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”.