The sexual abuse of a child horrifies all of us. An act that destroys the innocence of childhood and inalterably damages the entire life of a young person should not go without compensation to the abused person and punishment of the offenders. Yet, because of its devastating nature and the frequent inability of the individual to either talk about it or fully process the horror of what occurred, such abuse has frequently gone unreported within the confines of the conventional statutes of limitations. It is also clear, as mental health professionals recognize, that victims of sexual abuse may experience anxiety, depression, addiction and other destabilizing conditions. It may take years for them to understand what happened to them and to come forward. Sadly, clients have told us that “shame” prevented them from timely reporting the abuse.
The time needed to emotionally process the abuse has frequently delayed the prosecution of civil and criminal actions, often beyond the existing statutes of limitations, leaving those injured without recourse. The news is replete with current articles reporting child sexual abuse which occurred years ago. For example, the New York Times reported on March 13, 2019, that George Pell, an Australian cardinal, was just sentenced in Melbourne, Australia for his conviction in December 2018 for abusing two 13-year-old boys in 1996, approximately 23 years ago. There were apparently also other undisclosed victims reported. There are many new reported incidents emerging of sexual abuse of students at elite private schools many years ago which are only being revealed now. Many of the claims are against serial offenders and often implicate institutions, as well as the individual pedophile.
There has been public pressure for years in New York to amend the statute of limitations to allow these claims to be litigated. Prior to the enactment into law of the Child Victims Act on Feb. 14, 2019, the statutes of limitations for both criminal prosecution and civil tort claims failed to allow for the necessary time to process these sensitive claims and allow victims extended time to seek judicial recourse.
In 2006, the Court of Appeals in Zumpano v. Quinn, 6 N.Y.3d 666, 677 recognized the need for legislative action in order to protect and compensate these victims. In Zumpano, the complaints, alleging sexual abuse years earlier and involving both individual defendants and their institutional supervisors and/or employers, were reluctantly dismissed by the courts as time barred against both individuals and institutions. The Court of Appeals stated: “However reprehensible the conduct alleged, these actions are subject to the time limits created by the Legislature. Any exception to be made to allow these types of claims to proceed outside of the applicable statutes of limitations would be for the Legislature …” At last, the legislature has responded and created a path to seek redress for these horrors by extending the age by which to commence a civil action for the sexual abuse of a child to age 55. The criminal statute was extended by five years from age 23 to age 28.
The new law involves the amendment of multiple statutes, both criminal and civil. Civil claims cut a broad swath and may encompass intentional torts against individual perpetrators, as well as negligent supervision, negligent hiring and common law negligence against institutional defendants. Indeed, the institutional offender may likely become the primary defendant, as generally the pedophile was likely to have been an adult, many years older than the child when the offense occurred, and potentially no longer alive.
Extension of the Statue of Limitations
Criminal Procedure Law §30.10(f) now provides that the statute of limitations for criminal prosecution of a sexual offense against a child as defined in the statute “shall not begin to run until the child has reached the age of twenty-three or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.” This is a five-year extension over the prior age of 18.
CPLR §208 has been amended to add a subsection extending the statute of limitations to bring a civil claim for a sexual offense committed during infancy such that the action must be commenced on or before the plaintiff reaches the age of 55. The sexual offenses within its scope are defined in the penal law and specifically referenced in CPLR §208(b). The amendment which is effective as of Feb. 14, 2019, provides:
(b) Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, with respect to all civil claims or causes of action brought by any person for physical, psychological or other injury or condition suffered by such person as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was less than eighteen years of age, incest as defined in section 255.27, 255.26 or 255.25 of the penal law committed against such person who was less than eighteen years of age, or the use of such person in a sexual performance as defined in section 263.05 of the penal law, or a predecessor statute that prohibited such conduct at the time of the act, which conduct was committed against such person who was less than eighteen years of age, such action may be commenced, against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of said conduct, on or before the plaintiff or infant plaintiff reaches the age of fifty-five years. In any such claim or action, in addition to any other defense and affirmative defense that may be available in accordance with law, rule or the common law, to the extent that the acts alleged in such action are of the type described in subdivision one of section 130.30 of the penal law or subdivision one of section 130.45 of the penal law, the affirmative defenses set forth, respectively, in the closing paragraph of such sections of the penal law shall apply.
Notice of Claim
The legislation has effectively expanded the class of institutions which may be held responsible for the types of sexual offenses within its scope such that public as well as private institutions may now be held accountable. The requirement to file a Notice of Claim generally within 90 days as a condition precedent to an action made it very difficult in the past to pursue sexual abuse claims against governmental defendants because of these restrictive time limits. However, the Child Victims Act not only extends the statute of limitations, but dispenses with the requirement to file a notice of claim against various municipal entities for the specific sexual offenses enumerated in the Act.
