NY State Senate Bill 2015-S7296

Senate Bill S7296

2015-2016 Legislative Session

Revives civil actions for certain sex offenses committed against a person less than eighteen years of age

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Apr 13, 2016	referred to judiciary

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2015-S7296 (ACTIVE) - Details

See Assembly Version of this Bill:: A9877
Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §208 & R3211, add §214-f, CPLR; amd §30.10, CP L; amd §10, Ct Claims Act; amd §50-i, Gen Muni L
Versions Introduced in 2017-2018 Legislative Session:: S809

2015-S7296 (ACTIVE) - Summary

Revives civil actions for certain sex offenses committed against a person less than eighteen years of age.

2015-S7296 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7296

 TITLE OF BILL :

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

 PURPOSE :

This bill eliminates the statutes of limitation for prosecuting child
sexual abuse crimes and filing civil lawsuits for damages against
individuals, public institutions, and private institutions related to
child sexual abuse. This act also creates a one-year revival period
for 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. Amends section 208 of the civil practice law and rules to
state that 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, may be commenced at any time.

Section 2. Adds a new section 3012-c to the civil practice law and
rules stating that 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 prohibited 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 limitation 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. Amends rule 3211 of the civil practice law and rules to set
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. Amends section 30.10 of the criminal procedure law to state
that a prosecution involving 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 may be commenced at any time.

Section 5. Amends section 10 of the court of claims act to state that
notwithstanding any other section of law 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
against an officer of employee of the state 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 prohibited such conduct
at the time of the act, which conduct was committed against a child
less than 18 years of age, may be commenced at any time.

Section 6. Amends section 50-i of the general municipal law to state
that notwithstanding any other section of law 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
against a city, county, town, village, fire district or school
district 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 prohibited such conduct at the time of the act, which conduct was
committed against a child less than 18 years of age, may be commenced
at any time.

Section 7. Severance clause.

Section 8. Effective date.

 JUSTIFICATION :

According to the United State Department of Justice, approximately 1.8
million adolescents in the U.S. have been the victims of sexual
assault. An estimated 9015 of perpetrators of sexual abuse are known
to the child, with about a third being family members. As a result,
disclosure of sexual abuse is often delayed, usually until adulthood.
Children often avoid telling anyone because they are afraid of a
negative reaction or of further abuse or harm at the hands of their
abuser.

Unfortunately for survivors of child sexual abuse, New York State does
not currently provide much opportunity for legal recourse. According
to constitutional scholar and Cardozo Law School Professor Marci
Hamilton, New York is one of the worst states in the nation for child
sexual abuse statutes of limitation, along with Georgia, Mississippi,
Alabama, and Michigan.

Under current law, survivors of child sexual abuse have until their
23rd birthday to bring criminal charges against their abusers for most
felony sexual abuse crimes. They have the same amount of time to bring
a civil lawsuit against their abuser.

A horrific pattern of child sexual abuse scandals has shown us that
now more than ever we need to change how we view the statutes of
limitation in cases of child sexual abuse.
This bill would remedy the situation in New York by eliminating the
statutes of limitation for prosecuting child sexual abuse crimes and
filing civil lawsuits for damages against individuals, public
institutions, and private institutions related to child sexual abuse.

This act also creates a one-year revival period for 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.

By eliminating the statutes of limitation in childhood sexual abuse
cases, victims of these horrific crimes will get their day in court
and finally be able to seek the justice they have been denied.

 LEGISLATIVE HISTORY :

New Bill

 FISCAL IMPLICATIONS :

To be determined

 EFFECTIVE DATE :
Immediately

2015-S7296 (ACTIVE) - Bill Text download pdf

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

                                  7296

                            I N  S E N A T E

                             April 13, 2016
                               ___________

Introduced  by  Sens. HOYLMAN, STEWART-COUSINS, COMRIE, DILAN, GIANARIS,
  KENNEDY, KRUEGER, PANEPINTO, PERALTA, PERKINS, RIVERA, SERRANO -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee on Judiciary

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

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

                                                           LBD14941-01-6

S. 7296                             2

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, 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. 7296                             3

  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,
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

S. 7296                             4

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.

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