school negligence book 

While the passage of New York's Child Victims Act was undoubtedly significant, many claims still fall outside its purview, which, in the interests of full disclosure, was at the forefront of a case I recently handled in New York County Supreme Court, and I was in the unusual situation of defending someone against claims that he had fondled the plaintiff (and possibly, but not certainly did more) during work-related sleepovers at the defendant's home, while the plaintiff was not fully conscious. In that case, the plaintiff claimed entitlement to recovery of damages under 10 different legal theories, including: 

  1. Assault;
  2. Battery;
  3. Intentional Infliction of Emotional Distress;
  4. Negligent Infliction of Emotional Distress;
  5. False Imprisonment;
  6. Negligence;
  7. Fraud;
  8. Negligent Misrepresentation;
  9. Business Fraud Pursuant to General Business Law §349; and,
  10. Tortious Interference with Prospective Economic Advantage. 

(Yes, the reason I was brought in to help defend the action was largely due to my experience dealing with claims pertaining to tortious interference).

In any event, the plaintiff was unable to make it out of the starting gate regarding the vast majority of his claims, and the court dismissed them at the outset because try as he might, his claims did not fall within the ambit of the protections afforded by the Child Victims Act, and were therefore barred.

The Usual Statute of Limitations for Assault Claims

CPLR 215, entitled “Actions to be commenced within one year,” provides, in pertinent part, as follows:

Ҥ 215. Actions to be commenced within one year

3. an action to recover damages for assault, battery, false imprisonment …”

Consequently, unless the alleged acts fall within one of the statutorily enumerated exceptions to the one-year statute of limitations for intentional acts, those claims must be dismissed as a matter of law. Recognizing this fact, New York adopted CPLR 213-c and New York State Senate Bill S6574, which invokes a one-year revival toll on certain claims for sexual assault pursuant to CPLR 208(b), which enlarges some plaintiffs’ claims stemming from a sexual assault which fall within few, statutorily prescribed categories, most important of which is that the toll afforded by CPLR 208(b) only applies to those plaintiffs who were under 18 years of age at the time their claims accrued.

The 5 Categories of Claims Covered by the Child Victims Act

Second, CPLR 213-c, which became effective on September 18, 2019, specifies five (5) different categories of sexual offenses for which the statute of limitations is now 20 years: 1) rape; 2) incest; 3) sexual conduct against a child in the first degree; 4) a criminal sexual act in the first, second or third degree; or, 5) aggravated sexual abuse in the first degree.

Thus, and perhaps contrary to popular misconception, the Child Victims Act is not a catch-all for claims pertaining to any unwanted touching; broadly speaking, it only covers those claims pertaining to verified acts of sexual acts. 

Since, in this particular case, the plaintiff was over 18 years old when these suspected (and unverified) acts allegedly took place, the plaintiff did not even allege that any overtly sexual acts did in fact take place, and these purported acts transpired several years before the claim was filed in court, the court took the unusual step of dismissing these claims at the pleading stage - i.e., before any discovery took place. 

 

 

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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