A05488 Summary:

BILL NO    A05488 

SAME AS    No same as 

SPONSOR    Markey (MS)

COSPNSR    Millman, Brennan, Galef, Glick, Aubry, Pretlow, Jaffee, Latimer,
           Gunther, Englebright, Lancman, Stevenson, Murray, Rosenthal, Hooper,
           Brindisi, Castro, Goldfeder, Paulin, Roberts, Barrett, Hevesi,
           Linares, Simotas

MLTSPNSR   Arroyo, Burling, Clark, Gottfried, Hawley, Jacobs, Magee, McEneny,
           McLaughlin, Nolan, Ramos, Russell, Sweeney, Weisenberg

Amd S3010, CP L; amd S308, add S3012-b, CPLR

Establishes the period of limitation for the prosecution of a sex offense
defined in article 130 of the penal law, incest in the first, second or third
degrees or use of a child in a sexual performance committed against a person
less than eighteen years of age shall not begin to run until the person has
reached the age of twenty-three or the offense is reported to law enforcement
or the statewide central register of child abuse and maltreatment, whichever
occurs earlier; allows civil claims or causes of action brought by any person
for physical, psychological or other injury or condition suffered as a result
of conduct that is a sex offense as defined in article 130 of or the penal law,
incest or use of a child in a sexual performance committed against a child who
was less that eighteen years of age at the time shall be allowed to be
commenced five years after the child reaches the age of twenty-three; revives
for 1 year, any such civil claim or cause of action which was barred because
the applicable statute of limitations expired.
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A05488 Actions:

BILL NO    A05488 

02/22/2011 referred to codes
01/04/2012 referred to codes
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A05488 Votes:

There are no votes for this bill in this legislative session.
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A05488 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5488
 
SPONSOR: Markey (MS)
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to the timeliness of prosecutions for certain sex offenses; and 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 criminal Procedure Law and the civil Practice Law an4 Rules to extend the statute of limitations for criminal and civil actions for sex offenses under article one hundred thirty of the Penal Law committed against a child less than eighteen years of age, for incest against a child less then eighteen years of age or the use of a child in a sexual performance.   SUMMARY OF PROVISIONS: Section one of the bill amends the Criminal Procedure Law to increase the criminal statute of limitation for the prosecution of certain sex.offenses committed against a child under the age of eighteen, for incest against a child less then eighteen years of age or the use of a child in a sexual performance. The period of limita- tion would not begin to run until the child reaches the age of 23 years or the offense is reported to a law enforcement agency or the statewide central register of child abuse and maltreatment. Section two of the bill would extend the civil statute of limitation for causes of action to remedy injuries or conditions 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. Such action would have to be commenced within five years after the child reaches the age of 23 years. Under current law, the criminal statute of limitations in child sexual abuse cases in which a victim does not report the crime to law enforce- ment is not applied until the victim reaches age 18. This bill would add five years to the statute; so that the five year statute of limitations in such cases would not begin to run until the victim turned age 23 (extending the time for prosecution until a child victim reached age 28). Section three of the bill would revive expired civil causes of action based on 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. Persons for whom the right to bring a civil action has been foreclosed because of the current civil statute of limitations bar would be given a one-year "window period" from the date of enactment of the bill, regardless of their age, in which to bring an action to recover damages for any past instance of child sexual abuse. Prior to the commencement of the action, the plain- tiff must obtain a certificate of merit by a mental health expert that states in reasonable detail the facts and opinions relied upon for concluding that the plaintiff was a victim of sexual abuse. The complaint shall be accompanied by a certificate of merit as described in subdivision (c) of this section. Section four of the bill is a savings clause. Section five of the bill is the effective date. The bill would take effect immediately but section three which revives expired claims would take effect 60 days after becoming law.   JUSTIFICATION: Sex crimes, particularly those committed against chil- dren, 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. This proposal would extend the authority to prosecute and to bring a civil lawsuit for damages in child sexual abuse cases in three significant ways, regardless of whether or not DNA evidence is available. This bill will provide a remedy for those whose lives have been unalterably changed by the horror of child- hood sexual abuse. Victims of these horrific crimes will get their day in court and be able to seek the justice they have been denied.   LEGISLATIVE HISTORY: A11723/S8053 - June 20, 2006 Passed in the Assem- bly A4560/S4614 - June 4, 2007 Passed in the Assembly A4560-B/S4614A - June 11, 2008 Passed in the Assembly   FISCAL IMPLICATIONS: None   LOCAL FISCAL IMPLICATIONS: None   EFFECTIVE DATE: Immediately
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A05488 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5488
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 22, 2011
                                       ___________
 
        Introduced  by  M.  of A. MARKEY, MILLMAN, BRENNAN, GALEF, GLICK, AUBRY,
          MAYERSOHN, PRETLOW, JAFFEE, LATIMER, GUNTHER, HIKIND,  ENGLEBRIGHT  --
          Multi-Sponsored  by  --  M.  of  A.   CLARK, GOTTFRIED, JACOBS, MAGEE,
          RAMOS, RUSSELL -- read once and referred to the Committee on Codes
 
