Bill Text: NY A10600 | 2015-2016 | General Assembly | Introduced
Bill Title: Provides that the statute of limitations for criminal prosecution of a sexual offense committed against a child shall not begin to run until the child turns 23 years of age; provides that a civil action for conduct constituting a sexual offense against a child, shall be brought before the child turns 28 years of age; revives previously barred actions related to sexual abuse of children; grants civil trial preference to such actions; eliminates the notice of claim requirements for such actions when the action is brought against a municipality, the state or a school district; designates members of the clergy as persons required to report cases of suspected child abuse or maltreatment; requires judicial training relating to child abuse and the establishment of rules relating to civil actions brought for sexual offenses committed against children.
Spectrum: Partisan Bill (Democrat 45-1)
Status: (Introduced - Dead) 2016-06-17 - held for consideration in rules [A10600 Detail]
Download: New_York-2015-A10600-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10600 IN ASSEMBLY June 7, 2016 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Markey, Dinowitz, Morelle, Sepulveda, Englebright, Gunther, Otis, Jaffee, Robinson, Stirpe, Aubry, Simotas, Galef, Hooper, Mosley, Russell, Rosenthal, Lifton, Barrett, Paulin, Cook, Arroyo, Walker, Linares, Weprin, Bichotte, Lavine, O'Donnell, Simon, Blake, Cahill, Seawright, Barron, Buchwald, Bronson, Solages, Brindisi, Fahy, Glick, Hevesi, Hyndman, Ortiz, Pretlow, Rivera) -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to the statute of limitations in criminal prosecution of a sexual offense, committed against a child; to amend the civil practice law and rules, in relation to the statute of limitations for civil actions related to a sexual offense committed against a child, reviving such actions other- wise barred by the existing statute of limitations and granting trial preference to such actions; to amend the general municipal law, in relation to providing that the notice of claim provisions shall not apply to such actions; to amend the court of claims act, in relation to providing that the notice of intention to file provisions shall not apply to such actions; to amend the education law, in relation to providing that the notice of claim provisions shall not apply to such actions; to amend the social services law, in relation to designating members of the clergy as persons required to report cases of suspected child abuse or maltreatment; and to amend the judiciary law, in relation to judicial training relating to sexual abuse of minors and rules reviving civil actions relating to sexual offenses committed against children The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph (f) of subdivision 3 of section 30.10 of the 2 criminal procedure law, as separately amended by chapters 3 and 320 of 3 the laws of 2006, is amended to read as follows: 4 (f) For purposes of a prosecution involving a sexual offense as 5 defined in article one hundred thirty of the penal law, other than a 6 sexual offense delineated in paragraph (a) of subdivision two of this EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15787-02-6A. 10600 2 1 section, committed against a child less than eighteen years of age, 2 incest in the first, second or third degree as defined in sections 3 255.27, 255.26 and 255.25 of the penal law committed against a child 4 less than eighteen years of age, or use of a child in a sexual perform- 5 ance as defined in section 263.05 of the penal law, the period of limi- 6 tation shall not begin to run until the child has reached the age of 7 [eighteen] twenty-three or the offense is reported to a law enforcement 8 agency or statewide central register of child abuse and maltreatment, 9 whichever occurs earlier. 10 § 2. The opening paragraph of section 208 of the civil practice law 11 and rules is designated subdivision (a) and a new subdivision (b) is 12 added to read as follows: 13 (b) Notwithstanding any provision of law which imposes a period of 14 limitation to the contrary, with respect to all civil claims or causes 15 of action brought by any person for physical, psychological or other 16 injury or condition suffered by such person as a result of conduct which 17 would constitute a sexual offense as defined in article one hundred 18 thirty of the penal law committed against such person who was less than 19 eighteen years of age, incest as defined in section 255.27, 255.26 or 20 255.25 of the penal law committed against such person who was less than 21 eighteen years of age, or the use of such person in a sexual performance 22 as defined in section 263.05 of the penal law, or a predecessor statute 23 that prohibited such conduct at the time of the act, which conduct was 24 committed against such person who was less than eighteen years of age, 25 such action may be commenced, against any party whose intentional or 26 negligent acts or omissions are alleged to have resulted in the commis- 27 sion of said conduct, on or before the plaintiff or infant plaintiff 28 reaches the age of twenty-eight years. In any such claim or action, in 29 addition to any other defense and affirmative defense that may be avail- 30 able in accordance with law, rule or the common law, to the extent that 31 the acts alleged in such action are of the type described in subdivision 32 one of section 130.30 of the penal law or subdivision one of section 33 130.45 of the penal law, the affirmative defenses set forth, respective- 34 ly, in the closing paragraph of such section of the penal law shall 35 apply. 