On Feb. 14, 2019, Gov. Andrew Cuomo signed into law L. 2019, ch. 11, known as the Child Victims Act. The bill was designed to correct a longstanding, manifest injustice: Many perpetrators of child sexual abuse escaped criminal prosecution, civil liability, or both as a result of New York state’s then-existing statute of limitations scheme.

While most provisions of the Act took effect immediately upon signing, what is perhaps the most significant provision, a one-year revival window for civil claims that were previously time-barred, was scheduled to take effect six months after the effective date. That day—August 14th—is here.

Provisions of the Act Taking Effect Upon Enactment

Among the provisions of the Act that took effect upon signing was a new subsection (b) added to CPLR 208’s toll for infancy and insanity, extending the statute of limitations for certain acts of sexual abuse involving a minor to the date when that minor reaches age 55:

(b) … 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 … 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 …

Extending the statute of limitations until age 55 eliminates a major hurdle to timely commencement for claims whose victims are very often unable, for myriad reasons, to bring an action for years or decades after suffering abuse. The Assembly’s sponsoring memo explained one justification for the change:

The societal plague of sexual abuse against minors is now well-documented. Also well-established is how certain abusers—sometimes aided by institutional enablers and facilitators—have been successful in covering up their heinous acts against children, either by guile, threats, intimidation, and/or attacks on child victims.

Accompanying the enactment of CPLR 208(b) were a number of amendments to, inter alia, Gen. Mun. L. §§50-e and 50-i and Court of Claims Act §7, eliminating the requirement, as a condition precedent to bring suit against governmental entities, of the service of a notice of claim. Notices of claim, required to be served on a shortened time-frame, imposed an additional hurdle to bringing actions to recover for child sexual abuse against governmental entities.

The Act also changed the commencement date of the running of the criminal statute of limitations for both misdemeanor and felony sexual offenses against minors: the clock, which previously began to run when the victim reached age 18, now begins to run when the victim reaches age 23. The existing statutes of limitations for these crimes do not change, but the net effect is to extend each statute of limitations by five years.

The Revival Provision

Arguably the most important feature of the new legislation was the provision of a one-year revival period for claims:

[B]arred 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 …

Six months after the effective date of Feb. 14, 2019 is Aug. 14, 2019.

Permitting the revival of these time-barred claims acknowledged the injustice the existing statute of limitations scheme imposed upon child victims of sexual abuse, an injustice the courts were powerless to correct.

The revival provision permits cases to be brought notwithstanding either the expiration of the statute of limitations or the failure to file a notice of claim, thus putting revived claims on par with new actions in eliminating the notice of claim requirement.

A likely area of dispute is whether the act(s) giving rise to the claim(s) did, in fact, 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.”

Penal Law §130 provides 11 categories, many with sub-categories, setting forth specific acts violative of the statute. Revival plaintiffs should take care that complaints plead, prima facie, tortuous conduct constituting sexual abuse criminalized by the relevant statutes.

The Courts Get Ready

The Child Victims Act mandated training for judges who would be designated to handle cases brought under the Act, and further mandated that “[t]he chief administrator of the courts shall promulgate rules for the timely adjudication of revived actions brought pursuant to section two hundred fourteen-g of the civil practice law and rules.”

Complying with these mandates, and anticipating a immediate and significant influx of new case filings upon the opening of the one-year revival period, the Office of Court Administration has implemented training on the Child Victim’s Act through the New York State Judicial Institute, designated justices in each county to handle these cases, and put in place statewide rules for cases brought under the revival provisions of the Act.

New Uniform Rule §202.72 took effect July 31, 2019 and provides:

202.72: Actions Revived Pursuant to CPLR 214-g

1. There shall be a dedicated part(s) of Supreme Court in each Judicial District which shall be assigned all actions revived pursuant to CPLR 214-g (“214-g Part”).

2. Justices, judicial hearing officers, referees and alternative dispute resolution (ADR) neutrals in 214-g Parts shall 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.

3. Judges and other court personnel involved in actions revived pursuant to CPLR 214-g, in the exercise of their discretion in any matter relating to such action, shall be mindful of the statutory directive that such actions be adjudicated in a timely fashion (Judiciary Law §219-d) and shall aspire to the following schedule in such actions:

Assignment to Part: immediately upon filing of the RJI

Preliminary conference (PC): Within 30 days of filing the RJI Status conferences (SC): every 60 days after the PC or prior SC

Conclusion of discovery and note of issue: within 365 days of PC

Dispositive motions: fully submitted within 90 days of conclusion of discovery; decided within 30 days of briefing

Trial: scheduled to be held within 60 days of note of issue, except with leave of court on good cause shown; or if dispositive motions have been filed, within 60 days of the decision of those motions.

4. In setting schedules for the conduct of litigation of actions revived pursuant to CPLR 214-g, and in a manner consistent with the goal of timely adjudication of such actions, judges and other court personnel should be mindful of (1) the impact upon the litigation of pending proceedings addressing insurance coverage issues relating to the parties; (2) the difficulties inherent in document, deposition, and other discovery in matters of this type and age; and (3) the benefits of appropriate use of ADR programs to facilitate early resolution of disputes.

