Opinion
Index No. 035570/2023
04-03-2024
K.W., Plaintiff, v. County of Rockland, ROCKLAND COUNTY SHERIFF'S OFFICE, Defendants.
Plaintiff represented by: Rachel Laden, Esq. Slater Slater Schulman, LLP Defendants represented by: Robert B. Weissman, Esq. Saretsky Katz & Dranoff, LLP
Plaintiff represented by:
Rachel Laden, Esq.
Slater Slater Schulman, LLP
Defendants represented by:
Robert B. Weissman, Esq.
Saretsky Katz & Dranoff, LLP
Keith J. Cornell, J.
Before the Court is the CPLR § 3211(a)(7) motion to dismiss filed by Defendants. Plaintiff opposes the motion. The documents filed electronically as NYSCEF Docs. 6 - 23 were read and considered:
Defendants argue that the complaint naming "Rockland County Sheriff's Office" as a defendant should be dismissed as to that Defendant because the Sheriff's Office is not an entity separate from the County of Rockland and, therefore, cannot be sued. Defendants' papers refer to the two named defendants as "defendant" in the singular. This decision refers to the two named defendants as "Defendants."
NYSCEF Doc. No. 24 is disregarded as an unpermitted sur-reply submission.
Brief Summary
The Plaintiff commenced this action pursuant to CPLR § 214-j, known as the Adult Survivors Act ("ASA"), alleging certain conduct which, if proven, would constitute violations of the ASA. The specific allegations are not germane to the instant motion. In 2022, New York enacted the ASA to provide a window of opportunity for persons eighteen (18) years or older to pursue claims alleging certain sexual offenses which were otherwise time-barred. In effect, the ASA provided a revival of potential claims which could be initiated within a fairly narrow window from November 24, 2022, through November 24, 2023. Plaintiff filed her lawsuit within that window. Defendants' motion to dismiss does not question that timing. Instead, Defendants argue that the complaint must be dismissed because Plaintiff failed to file a Notice of Claim pursuant to the General Municipal Law ("GML"). Defendants' position is that the GML Notice of Claim requirement is a condition precedent to the filing of an ASA action.
The complaint's allegations are extensive and relate to alleged sexual abuse of the Plaintiff while in custody at the Rockland County Jail. This motion is addressed only to the procedural issue presented.
Plaintiff opposes the motion and counters by arguing that there is no Notice of Claim prerequisite associated with commencing an ASA suit. Plaintiff concedes that no Notice of Claim was filed.
Discussion
This motion raises a narrow question as to whether the filing of a General Municipal Law 50-e Notice of Claim is a condition precedent to the filing of an ASA lawsuit. Defendants correctly point out that the ASA is virtually identical to CPLR § 214-g (the "Child Victim's Act" or "CVA") which created a revival period for claims of those persons under the age of eighteen (18). Defendants note that with the enactment of the CVA, the Legislature also amended General Municipal Law 50-e to expressly exclude CVA claims from the Notice of Claim requirement by adding GML § 50-e (8)(b). Because the Legislature, in enacting the ASA, did not do the same - that is, create a GML exception to the Notice of Claim procedure - Defendants argue that the Legislature evinced a clear intention not to exempt ASA claimants from the Notice of Claim requirement and that Plaintiff's failure to file a Notice of Claim is fatal to her action.
Defendants argue that, as with the CVA legislation, the Legislature could have created the same GML exception to apply to the ASA had it intended to eliminate a Notice of Claim requirement prior to filing an ASA suit.
Plaintiff argues that the Defendants are flat out wrong and that their interpretation of the statute is tortured and nonsensical. While the Defendants put much stock in the failure of the ASA to include an explicit exception to the Notice of Claim requirement in GML § 50-e, this is akin to statutory interpretation legerdemain. Red herring, anyone?
There is no fish species called "red herring." The term refers to a heavily brined kipper, typically made from herring. It is a pungent and foul-smelling concoction which may have been used to train scent hounds. Teaching them first to follow it, and then later dragging it across their path, would theoretically help them learn to ignore forceful but irrelevant scents so that they could stay focused on the fainter target scent.
Perhaps, the Legislature could have added the ASA to the GML § 50-e(8)(b) exclusions, but that was not necessary. The ASA is clear and unambiguous on its face. The Court must give voice to the plain language of the statute. Defendants would have the Court engraft a requirement (i.e., the GML § 50-e Notice of Claim) onto the legislation which includes no such requirement. Here, the Defendants gloss over the "notwithstanding" language of the ASA. It is worth reciting it in full here:
Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was eighteen years of age or older, or incest as defined in section 255.26 or 255.27 of the penal law committed against such person who was eighteen years of age or older, which is barred as of the effective date of this section because the applicable period of limitation has expired, and/or the plaintiff previously failed to file a notice of claim or a notice of intention to file a claim, is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section. In any such claim or action, dismissal of a previous action, ordered before the effective date of this section, on grounds that such previous action was time barred, and/or for failure of a party to file a notice of claim or a notice of intention to file a claim, shall not be grounds for dismissal of a revival action pursuant to this section. (CPLR § 214-j).
