasons, it is critically important for potential defendants to establish a cohesive defense strategy now.

Footnotes:

[1] In New York, there was a limited extended statute of limitations for sexual abuse claims. Under NY CPLR 213-c, actions for civil damages for defined sexual crimes, including sexual abuse of a minor, may be brought within five years of the acts constituting the sexual offense. However that extension was limited to defendants only to “a person who commits the acts . . . and shall not apply to any related civil claim or cause of action arising from such acts” CPLR §213-c. Accordingly, the statute of limitation was enlarged for actions against the actual assailant but not any organizations her/she was affiliated with.

[2] Beverly Engel L.M.F.T. “Why Adult Victims of Childhood Sexual Abuse Don’t Disclose” March 6, 2019 Psychology Today.

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Author:

Eileen T. Budd, Partner

Editor:

Joelle Nelson, Partner