“Child Victims Act” Drastically Increases the Statute of Limitations for Cases of Child Sexual Abuse in NYS
On January 28, 2019, the New York State Legislature passed a bill that increases the statute of limitations for cases of child sexual abuse. It applies to claims against abusers as well as private and public institutions such as schools and school districts. Requirement to file a Notice of Claim against public institutions is waived in this legislation placing prospective public and private defendants on equal footing.
The Child Victims Act will allow child victims to seek prosecution against their alleged abuser until the age of 55 in civil cases, which is an increase from the previous limit of age 23.
The bill also includes a one-year “look back window” during which victims of any age or time limit can come forward to prosecute. The one-year window gives all abuse survivors one year to file a claim once the law is effective. It is designed to allow adult victims who were previously prohibited by the statute of limitations from commencing a lawsuit for their injuries
The “look back window” has been controversial in many states that already have a similar bill in place because it can open the floodgates for lawsuits, large payouts and bankruptcies. It is likely New York will set up compensation programs, as many other states have done.
With those compensation programs, if a victim opts to accept a settlement offered, he or she typically agrees to “release” the claims against that entity, for example, the church. In other words, the victim signs away his or her right to sue, in exchange for a cash settlement, and recognition of the abuse by the church.
For criminal cases, victims will now have until the survivor’s 28th birthday if the crime is a felony and 25th if it is a misdemeanor.
Cuomo is expected to sign the bill into law in the near future.
A Driver’s Deposition Testimony Conclusively Establishes Her Own Negligence
In Jennifer Sims v. Ayla C. Ciccone-Burton and Christa M. Ciccone, 2018 NY Slip Op 08821 (4th Dept. December 21, 2018), plaintiff commenced a negligence action to recover damages for injuries allegedly sustained when her vehicle was rear-ended by a vehicle owned by defendant Christa M. Ciccone and operated by defendant Ayla C. Ciccone-Burton.
The defendants moved for summary judgment dismissing the complaint on the ground plaintiff did not sustain a serious injury within the significant limitation of use, permanent consequential limitation of use, and 90/180-day. Plaintiff then cross-moved for partial summary judgment on the issues of negligence and serious injury.
The Supreme Court denied plaintiff’s cross motion and granted defendants’ motion except with respect to the 90/180-day claim. Plaintiff now appealed, and the Appellate Court modified the order by denying those parts of the motion with respect to the permanent consequential limitation of use and significant limitation of use categories of serious injury, and granting the cross motion in part with respect to the issue of negligence.
The Court rejected plaintiff’s contention that the trial court erred in denying her cross motion with respect to the 90/180-day claim, but agreed that defendants failed to meet the initial burden on their motion dismissing the significant limitation of use and permanent consequential limitation of use claims.
Lastly, with respect to plaintiff’s cross motion on the issue of negligence, and the Court found it was denied in error. The Court noted, “It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle … In order to rebut the presumption [of negligence], the driver of the rear vehicle must submit a nonnegligent explanation for the collision . . . One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle”. Macri v. Kotrys, 164 AD3d 1642, 1643, 84 N.Y.S.3d 293 (4th Dept. 2018).
The Court noted that in the instant matter, the defendant driver did not testify at her deposition that plaintiff suddenly stopped her vehicle and precipitated the crash. Rather, she “remember[ed] being stopped and [that she] thought the car in front of [her] began to move, so [she] went on [her] acceleration [sic]. And next thing [she] knew there was a crack on [her windshield].”
The Court stated this was far from a non-negligent explanation for the crash, and the driver’s deposition testimony conclusively established her own negligence.
A Claim Sounding in Ordinary Negligence Does Not Lie Against the Person Responsible for a Dog that Causes Injury
In Meka v. Pufpaff, 2018 NY Slip Op 08823 (4th Dept. December 21, 2018), plaintiffs commenced an action to recover damages for injuries allegedly sustained as a result of the vicious propensities of defendants’ dogs, Eli and Nyx.
Plaintiff alleged she was walking her dog, around the neighborhood when defendants’ dogs approached them. Eli approached first and began sniffing plaintiff’s dog. According to plaintiff’s deposition testimony, Nyx came toward her at a “full run” and began “biting” her dog’s neck. As plaintiff screamed for help, she lost her balance, fell over one of the dogs, and dropped to the curb, fracturing her arm.