36 § 3. The civil practice law and rules is amended by adding a new 37 section 214-f to read as follows: 38 § 214-f. Certain child sexual abuse cases. Notwithstanding any 39 provision of law which imposes a period of limitation to the contrary, 40 every civil claim or cause of action brought by a person for physical, 41 psychological, or other injury or condition suffered as a result of 42 conduct which would constitute a sexual offense as defined in article 43 one hundred thirty of the penal law committed against a child less than 44 eighteen years of age, incest as defined in section 255.27, 255.26 or 45 255.25 of the penal law committed against a child less than eighteen 46 years of age, or the use of a child in a sexual performance as defined 47 in section 263.05 of the penal law, or a predecessor statute that 48 prohibited such conduct at the time of the act, which conduct was 49 committed against a child less than eighteen years of age, which is 50 barred as of the effective date of this section because the applicable 51 period of limitation has expired is hereby revived, and action thereon 52 may be commenced not earlier than six months after, and not later than 53 one year after the effective date of this section, subject to paragraph 54 two of subdivision (i) of rule thirty-two hundred eleven of this chap- 55 ter. In any such claim or action, in addition to any other defense and 56 affirmative defense that may be available in accordance with law, ruleA. 10600 3 1 or the common law, to the extent that the acts alleged in such action 2 are of the type described in subdivision one of section 130.30 of the 3 penal law or subdivision one of section 130.45 of the penal law, the 4 affirmative defenses set forth, respectively, in the closing paragraph 5 of such section of the penal law shall apply. 6 § 4. Rule 3211 of the civil practice law and rules is amended by 7 adding a new subdivision (i) to read as follows: 8 (i) Standards for motions to dismiss and motions to dismiss affirma- 9 tive defenses in certain actions in which conduct constituting the 10 commission of certain sexual offenses are alleged. 1. In any action 11 where the plaintiff seeks to revive an action pursuant to section two 12 hundred fourteen-f of this chapter after the effective date of this 13 subdivision which had been time barred, any affirmative defense of lach- 14 es, delay, or material impairment in the defense or investigation of the 15 claim must be supported by a certificate of merit submitted by a person 16 with knowledge of the facts setting forth the specific manner in which 17 the defense or investigation has been affected. Said certificate must be 18 filed at or before the time in which the answer is served, unless other- 19 wise provided by order of the court. 20 2. Upon motion by any party, the court shall determine by a preponder- 21 ance of the evidence, whether defendant has sustained his or her burden 22 of proof on any motion to dismiss the action or on any affirmative 23 defense in which it is alleged that prejudice has been caused to defend- 24 ant in the investigation or defense of the action directly resulting 25 from a delay in commencing the action. A defendant shall not be deemed 26 prejudiced solely on account of the passage of time. 27 3. Any such affirmative defense shall be dismissed, and any such 28 motion to dismiss the action denied, if the court finds that plaintiff 29 acted in good faith and with due diligence in pursuing the claim under 30 the circumstances, which shall include whether defendant took any 31 actions to impede or delay any investigation or prevent disclosure of 32 the facts alleged to the plaintiff or to the general public, as well as 33 whether plaintiff took any actions which deliberately prejudiced the 34 defense or investigation of the claim. Nothing in this subdivision 35 shall limit the court, in its discretion, from reserving any disputed 36 issues of fact for later disposition by the finder of fact. 37 4. Furthermore, in any such action, in addition to any other defense 38 and affirmative defense that may be available in accordance with law, 39 rule or the common law, to the extent that the acts alleged in such 40 action are of the type described in subdivision one of section 130.30 of 41 the penal law or subdivision one of section 130.45 of the penal law, the 42 affirmative defenses set forth, respectively, in the closing paragraph 43 of such section of the penal law shall apply. 44 § 5. Subdivision (a) of rule 3403 of the civil practice law and rules 45 is amended by adding a new paragraph 7 to read as follows: 46 7. any action which has been revived pursuant to section two hundred 47 fourteen-f of this chapter. 48 § 6. Subdivision 8 of section 50-e of the general municipal law, as 49 amended by chapter 24 of the laws of 1988, is amended to read as 50 follows: 51 8. Inapplicability of section. (a) This section shall not apply to 52 claims arising under the provisions of the workers' compensation law, 53 the volunteer firefighters' benefit law, or the volunteer ambulance 54 workers' benefit law or to claims against public corporations by their 55 own infant wards.A. 10600 4 1 (b) This section shall not apply to any claim made for physical, 2 psychological, or other injury or condition suffered as a result of 3 conduct which would constitute a sexual offense as defined in article 4 one hundred thirty of the penal law committed against a child less than 5 eighteen years of age, incest as defined in section 255.27, 255.26 or 6 255.25 of the penal law committed against a child less than eighteen 7 years of age, or the use of a child in a sexual performance as defined 8 in section 263.05 of the penal law committed against a child less than 9 eighteen years of age. 10 § 7. Section 50-i of the general municipal law is amended by adding a 11 new subdivision 5 to read as follows: 12 5. Notwithstanding any provision of law to the contrary, this section 13 shall not apply to any claim made against a city, county, town, village, 14 fire district or school district for physical, psychological, or other 15 injury or condition suffered as a result of conduct which would consti- 16 tute a sexual offense as defined in article one hundred thirty of the 17 penal law committed against a child less than eighteen years of age, 18 incest as defined in section 255.27, 255.26 or 255.25 of the penal law 19 committed against a child less than eighteen years of age, or the use of 20 a child in a sexual performance as defined in section 263.05 of the 21 penal law committed against a child less than eighteen years of age. 22 § 8. Section 10 of the court of claims act is amended by adding a new 23 subdivision 10 to read as follows: 24 10. Notwithstanding any provision of law to the contrary, this section 25 shall not apply to any claim to recover damages for physical, psycholog- 26 ical, or other injury or condition suffered as a result of conduct which 27 would constitute a sexual offense as defined in article one hundred 28 thirty of the penal law committed against a child less than eighteen 29 years of age, incest as defined in section 255.27, 255.26 or 255.25 of 30 the penal law committed against a child less than eighteen years of age, 31 or the use of a child in a sexual performance as defined in section 32 263.05 of the penal law committed against a child less than eighteen 33 years of age. 34 § 9. Subdivision 2 of section 3813 of the education law, as amended by 35 chapter 346 of the laws of 1978, is amended to read as follows: 36 2. Notwithstanding anything to the contrary hereinbefore contained in 37 this section, no action or special proceeding founded upon tort shall be 38 prosecuted or maintained against any of the parties named in this 39 section or against any teacher or member of the supervisory or adminis- 40 trative staff or employee where the alleged tort was committed by such 41 teacher or member or employee acting in the discharge of his duties 42 within the scope of his employment and/or under the direction of the 43 board of education, trustee or trustees, or governing body of the school 44 unless a notice of claim shall have been made and served in compliance 45 with section fifty-e of the general municipal law. Every such action 46 shall be commenced pursuant to the provisions of section fifty-i of the 47 general municipal law; provided, however, that this section shall not 48 apply to any claim to recover damages for physical, psychological, or 49 other injury or condition suffered as a result of conduct which would 50 constitute a sexual offense as defined in article one hundred thirty of 51 the penal law committed against a child less than eighteen years of age, 52 incest as defined in section 255.27, 255.26 or 255.25 of the penal law 53 committed against a child less than eighteen years of age, or the use of 54 a child in a sexual performance as defined in section 263.05 of the 55 penal law committed against a child less than eighteen years of age.A. 10600 5 1 § 10. Paragraph (a) of subdivision 1 of section 413 of the social 2 services law, as separately amended by chapters 126 and 205 of the laws 3 of 2014, is amended to read as follows: 4 (a) The following persons and officials are required to report or 5 cause a report to be made in accordance with this title when they have 6 reasonable cause to suspect that a child coming before them in their 7 professional or official capacity is an abused or maltreated child, or 8 when they have reasonable cause to suspect that a child is an abused or 9 maltreated child where the parent, guardian, custodian or other person 10 legally responsible for such child comes before them in their profes- 11 sional or official capacity and states from personal knowledge facts, 12 conditions or circumstances which, if correct, would render the child an 13 abused or maltreated child: any physician; registered physician assist- 14 ant; surgeon; medical examiner; coroner; dentist; dental hygienist; 15 osteopath; optometrist; chiropractor; podiatrist; resident; intern; 16 psychologist; registered nurse; social worker; emergency medical techni- 17 cian; licensed creative arts therapist; licensed marriage and family 18 therapist; licensed mental health counselor; licensed psychoanalyst; 19 licensed behavior analyst; certified behavior analyst assistant; hospi- 20 tal personnel engaged in the admission, examination, care or treatment 21 of persons; a Christian Science practitioner; school official, which 22 includes but is not limited to school teacher, school guidance counse- 23 lor, school psychologist, school social worker, school nurse, school 24 administrator or other school personnel required to hold a teaching or 25 administrative license or certificate; full or part-time compensated 26 school employee required to hold a temporary coaching license or profes- 27 sional coaching certificate; social services worker; director of a chil- 28 dren's overnight camp, summer day camp or traveling summer day camp, as 29 such camps are defined in section thirteen hundred ninety-two of the 30 public health law; day care center worker; school-age child care worker; 31 provider of family or group family day care; employee or volunteer in a 32 residential care facility for children that is licensed, certified or 33 operated by the office of children and family services; or any other 34 child care or foster care worker; mental health professional; substance 35 abuse counselor; alcoholism counselor; all persons credentialed by the 36 office of alcoholism and substance abuse services; member of the clergy 37 of any religion, including but not limited to a clergyman and minister 38 as such terms are defined in section two of the religious corporations 39 law, and shall also include any person responsible for the hiring, 40 retention, or supervising of such member of the clergy of a religious 41 institution or responsible for the administration of a religious insti- 42 tution; peace officer; police officer; district attorney or assistant 43 district attorney; investigator employed in the office of a district 44 attorney; or other law enforcement official. 45 § 11. Subdivision 1 of section 413 of the social services law is 46 amended by adding a new paragraph (e) to read as follows: 47 (e) Unless the person confessing or confiding waives the privilege 48 available pursuant to section forty-five hundred five of the civil prac- 49 tice law and rules, a member of the clergy of any religion, including 50 but not limited to a clergyman and minister as defined in section two of 51 the religious corporations law, shall not be required to make a report 52 as required by paragraph (a) of this subdivision if the confession or 53 confidence was made to him or her in his or her professional character 54 as spiritual advisor. 55 § 12. Section 219-c of the judiciary law, as added by chapter 506 of 56 the laws of 2011, is amended to read as follows:A. 10600 6 1 § 219-c. Crimes involving sexual assault and the sexual abuse of 2 minors; judicial training. The office of court administration shall 3 provide training for judges and justices with respect to crimes involv- 4 ing sexual assault, and the sexual abuse of minors. 5 § 13. The judiciary law is amended by adding a new section 219-d to 6 read as follows: 7 § 219-d. Rules reviving certain actions; sexual offenses against chil- 8 dren. 1. The chief administrator of the courts shall promulgate rules 9 establishing a supreme court part in each of four judicial departments 10 to adjudicate revived actions brought pursuant to section two hundred 11 fourteen-f of the civil practice law and rules, which shall be the sole 12 venue in the judicial department in which said cases shall be adjudi- 13 cated and tried. However, the failure to institute any such action in 14 the court designated by the chief administrator of the courts shall not 15 constitute a ground to dismiss the action. The chief administrator of 16 the courts shall also promulgate rules requiring the transfer of any 17 such cases to such appropriate part within the judicial department where 18 the action was commenced, on a sua sponte basis, upon appropriate notice 19 to the parties. Said rules shall also provide that the plaintiff desig- 20 nate that an action has been brought pursuant to section two hundred 21 fourteen-f of the civil practice law and rules in their request for 22 judicial intervention. 23 2. The rules promulgated by the chief administrator of the courts 24 shall also provide that if any defendant has filed a request for judi- 25 cial intervention prior to the plaintiff so filing, plaintiff shall have 26 the opportunity, at any point prior to the filing of a note of issue, to 27 file a supplemental request for judicial intervention designating that 28 the matter was filed pursuant to section two hundred fourteen-f of the 29 civil practice law and rules. Nothing contained in this section shall 30 abrogate the ability of the court to so assign such a matter sua sponte, 31 or abrogate any party's right to a jury pursuant to article forty-one of 32 the civil practice law and rules. 33 § 14. The provisions of this act shall be severable, and if any 34 clause, sentence, paragraph, subdivision or part of this act shall be 35 adjudged by any court of competent jurisdiction to be invalid, such 36 judgment shall not affect, impair, or invalidate the remainder thereof, 37 but shall be confined in its operation to the clause, sentence, para- 38 graph, subdivision or part thereof directly involved in the controversy 39 in which such judgment shall have been rendered. 40 § 15. This act shall take effect immediately; except that section 41 twelve of this act shall take effect six months after this act shall 42 have become a law; provided, however, that training for cases brought 43 pursuant to section 214-f of the civil practice law and rules, as added 44 by section three of this act, shall commence three months after this act 45 shall have become a law; and section thirteen of this act shall take 46 effect three months after this act shall have become a law.
