NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2872A
SPONSOR: Markey (MS) TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to the timeliness for commencing certain civil actions related
to sex offenses
PURPOSE:
The bill amends the Civil Practice Law and Rules to allow, under certain
circumstances, the revival of previously time barred civil actions which
alleged conduct representing the commission of certain sexual offenses
committed against a child less than eighteen years of age.
SUMMARY OF PROVISIONS:
Section 1. The opening paragraph of section 208 of the civil practice
law and rules is designated subdivision (a) and a new subdivision (b) is
added to read as follows: Notwithstanding the provisions of subdivision
(a) of this section, with respect to all civil claims or causes of
action brought by any 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 255.25, 255.26 or 255.27 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, such action may be commenced at any time.
Section 2. The civil practice law and rules is amended by adding a new
section 3012-c to read as follows: § 3012-c. Certain child sexual abuse
cases (a) Notwithstanding any provision of law which imposes a period of
limitation to the contrary, every civil claim or cause of action brought
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 130 of the penal law committed against a child
less than 18 years of age, incest as defined in section 255.25, 255.26
or 255.27 of the penal law committed against a child less than 18 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 prohibit-
ed such conduct at the time of the act, which conduct was committed
against a child less than 18 years of age, which is barred as of the
effective date of this section because the applicable period of limita-
tion has expired is hereby revived, and action thereon may be commenced
on or before one year after the effective date of this section.
Section 3. This section sets standards for motions to dismiss such
actions, and to dismiss affirmative defenses in these actions. In any
such action in which the plaintiff is twenty-three years of age or
older, or in which plaintiff seeks to revive a time-barred action, any
motion to dismiss an action, or in opposition to a motion to dismiss an
affirmative defense based upon laches or material impairment in the
defense or investigation of such an action must be supported by a
certificate of merit from a person with knowledge of the facts. Upon
such motion, it shall be a defendant's burden to demonstrate same by a
preponderance of the evidence, and the court shall consider whether
plaintiff acted in good faith and with due diligence in pursuing the
action.
Section 4. Saving Clause.
Section 5. Effective date.
JUSTIFICATION:
Syracuse University, Penn State University, and the Horace Mann school
scandals have shown us that now more than ever we need to change how we
view the statute of limitations in cases of child sexual abuse.
Sex crimes, particularly those committed against children, are among the
most heinous and deeply disturbing in our society. They are crimes that
leave life-long scars, multiple victims and require an all encompassing
strategy to combat. Victims of childhood sexual abuse do not come to
terms with their abuse until well into adulthood. Under current law they
have no recourse. By eliminating the statute of limitations on childhood
sexual abuse cases victims can bring their claims regardless of whether
or not DNA evidence is available.
By eliminating the statute of limitations in childhood sexual abuse
cases, victims of these horrific crimes will get their day in court and
be able to seek the justice they have been denied.
LEGISLATIVE HISTORY:
A1771 of 2014
A10814B of 2012
FISCAL IMPLICATIONS:
To be determined.
LOCAL FISCAL IMPLICATIONS:
To be determined
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
2872--A
2015-2016 Regular Sessions
IN ASSEMBLY
January 20, 2015
___________
Introduced by M. of A. MARKEY, SEPULVEDA, MILLER, ENGLEBRIGHT, GUNTHER,
BRINDISI, ROBERTS, OTIS, JAFFEE, ROBINSON, STIRPE, AUBRY, KEARNS,
SIMOTAS, CLARK, GALEF, HOOPER, MOSLEY, RUSSELL, ROSENTHAL, LIFTON,
BARRETT, NOJAY, PAULIN, PERRY, SKOUFIS, BROOK-KRASNY, COOK, DINOWITZ,
SALADINO, GRAF, LALOR, PICHARDO, BRABENEC, ARROYO, PALUMBO, WALKER,
KAMINSKY, LINARES, CURRAN, MURRAY, WEPRIN, JOHNS, BICHOTTE -- Multi-
Sponsored by -- M. of A. BLANKENBUSH, BRENNAN, CERETTO, CROUCH, FAHY,
GLICK, HAWLEY, HEVESI, KATZ, LOPEZ, MAGEE, ORTIZ, PRETLOW, RIVERA,
SIMON, TENNEY, WOZNIAK -- read once and referred to the Committee on
Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the civil practice law and rules, in relation to the
timeliness for commencing certain civil actions related to sex
offenses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of section 208 of the civil practice
2 law and rules is designated subdivision (a) and a new subdivision (b) is
3 added to read as follows:
4 (b) Notwithstanding the provisions of subdivision (a) of this section,
5 with respect to all civil claims or causes of action brought by any
6 person for physical, psychological or other injury or condition suffered
7 by such person who was eighteen years of age or less as a result of
8 conduct which would constitute a sexual offense as defined in article
9 one hundred thirty of the penal law committed against such person who
10 was less than eighteen years of age, incest as defined in section
11 255.25, 255.26 or 255.27 of the penal law committed against such person
12 who was less than eighteen years of age, or the use of such person in a
13 sexual performance as defined in section 263.05 of the penal law, or a
14 predecessor statute that prohibited such conduct at the time of the act,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01379-07-5
A. 2872--A 2
1 which conduct was committed against such person who was less than eigh-
2 teen years of age, such action may be commenced at any time.