Defendants appealed and plaintiffs cross-appealed from an order that denied defendants’ motion for summary judgment dismissing the complaint and plaintiffs’ cross motion for summary judgment on the complaint.
Defendants contended on their appeal that Supreme Court erred in denying their motion with respect to the strict liability cause of action because their dogs had not demonstrated vicious propensities prior to the subject incident. Appellate Court rejected that contention stating instead that, “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit”. The Court further stated, “a known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act'”.
Although the defendants testified they never saw their dogs behave aggressively toward another dog, they submitted the deposition testimony of a neighbor, who testified that one day, when she was walking her dog past defendants’ house, Eli and Nyx growled and “came charging” at them, which raised an issue of fact by their own submissions.
The Court also rejected plaintiffs’ contention on their cross appeal that the court erred in denying their cross motion with respect to the strict liability cause of action. The Court ruled that contrary to plaintiffs’ contention, the court properly disregarded an affidavit submitted with surreply papers, finding it is generally improper for a party seeking relief by cross motion to submit evidence for the first time in surreply papers. Lastly, the plaintiffs offered no justification for failing to submit the affidavit with their cross motion papers.
The Court also agreed with defendants on their appeal that the court erred in denying the motion with respect to the allegations of negligence, stating, “a claim sounding in ordinary negligence does not lie against the person responsible for a dog that causes injury.”
“Construction Manager” Is Not Excluded from the Class of Parties Potentially Liable to a Defendant’s Employee
In LeChase Constr. Servs., LLC v. Jag I, LLC, 2018 NY Slip Op 08767 (4th Dept. December 21, 2018), the plaintiff, a construction manager on a project to construct a building, entered into a contract with defendant, who agreed to construct the foundation for the building.
The contract included a clause providing for the defense and indemnification of plaintiff by defendant for all costs arising out of, or caused by, or claimed to have been caused in connection with the work performed by defendant under the contract.
During construction of the foundation, an employee of defendant was injured, and defendant’s employee commenced an action against plaintiff and others alleging a violation of Labor Law § 240.
Plaintiff notified the defendant of the underlying action and tendered its defense of that action to defendant, which defendant rejected. The injured plaintiff in the underlying claim settled claims against LeChase for $1.5 million. Plaintiff (LeChase) then commenced an action against defendant for contractual indemnification.
Plaintiff’s action for contractual indemnification against defendant proceeded to trial on the issue of liability, and the jury determined: plaintiff could have been found liable to defendant’s employee under Labor Law § 240; plaintiff’s settlement of the underlying action was reasonable and in good faith; and plaintiff was not negligent in the happening of the injury of defendant’s employee. The defendant appealed the judgment entered on the basis of the jury’s verdict, and the Appellate Court affirmed the verdict.
The defendant’s main contention was that the Supreme Court applied the “wrong law as to the elements of proof for a contractual indemnification claim arising from a Labor Law § 240 action,” because the court did not instruct the jury that the plaintiff had the burden of establishing the actual amount of damages sustained by defendant’s employee. The Court ultimately rejected that contention, finding that it is well settled, “[w]here a party voluntarily settles a claim, [the party] must demonstrate that [it] was legally liable to the party whom [it] paid and that the amount of [the] settlement was reasonable in order to recover against an indemnitor”.
In the instant matter, inasmuch as plaintiff notified defendant of the underlying action and tendered the defense thereof, the Court determined the plaintiff was relieved of “the necessity of again litigating and establishing all of the actionable facts” in the underlying action.
Additionally, the Court reiterated that the fall of defendant’s employee from a foot bridge into an excavation from ground level was exactly the type of elevation-related risk for which Labor Law § 240 (1) provides protection. The Court further rejected defendant’s contention that plaintiff’s status as the project’s “construction manager” excluded it from the class of parties potentially liable to defendant’s employee under Labor Law § 240 (1).
Lastly, the Court rejected defendant’s contention that the court erred in permitting plaintiff’s expert and plaintiff’s general counsel to testify with respect to the reasonableness of and reasons for plaintiff’s settlement with defendant’s employee, finding that the verdict is not against the weight of the evidence.