The "notwithstanding" language is prominent and remarkable. Black's Law Dictionary provides guidance by explaining the "subordinating/superordinating-language canon" as follows: "The doctrine that in a legal instrument, subordinating language (signaled by subject to) or superordinating language (signaled by notwithstanding or despite) merely shows which provision prevails in the event of a clash - but does not necessarily denote a clash of provisions." Black's Law Dictionary (11th ed. 2019). Black's defines "[n]otwithstanding", in its prepositional form, as a translation from the Latin "non obstante," meaning "[d]espite; in spite of" and "[not] opposing." (Black's, Id.).
What this says is that "notwithstanding"-meaning "despite" or "regardless of"-any law imposing a limitations period or any law imposing a Notice of Claim filing requirement on a claim which is otherwise time-barred "and/or the plaintiff previously failed to file a Notice of Claim IS HEREBY REVIVED, AND ACTION THEREON MAY BE COMMENCED." (emphasis supplied). (CPLR § 214-j).
Not only does the statute clearly authorize actions within the revival period, but it explicitly authorizes those actions despite any other law which would otherwise impose a Notice of Claim requirement as a condition precedent. The statute would be redundant if it further provided, for example: "any action in accordance herewith shall not require a Notice of Claim which is required by any other law," or similar language.
The ASA's "notwithstanding" language clearly provides that any otherwise applicable Notice of Claim requirement does not apply to an ASA claim. It is hard to imagine any interpretation of the ASA in any other way. The plain meaning of the statute is clear on its face. Looking to the GML exception established for the CVA as a talisman with the magical power to make the "notwithstanding" language disappear is unavailing.
The Defendants argue that the lack of an express GML exception for the ASA ineluctably leads to the conclusion that a Notice of Claim is a prerequisite or condition precedent to commencing an ASA action. Not only does that position ignore the statute's plain language but it also assumes that without GML § 50-e (8)(b), all CVA lawsuits would require GML notices of claim. Such a position, too, would fly in the face of a plain reading of the CVA with the near identical "notwithstanding" language, which so obviously permits a suit without the necessity to file a Notice of Claim. In the construction of a statute, meaning and effect should be given to all of its language and words are not to be rejected as superfluous. (Friedman v. Rice, 30 N.Y.3d 461 (2017)). How, then, do Defendants explain the "notwithstanding" preposition so prominent to the ASA?
To quote from New York Jurisprudence:
The court must interpret a statute as a symmetrical and coherent regulatory scheme, and must fit, if possible, all parts into a harmonious whole. As well, the court must construe statutes harmoniously and reconcile laws with other statutory provisions whenever possible, in order to give full effect to all the provisions of the subject legislation. In this regard, courts are obligated to avoid conflicting interpretations between statutes. Thus, when two statutes relating to the same subject appear to conflict, courts should interpret them, if possible, in a manner that will give effect to both, taking into consideration the underlying legislative intent.
A statutory construction that results in the nullification of one part of a statute by another is impermissible and violates the rule that all parts of a statute are to be harmonized with each other as well as with the general intent of the statute. It is not the function of the court to declare one statute the victor over another if the statutes may be read together without misdirecting the one or breaking the spirit of the other.
Where a court must refer to two uniform statutes, they should be read together and reconciled to accomplish the purposes of each one. (Footnote Text Omitted) (NYJURR STATUTES 184).
This Court has taken the plain language of the ASA, the logical meaning of its words and the clear legislative intent to provide a meaningful opportunity to pursue certain enumerated claims into consideration. The ASA is not in conflict with the General Municipal Law Notice of Claim requirement. While the legislative approach to the ASA is not consistent with the path taken for the CVA, it is not in conflict with the GML. The Court need not explain the inconsistency between the similar statutes. A plain reading is sufficient to find the meaning and intent of the ASA, without doing interpretive harm to either the ASA or GML.
While the CVA, indeed, did include that additional GML amendment, query whether it was necessary? Similarly, while there is proposed clarifying legislation to add a GML exception applicable to ASA claims, query whether that is necessary?
The following paragraph from the "justification" portion of the proposed legislative amendment reads:
JUSTIFICATION:
The Adult Survivors Act (ASA) provided that civil claims and causes of action arising from the commission of a sexual offense against an adult were revived "notwithstanding... provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding". The ASA did not, however, directly amend the Court of Claims Act, General Municipal Law, or the Education Law provisions requiring notices of claim or notices of intention to file a claim, as the Child Victims Act before it did. While the ASA is clear that a notice of claim or notice of intention to file a claim is not required, this legislation will further clarify that such notices are not necessary in a claim revived by the ASA. (NYSB S5916 2023-2024 Legislative Session).
While Defendants point to this proposed legislation as support for the proposition that the ASA, as written, does require that a GML Notice of Claim be filed, it really does the opposite. The Court need not determine why the ASA did not include a Notice of Claim exception in the GML. It simply does not matter.
There can be no question that the ASA was intended to provide a window of opportunity for filing actions, otherwise time-barred. Given the brief window that was opened, the argument that the Legislature must have intended for the GML Notice of Claims requirements to apply defies logic and stretches credulity to the breaking point. The GML Notice of Claim requirement does not apply to an ASA action.
With regard to Defendants' argument that the Rockland County Sheriff's Office does not possess an entity status separate and apart from the County of Rockland, while this may be correct, it is premature to dismiss that named Defendant. Therefore, without prejudice, that portion of the motion must be denied.
Based upon the foregoing, the Defendants' motion to dismiss must be denied. Therefore, it is
ORDERED, that Defendants' motion to dismiss is DENIED in its entirety.
The foregoing shall constitute this Court's Decision and Order.