S T A T E   O F   N E W   Y O R K
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                                  9877

                          I N  A S S E M B L Y

                             April 20, 2016
                               ___________

Introduced by M. of A. MARKEY -- read once and referred to the Committee
  on Codes

AN ACT to amend the civil practice law and rules, the criminal procedure
  law,  the  court  of  claims  act  and  the  general municipal law, 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:

  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:
  (B) 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
BY SUCH PERSON WHO WAS EIGHTEEN YEARS OF AGE OR  LESS  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
255.25, 255.26 OR 255.27 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 EIGH-
TEEN YEARS OF AGE, SUCH ACTION MAY BE COMMENCED AT ANY TIME.
  S 2. The civil practice law and rules  is  amended  by  adding  a  new
section 214-f to  read as follows:
  S  214-F.  CERTAIN  CHILD  SEXUAL  ABUSE  CASES.   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
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
              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14941-01-6

A. 9877                             2

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 IS HEREBY REVIVED, AND  ACTION  THEREON
MAY  BE COMMENCED ON OR BEFORE ONE YEAR AFTER THE EFFECTIVE DATE OF THIS
SECTION, SUBJECT TO PARAGRAPH TWO OF SUBDIVISION (I) OF RULE  THIRTY-TWO
HUNDRED ELEVEN OF THIS CHAPTER.
  S  3.  Rule  3211  of  the  civil practice law and rules is amended by
adding a new subdivision (i) to read as follows:
  (I) 1. STANDARDS FOR MOTIONS TO DISMISS AND MOTIONS TO DISMISS  AFFIR-
MATIVE  DEFENSES  IN  CERTAIN ACTIONS IN WHICH THE COMMISSION OF CERTAIN
SEXUAL OFFENSES ARE ALLEGED. IN ANY ACTION COMMENCED AFTER THE EFFECTIVE
DATE OF THIS SUBDIVISION IN WHICH THE PLAINTIFF ALLEGES THAT HE  OR  SHE
HAS  BEEN THE VICTIM OF A SEXUAL OFFENSE AS SET FORTH IN SUBDIVISION (B)
OF SECTION TWO HUNDRED EIGHT OF THIS CHAPTER COMMITTED WHEN  THE  PLAIN-
TIFF WAS A CHILD UNDER THE AGE OF EIGHTEEN YEARS OF AGE:
  (I) WHERE THE PLAINTIFF IS TWENTY-THREE YEARS OF AGE OR OLDER WHEN THE
ACTION WAS COMMENCED, ANY AFFIRMATIVE DEFENSE OF LACHES, DELAY, OR MATE-
RIAL  IMPAIRMENT  IN THE DEFENSE OR INVESTIGATION OF THE CLAIM MUST ALSO
BE SUPPORTED BY A CERTIFICATE OF MERIT SUBMITTED BY A PERSON WITH  KNOW-
LEDGE  OF  THE  FACTS  SETTING  FORTH  THE  SPECIFIC MANNER IN WHICH THE
DEFENSE OR INVESTIGATION HAS BEEN AFFECTED.  SAID  CERTIFICATE  MUST  BE
FILED  AT OR BEFORE THE TIME IN WHICH THE ANSWER IS SERVED UNLESS OTHER-
WISE PROVIDED BY ORDER OF THE COURT; OR
  (II) WHERE THE PLAINTIFF SEEKS TO REVIVE AN ACTION PURSUANT TO SECTION
TWO HUNDRED FOURTEEN-F OF THIS CHAPTER AFTER THE EFFECTIVE DATE OF  THIS
SUBDIVISION WHICH HAD BEEN TIME BARRED, ANY AFFIRMATIVE DEFENSE OF LACH-
ES, DELAY, OR MATERIAL IMPAIRMENT IN THE DEFENSE OR INVESTIGATION OF THE
CLAIM  MUST  ALSO  BE SUPPORTED BY A CERTIFICATE OF MERIT SUBMITTED BY A
PERSON WITH KNOWLEDGE OF THE FACTS SETTING FORTH THE SPECIFIC MANNER  IN
WHICH  THE  DEFENSE OR INVESTIGATION HAS BEEN AFFECTED. SAID CERTIFICATE
MUST BE FILED AT OR BEFORE THE TIME  IN  WHICH  THE  ANSWER  IS  SERVED,
UNLESS OTHERWISE PROVIDED BY ORDER OF THE COURT.
  2. UPON MOTION BY ANY PARTY, THE COURT SHALL DETERMINE BY A PREPONDER-
ANCE  OF THE EVIDENCE, WHETHER DEFENDANT HAS SUSTAINED HIS OR HER BURDEN
OF PROOF ON ANY MOTION TO DISMISS  THE  ACTION  OR  ON  ANY  AFFIRMATIVE
DEFENSE IN WHICH IT IS ALLEGED THAT PREJUDICE HAS BEEN CAUSED TO DEFEND-
ANT  IN  THE  INVESTIGATION  OR DEFENSE OF THE ACTION DIRECTLY RESULTING
FROM A DELAY IN COMMENCING THE ACTION. A DEFENDANT SHALL NOT  BE  DEEMED
PREJUDICED SOLELY ON ACCOUNT OF THE PASSAGE OF TIME.
  3.  ANY  SUCH  AFFIRMATIVE  DEFENSE  SHALL  BE DISMISSED, AND ANY SUCH
MOTION TO DISMISS THE ACTION DENIED, IF THE COURT FINDS  THAT  PLAINTIFF
ACTED  IN  GOOD FAITH AND WITH DUE DILIGENCE IN PURSUING THE CLAIM UNDER
THE CIRCUMSTANCES,  WHICH  SHALL  INCLUDE  WHETHER  DEFENDANT  TOOK  ANY
ACTIONS  TO  IMPEDE  OR DELAY ANY INVESTIGATION OR PREVENT DISCLOSURE OF
THE FACTS ALLEGED TO THE PLAINTIFF OR TO THE GENERAL PUBLIC, AS WELL  AS
WHETHER  PLAINTIFF  TOOK  ANY  ACTIONS WHICH DELIBERATELY PREJUDICED THE
DEFENSE OR INVESTIGATION OF THE CLAIM.  NOTHING HEREIN SHALL  LIMIT  THE
COURT, IN ITS DISCRETION, FROM RESERVING ANY DISPUTED ISSUES OF FACT FOR
LATER DISPOSITION BY THE FINDER OF FACT.
  S  4.  Paragraph (f) of subdivision 3 of section 30.10 of the criminal
procedure law, as separately amended by chapters 3 and 320 of  the  laws
of 2006, is amended to read as follows:
  (f)  [For  purposes  of a] A prosecution involving a sexual offense as
defined in article one hundred thirty of the penal  law,  other  than  a
sexual  offense  delineated  in paragraph (a) of subdivision two of this
section, committed against a child less  than  eighteen  years  of  age,

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incest  in  the  first,  second  or  third degree as defined in sections
255.27, 255.26 and 255.25 of the penal law  committed  against  a  child
less  than eighteen years of age, or use of a child in a sexual perform-
ance as defined in section 263.05 of the penal law[, the period of limi-
tation  shall  not  begin  to run until the child has reached the age of
eighteen or the offense is reported  to  a  law  enforcement  agency  or
statewide  central  register  of child abuse and maltreatment, whichever
occurs earlier] MAY BE COMMENCED AT ANY TIME.
  S 5. Section 10 of the court of claims act is amended by adding a  new
subdivision 3-c to read as follows:
  3-C.  NOTWITHSTANDING  ANY  OTHER  PROVISIONS  OF LAW TO THE CONTRARY,
INCLUDING ANY OTHER SUBDIVISION OF THIS SECTION, REQUIRING AS  A  CONDI-
TION PRECEDENT TO COMMENCEMENT OF AN ACTION OR SPECIAL PROCEEDING THAT A
NOTICE  OF  CLAIM  BE FILED OR PRESENTED, ANY CAUSE OF ACTION BROUGHT BY
ANY PERSON AGAINST AN OFFICER OR EMPLOYEE OF  THE  STATE  FOR  PHYSICAL,
PSYCHOLOGICAL  OR  OTHER INJURY OR CONDITION SUFFERED BY SUCH PERSON WHO
WAS EIGHTEEN YEARS OF AGE OR LESS 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 255.25, 255.26 OR 255.27 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,
MAY BE COMMENCED AT ANY TIME.
  S  6. Section 50-i of the general municipal law is amended by adding a
new subdivision 5 to read as follows:
  5. NOTWITHSTANDING ANY  OTHER  PROVISIONS  OF  LAW  TO  THE  CONTRARY,
INCLUDING ANY OTHER SUBDIVISION OF THIS SECTION, SECTION FIFTY-E OF THIS
ARTICLE, SECTION THIRTY-EIGHT HUNDRED THIRTEEN OF THE EDUCATION LAW, AND
THE PROVISIONS OF ANY GENERAL, SPECIAL OR LOCAL LAW OR CHARTER REQUIRING
AS  A  CONDITION  PRECEDENT  TO  COMMENCEMENT  OF  AN  ACTION OR SPECIAL
PROCEEDING THAT A NOTICE OF CLAIM BE FILED OR PRESENTED,  ANY  CAUSE  OF
ACTION BROUGHT BY ANY PERSON AGAINST A CITY, COUNTY, TOWN, VILLAGE, FIRE
DISTRICT  OR SCHOOL DISTRICT FOR PHYSICAL, PSYCHOLOGICAL OR OTHER INJURY
OR CONDITION SUFFERED BY SUCH PERSON WHO WAS EIGHTEEN YEARS  OF  AGE  OR
LESS  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  255.25, 255.26 OR 255.27 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, MAY BE COMMENCED AT ANY TIME.
  S 7. The provisions of this act shall be severable, and if any clause,
sentence, paragraph, subdivision or part of this act shall  be  adjudged
by  any  court  of  competent  jurisdiction to be invalid, such judgment
shall not affect, impair, or invalidate the remainder thereof, but shall
be confined in its operation to the clause, sentence, paragraph,  subdi-
vision  or  part  thereof  directly involved in the controversy in which
such judgment shall have been rendered.
  S 8. This act shall take effect immediately.