        AN ACT to amend the criminal procedure law, in relation to  the  timeli-

          ness  of prosecutions for certain sex offenses; and 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. Paragraph (f) of subdivision 3  of  section  30.10  of  the
     2  criminal  procedure  law, as separately amended by chapters 3 and 320 of
     3  the laws of 2006, is amended to read as follows:
     4    (f) For purposes of  a  prosecution  involving  a  sexual  offense  as
     5  defined  in  article  one  hundred thirty of the penal law, other than a
     6  sexual offense delineated in paragraph (a) of subdivision  two  of  this
     7  section,  committed  against  a  child  less than eighteen years of age,
     8  incest in the first, second or  third  degree  as  defined  in  sections

     9  255.27,  255.26  and  255.25  of the penal law committed against a child
    10  less than eighteen years of age, or use of a child in a sexual  perform-
    11  ance  as defined in section 263.05 of the penal law, the period of limi-
    12  tation shall not begin to run until the child has  reached  the  age  of
    13  [eighteen]  twenty-three or the offense is reported to a law enforcement
    14  agency or statewide central register of child  abuse  and  maltreatment,
    15  whichever occurs earlier.
    16    §  2.  The  opening paragraph of section 208 of the civil practice law
    17  and rules is designated subdivision (a) and a  new  subdivision  (b)  is
    18  added to read as follows:
    19    (b) Notwithstanding the provisions of subdivision (a) of this section,
    20  with  respect  to  all  civil  claims or causes of action brought by any

    21  person for physical, psychological or other injury or condition suffered
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08258-01-1

        A. 5488                             2
 
     1  as a result of conduct  which  would  constitute  a  sexual  offense  as
     2  defined in article one hundred thirty of the penal law committed against
     3  a  child  less  than eighteen years of age, incest as defined in section
     4  255.25, 255.26 or 255.27 of the penal law committed against a child less
     5  than  eighteen  years of age, or the use of a child in a sexual perform-

     6  ance as defined in section 263.05 of the penal  law,  or  a  predecessor
     7  statute  that  prohibited  such  conduct  at  the time of the act, which
     8  conduct was committed against a child less than eighteen years  of  age,
     9  the  time within which the action must be commenced shall be extended to
    10  five years after the person reaches the age of twenty-three years.
    11    § 3. The civil practice law and rules  is  amended  by  adding  a  new
    12  section 3012-b to  read as follows:
    13    §  3012-b. Certain child sexual abuse cases; certificate of merit. (a)
    14  Notwithstanding any provision of law which imposes a period  of  limita-
    15  tion  to the contrary, every civil claim or cause of action brought by a
    16  person  for  physical,  psychological,  or  other  injury  or  condition

    17  suffered  as a result of conduct which would constitute a sexual offense
    18  as defined in article one hundred thirty  of  the  penal  law  committed
    19  against  a  child  less than eighteen years of age, incest as defined in
    20  section 255.25, 255.26 or 255.27 of the penal law  committed  against  a
    21  child less than eighteen years of age, or the use of a child in a sexual
    22  performance  as  defined in section 263.05 of the penal law, or a prede-
    23  cessor statute that prohibited such conduct at  the  time  of  the  act,
    24  which  conduct was committed against a child less than eighteen years of
    25  age, which is barred as of the effective date of  this  section  because
    26  the  applicable  period of limitation has expired is hereby revived, and

    27  action thereon may be commenced provided that such action  is  commenced
    28  within one year of the effective date of this section.
    29    (b)  In any action brought pursuant to subdivision (a) of this section
    30  for physical, psychological, or other injury or condition suffered as  a
    31  result  of  conduct which would constitute a sexual offense as described
    32  in subdivision (a) of this section, the complaint shall  be  accompanied
    33  by  a  certificate  of  merit  as  described  in subdivision (c) of this
    34  section.
    35    (c) A certificate of merit filed pursuant to subdivision (b)  of  this
    36  section  shall  be  filed  by  the  attorney for the plaintiff and shall
    37  contain a notarized statement by a qualified psychiatrist, as defined in

    38  section 9.01 of the mental  hygiene  law,  a  psychologist  as  licensed
    39  pursuant  to  article one hundred fifty-three of the education law, or a
    40  person in the practice of mental health counseling, as defined in subdi-
    41  vision one of section eighty-four hundred two of the education law,  who
    42  is  knowledgeable  in  the  relevant  facts  and  issues involved in the
    43  particular action, and states in reasonable detail the facts  and  opin-
    44  ions  that  the  person  has  relied upon for concluding that there is a
    45  reasonable basis to believe that the plaintiff has been subject  to  one
    46  or  more acts of child sexual abuse of the type described in subdivision
    47  (a) of this section. The person providing such statement may  not  be  a
    48  party to the litigation.

    49    (d) Where a certificate is required pursuant to this section, a single
    50  certificate  shall  be  filed  for  each  action,  even if more than one
    51  defendant has been named in the complaint or is subsequently named.
    52    § 4. The provisions of this act shall be severable, and if any clause,
    53  sentence, paragraph, subdivision or part of this act shall  be  adjudged
    54  by  any  court  of  competent  jurisdiction to be invalid, such judgment
    55  shall not affect, impair, or invalidate the remainder thereof, but shall
    56  be confined in its operation to the clause, sentence, paragraph,  subdi-

        A. 5488                             3
 
     1  vision  or  part  thereof  directly involved in the controversy in which
     2  such judgment shall have been rendered.
     3    §  5.  This  act  shall take effect immediately, provided that section

     4  three of this act shall take effect on the sixtieth day after  this  act
     5  shall have become a law.
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