United States: Filings Begin Under New York's Child Victim Act: Know The Rules

Seyfarth Synopsis: The Child Victim Act is now law and will have a significant impact on New York’s educational and religious institutions and other civic organizations that care for children. It extends the Statute of Limitations an additional 22 years so that victims of childhood sexual abuse can now initiate suit until age 55. When it passed, on February 14th, 2019, it also imposed a six month moratorium as to the filing of any cases. Tomorrow the moratorium lifts and hundreds if not thousands, of cases are expected to be filed, in short order, throughout New York State. Following the CVA’s legislative mandate New York’s judiciary has promulgated certain rules to deal with the expected filings. These rules will impact how these cases go forward. 

What is the Child Victim Act? 

The Child Victim Act (“CVA”) is New York based legislation designed to protect childhood victims of sexual abuse. Its passage drastically changes New York’s strict statute of limitations for sex abuse cases and rectify the fact that many victims of sexual abuse had forfeited their right to redress by not reporting their abuse until after the statutory limitations period had expired. 

The previous law, one of the strictest in the nation, required alleged victims of sexual abuse to initiate any civil lawsuit before their twenty-third birthday. The CVA now allows alleged victims to bring civil lawsuits until their fifty-fifth birthday and further, it provides an open one-year window to revive old cases where the statute of limitations has passed regardless of the age of the victim. That window opens tomorrow--August 14, 2019.

Rules To Facilitate The Prompt Disposition Of Matters Revised Under The Child Victims Act Of 2019

Among the CVA's provisions is a requirement that the Unified Court System enact rules "for the timely adjudication of revived actions" commenced pursuant to CPLR 214-g, the new provision of the CPLR which extends the statute of limitations asserting such claims. Thereafter, on May 10, 2019 the Office of Court Administration sought public comment on proposed rules to facilitate the prompt disposition of cases revived under the CVA. The comments, which were due on July 1, 2019 and made publicly available thereafter, made certain suggestions that found their way into the final rules (Part 202.72 of the Uniform Civil Rules for the Supreme Court entitled “Actions Revived Pursuant to CPLR 214-g.” Promulgated pursuant to an order dated July 19, 2019 the rules, which set forth how CVA cases are to be handled, state as follows:  

  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 section 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.

The rule, as promulgated after the comment period, accelerated the time to hold a preliminary conference from the proposed 45 days to 30 after the filing of an RJI. However, it also extended the time to complete discovery from 180 to 365 days. Perhaps tipping its hand on the likelihood of adhering to this schedule, the rule expressly states that “Judges and other court personnel shall ‘aspire’ to the timetable set forth above.”

Also making its way into the final rule are the added considerations provided during the public comment period:  

  1. 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.

Perhaps one benefit of the six month moratorium was that litigants on either side of the equation were able to use the six months to carefully consider some of the practical concerns that would stem from too aggressive a timetable, and the OCA apparently listened. 

The remainder of the rule comes almost verbatim out of the proposal: 

  1. 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.  
  2. 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.  
  3. Any party claiming a preference under CPLR 3403(7) may apply to the court in the manner prescribed by that section.

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 at https://www.nycourts.gov/courthelp/.

Conclusion

After a long and often heated debate the CVA is now the law, and with it will come the expected lawsuits and arguments that will work their way through the courts as to what the statute means, and how these cases should best be handled, notwithstanding the tacit acknowledgment that the timetable is aspirational. But it is clear that many of the other considerations--insurance coverage, appellate rights, inherent discovery problems, and use of ADR to name a few, made it to the OCR’s radar screen before a single CVA case was ever filed. It will be interesting to see how these type of issues play out, and how the dedicated Parts, with dedicated Judges handling these cases, may use this opportunity to alter the judicial landscape. As this author explained in a recent Wall Street Journal article discussing the impact of the impending influx of cases, “the hardest part is the unknown”. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions