New York introduces June 2016 SOL Reform Bill Assembly Bill 10600 A. 10600
A10600 Text:
STATE OF NEW YORK
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10600
IN ASSEMBLY
June 7, 2016
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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.
LBD15787-02-6
A. 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, rule
A. 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.
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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.