5. Counsel for all parties shall consult prior to any preliminary or status conference on all issues likely to be addressed at the conference, including but not limited to (1) resolution of the case in whole or in part and early ADR; (2) outstanding issues relating to insurance coverage of the parties; (3) outstanding discovery issues, including the voluntary informal exchange of information for settlement purposes; (3) adoption of a confidentiality order; (4) scheduling; (5) anticipated use of experts; and (6) anticipated requests to obtain records from earlier cases related to the allegations in the revived case.

6. Counsel at all court appearances should be fully familiar with the case, fully prepared to discuss pending matters competently, authorized to enter into substantive and procedural agreements on behalf of their clients, and authorized to enter into a disposition of the case.

7. Any party claiming a preference under CPLR 3403(7) may apply to the court in the manner prescribed by that section.

8. Any person who intends to appear without a lawyer in a case revived under CPLR 214-g is advised to review the information set forth athttp://www.nycourts.gov/courthelp/.

It is worth noting that the timing requirements in the new rules are aspirational, although every indication is that the courts are making serious preparations to meet them. Whether these, or similar rules will apply to new actions brought pursuant to the CPLR 208(b) is an open question (the training of judges applies to both actions brought on revived claims and new actions).

What Happens Next?

Many plaintiffs will want to proceed anonymously, using “John Doe” or “Jane Doe” in place of their actual names.

While it seems intuitive that a plaintiff alleging childhood sexual abuse should be allowed to proceed anonymously, that result is not pre-ordained, as illustrated in Doe v. Roman Catholic Archdiocese of N.Y., 2019 NY Slip Op 51216(U) (Sup. Ct., Westchester Cty., Justice Ruderman July 31, 2019), decided two weeks ago.

Justice Ruderman analyzed the law permitting anonymous captions:

A “trial court should not pro forma approve an anonymous caption, but should exercise its discretion sparingly and then, only when unusual circumstances necessitate it” … “The determination of whether to allow a plaintiff to proceed anonymously requires the court to use its discretion in balancing plaintiff’s privacy interest against the presumption in favor of open trials and against any prejudice to defendant” … Claims of public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously … Other factors considered by the courts include whether the plaintiff’s situation is compelling, involves highly sensitive matters, including social stigmatization, or involves real danger of physical harm …

On the record before the court, Justice Ruderman concluded “[b]ased on the foregoing discussion, the Court finds that petitioner has failed to make the necessary showing in support of his application to proceed under an anonymous caption.”

This may seem an anomalous determination, but the plaintiff was not seeking merely to keep plaintiff’s name out of the public record:

In the present case, petitioner contends, respondents should be able to determine petitioner’s identity based upon allegations of a past relationship between Calabrese’s sister and petitioner’s cousin. However, this assertion is made in a petition signed by counsel, offered without the benefit of substantiation by an individual with first-hand knowledge. Notably, to date, petitioner’s true identity has not been disclosed to respondents or to the Court, and no representation was made that petitioner’s true identity will be disclosed. Even assuming arguendo that Calabrese may be able to guess petitioner’s true identity, as petitioner suggests, the Church Respondents, who presumably are not privy to information concerning the alleged relationship between petitioner’s cousin and Calabrese’s sister, would remain disadvantaged. To allow petitioner to proceed without respondents ever knowing his true identity would be highly prejudicial to respondents’ ability to defend themselves against these claims as they would be unable to connect their acts to any specific persons … Notably, all of the cases relied upon by petitioner in support of proceeding pseudonymously involve situations where the defendants knew plaintiff’s true identity and/or the plaintiff had consented to the use of his/her legal name for discovery purposes.

Why plaintiff’s counsel charted this course is unclear. What is clear is that the balancing required to be performed by the court essentially compelled its decision.

Earlier this year the defendant in a criminal action, who was a victim of sex trafficking, had her identity omitted in the caption, People v. P.V., 64 Misc.3d 344 (Crim. Ct. City of New York, Judge Toko Serito, May 14, 2019). Judge Serito found that at issue was “a matter implicating a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings,” citing “J. Doe No. 1” v. CBS Broadcasting, 24 A.D.3d 215 (1st Dep’t 2005).

Conclusion

Part two of this column, appearing later this month, will discuss pre-action and regular disclosure, evidentiary, and trial issues likely to be encountered in actions brought pursuant to the Child Victims Act. It will also review the other issues raised in Doe v. Roman Catholic Archdiocese of N.Y., as well as any other decisions that come down between now and then.

David Paul Horowitz is a member of McNamara & Horowitz in New York City, where he represents plaintiffs and defendants in personal injury actions. He is a Lecturer at Law at Columbia Law School, and serves as a legal malpractice expert, private arbitrator, mediator, and discovery referee. He can be reached at [email protected]. Lukas M. Horowitz is a 2019 graduate of Albany Law School, and will return as co-author next column now that the bar exam is over.