General Municipal Law 50-e, which provides for the content and service of a notice of claim where it is a condition precedent to commencing a suit against a public corporation, has been amended to exclude claims for physical, psychological, or other injury or condition suffered by children as a result of conduct which would constitute a sexual offense in the enumerated sections of the penal code by adding the following section:
(8)(b) This section shall not apply to any claim made for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age, incest as defined in section 255.27, 255.26 or 255.25 of the penal law committed against a child less than eighteen years of age, or the use of a child in a sexual performance as defined in section 263.05 of the penal law committed against a child less than eighteen years of age.
General Municipal Law §50-I provides that no action or special proceeding may be brought against a city, county, town, village, fire district or school district or its employees unless a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with General Municipal Law 50-e. However, this statute has also been amended with specific language to dispense with a notice of claim as a condition precedent for actions based upon claims of the sexual abuse of a child under the age of eighteen for the offenses defined in the Penal Code and specified in the Act. See General Municipal Law §50-I(5). So too, Education Law §3813 which directs the manner of presentation of claims against the governing body of any school district or certain state supported schools has similarly dispensed with the requirement of a notice of claim for these specified penal offenses committed against children. See Education Law §3813(2). The Court of Claims Act §10 has been amended as well.
Look-Back Period
The Act provides for a “look back” period to permit the revival of any such actions which may be time barred because the applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim. Permitting the revival of claims by victims whose statute of limitations had expired was the subject of opposition by churches, teachers’ unions and numerous insurance companies.
This look-back period is very important. However, there is a very limited period of time during which claims may be revived by filing or refiling an action. Such an action may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section. This look back period is defined in CPLR §214-g. Any case within its scope requires immediate attention. Civil Practice Law and Rules §214-g provides:
Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age, incest as defined in section 255.27, 255.26 or 255.25 of the penal law committed against a child less than eighteen years of age, or the use of a child in a sexual performance as defined in section 263.05 of the penal law, or a predecessor statute that prohibited such conduct at the time of the act, which conduct was committed against a child less than eighteen years of age, which is barred as of the effective date of this section because the applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim, is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section. In any such claim or action: (a) in addition to any other defense and affirmative defense that may be available in accordance with law, rule or the common law, to the extent that the acts alleged in such action are of the type described in subdivision one of section 130.30 of the penal law or subdivision one of section 130.45 of the penal law, the affirmative defenses set forth, respectively, in the closing paragraph of such sections of the penal law shall apply; and (b) dismissal of a previous action, ordered before the effective date of this section, on grounds that such previous action was time barred, and/or for failure of a party to file a notice of claim or a notice of intention to file a claim, shall not be grounds for dismissal of a revival action pursuant to this section.
Under Judiciary Law §219-d, the Office of Court Administration is directed to promulgate rules for the adjudication of these revived claims under CPLR§214-g. These revived actions have been granted a trial preference under CPLR 3403(a)(7).
This look back provision is so clearly important to victims who have been waiting for an opportunity to be heard but were barred under the old law. This is not the first time that the legislature has revived claims for which the statute of limitations had previously expired and provided the courts with the opportunity to examine the conditions under which a revival statute will satisfy the due process clause of the Constitution. In its decision, In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377 (2017), the Court of Appeals reviewed and reexamined its prior decisions on this issue in Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989), Robinson v. Robins Dry Dock & Repair Co., 144 N.E. 579 (N.Y. 1924), and Gallewski v. H. Hentz & Co., 93 N.E.2d 620 (N.Y. 1950), each of which addressed a revival statute. After an analysis of its prior assessments, and elements such as the injury being redressed and the length of time of the revival period, the court succinctly expressed its standard, holding:
We now arrive at our answer to the second certified question, as reformulated herein. The cases we have just discussed all express one and the same rule: a claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice.
In re World Trade Ctr. Lower Manhattan Disaster Site Litig. at 399-400.
More recently, in Sweener v. St.-Gobain Performance Plastics, 2018 WL 2229133 (N.D.N.Y. 2018), the District Court analyzed the New York case law and stated:
The salient facts in each of Robinson, Gallewski, McCann and Hymowitz fall into the same pattern. First, there existed an identifiable injustice that moved the legislature to act. In Robinson, it was the plaintiffs’ exclusive reliance on a provision of the workers’ compensation law that was struck down by the United States Supreme Court (see 238 NY at 279); in Gallewski, it was the occupation of the plaintiffs’ countries of residence during World War II …; in Hymowitz and McCann, it was latent injuries caused by harmful exposure, which the plaintiffs were not able to attribute to an action or omission of the defendant until the statutory period to bring a claim had already expired … Second, in each case, the legislature’s revival of the plaintiff’s claims for a limited period of time was reasonable in light of that injustice.
These past cases make it abundantly clear that the newly enacted revival statute provided under the Child Victims Act is sustainable. The injustice to these victims is identifiable and egregious. The limited time period to revive these claims is reasonable. New York has finally extended the statute of limitations to address the claims of these tragic victims.
Robert S. Kelner is senior partner at Kelner & Kelner. Gail S. Kelner is an attorney with the firm.