3 § 2. The civil practice law and rules is amended by adding a new
4 section 214-f to read as follows:
5 § 214-f. Certain child sexual abuse cases. Notwithstanding any
6 provision of law which imposes a period of limitation to the contrary,
7 every civil claim or cause of action brought by a person for physical,
8 psychological, or other injury or condition suffered as a result of
9 conduct which would constitute a sexual offense as defined in article
10 one hundred thirty of the penal law committed against a child less than
11 eighteen years of age, incest as defined in section 255.25, 255.26 or
12 255.27 of the penal law committed against a child less than eighteen
13 years of age, or the use of a child in a sexual performance as defined
14 in section 263.05 of the penal law, or a predecessor statute that
15 prohibited such conduct at the time of the act, which conduct was
16 committed against a child less than eighteen years of age, which is
17 barred as of the effective date of this section because the applicable
18 period of limitation has expired is hereby revived, and action thereon
19 may be commenced on or before one year after the effective date of this
20 section, subject to paragraph two of subdivision (i) of rule thirty-two
21 hundred eleven of this chapter.
22 § 3. Rule 3211 of the civil practice law and rules is amended by
23 adding a new subdivision (i) to read as follows:
24 (i) 1. Standards for motions to dismiss and motions to dismiss affir-
25 mative defenses in certain actions in which the commission of certain
26 sexual offenses are alleged. In any action commenced after the effective
27 date of this subdivision in which the plaintiff alleges that he or she
28 has been the victim of a sexual offense as set forth in subdivision (b)
29 of section two hundred eight of this chapter committed when the plain-
30 tiff was a child under the age of eighteen years of age:
31 (i) where the plaintiff is twenty-three years of age or older when the
32 action was commenced, any affirmative defense of laches, delay, or mate-
33 rial impairment in the defense or investigation of the claim must also
34 be supported by a certificate of merit submitted by a person with know-
35 ledge of the facts setting forth the specific manner in which the
36 defense or investigation has been affected. Said certificate must be
37 filed at or before the time in which the answer is served unless other-
38 wise provided by order of the court; or
39 (ii) where the plaintiff seeks to revive an action pursuant to section
40 two hundred fourteen-f of this chapter after the effective date of this
41 subdivision which had been time barred, any affirmative defense of lach-
42 es, delay, or material impairment in the defense or investigation of the
43 claim must also be supported by a certificate of merit submitted by a
44 person with knowledge of the facts setting forth the specific manner in
45 which the defense or investigation has been affected. Said certificate
46 must be filed at or before the time in which the answer is served,
47 unless otherwise provided by order of the court.
48 2. Upon motion by any party, the court shall determine by a preponder-
49 ance of the evidence, whether defendant has sustained his or her burden
50 of proof on any motion to dismiss the action or on any affirmative
51 defense in which it is alleged that prejudice has been caused to defend-
52 ant in the investigation or defense of the action directly resulting
53 from a delay in commencing the action. A defendant shall not be deemed
54 prejudiced solely on account of the passage of time.
55 3. Any such affirmative defense shall be dismissed, and any such
56 motion to dismiss the action denied, if the court finds that plaintiff
A. 2872--A 3
1 acted in good faith and with due diligence in pursuing the claim under
2 the circumstances, which shall include whether defendant took any
3 actions to impede or delay any investigation or prevent disclosure of
4 the facts alleged to the plaintiff or to the general public, as well as
5 whether plaintiff took any actions which deliberately prejudiced the
6 defense or investigation of the claim. Nothing herein shall limit the
7 court, in its discretion, from reserving any disputed issues of fact for
8 later disposition by the finder of fact.
9 § 4. The provisions of this act shall be severable, and if any clause,
10 sentence, paragraph, subdivision or part of this act shall be adjudged
11 by any court of competent jurisdiction to be invalid, such judgment
12 shall not affect, impair, or invalidate the remainder thereof, but shall
13 be confined in its operation to the clause, sentence, paragraph, subdi-
14 vision or part thereof directly involved in the controversy in which
15 such judgment shall have been rendered.
16 § 5. This act shall take effect immediately.
