Opinion
Index No. 811170/2021
03-28-2022
LG 67 DOE, Plaintiff, v. RESURRECTION LUTHERAN CHURCH, Upstate New York Synod of the Evangelical Lutheran Church in America, Evangelical Lutheran Church in America, Defendants.
Amy Keller, Esq., Lipsitz Green Scime and Cambria, LLP, Counsel for Plaintiff Michael Applebaum, Esq., Goldberg Segalla, LLP, Counsel for Evangelical Lutheran Church in America Andrea Shillaci, Esq., Hurwitz & Fine, PC, Counsel for Upstate New York Synod of the Evangelical Lutheran Church in America Thomas Cunningham, Esq., Rupp Baase Pfalzgraf Cunningham, LLC, Counsel for Resurrection Lutheran Church
Amy Keller, Esq., Lipsitz Green Scime and Cambria, LLP, Counsel for Plaintiff
Michael Applebaum, Esq., Goldberg Segalla, LLP, Counsel for Evangelical Lutheran Church in America
Andrea Shillaci, Esq., Hurwitz & Fine, PC, Counsel for Upstate New York Synod of the Evangelical Lutheran Church in America
Thomas Cunningham, Esq., Rupp Baase Pfalzgraf Cunningham, LLC, Counsel for Resurrection Lutheran Church
Deborah A. Chimes, J. Defendants, Resurrection Lutheran Church, Upstate New York Synod of the Evangelical Lutheran Church in America and Evangelical Lutheran Church in America, (hereafter, defendants), moved to dismiss plaintiff's complaint pursuant to CPLR 3211(a)(5) and CPLR 208(b), (NYSCEF motions 002, 004 and 005). Plaintiff opposed the motions.
This claim was filed pursuant to the Child Victims Act ( CPLR 214-g ). Plaintiff claims sexual abuse from 1960 to 1964 by two persons associated with his Boy Scout troop. The action was commenced on August 12, 2021. According to the complaint, plaintiff was born in 1951, making him at least sixty-nine years old when the action was commenced.
Defendants argue that the age limit referenced in CPLR 208 (b) applies to the revival window set forth in CPLR 214-g and that the complaint is therefore time-barred. Plaintiff argues the age requirement of CPLR 208(b) is not applicable to CPLR 214-g and relies in part on the provision of CLR 214-g that states "notwithstanding any provision of law ... to the contrary."
"In matters of statutory interpretation, ‘legislative intent is the great and controlling principle ... Because ‘the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’ " ( Matter of Peyton v. N.Y.C. Bd. of Standards & Appeals , 36 N.Y.3d 271, 279, 140 N.Y.S.3d 447, 164 N.E.3d 253 [2020], citing Matter of Rizzo v. New York State Div. of Hous. & Community Renewal , 6 N.Y.3d 104, 114, 810 N.Y.S.2d 112, 843 N.E.2d 739 [2005] and Kuzmich v. 50 Murray St. Acquisition LLC , 34 N.Y.3d 84, 91, 108 N.Y.S.3d 431, 132 N.E.3d 624 [2019] ). A statute "must be construed as a whole," and "its various sections must be considered together and with reference to each other" ( Town of Aurora v. Village of E. Aurora , 32 N.Y.3d 366, 372, 91 N.Y.S.3d 773, 116 N.E.3d 64 [2018] ). Further, the court may "inquire into the ... purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history" ( id. ).
CPLR 208 entitled, "Infancy, insanity", is a tolling provision based on the disabilities of infancy and insanity. CPLR 208(b) is part of the Child Victims Act and states, in pertinent part:
"Notwithstanding any provision of law which imposes a period of limitation to the contrary ... with respect to all civil claims or causes of action brought by any person for physical, psychological or other injury or condition suffered by such person as a result of conduct which would constitute a sexual offense against such person who was less than eighteen years of age ... such action may be commenced, against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of said conduct, on or before the plaintiff or infant plaintiff reaches the age of fifty-five years."
CPLR 214-g, entitled "Certain child abuse sex cases," also part of the Child Victims Act, states:
"Notwithstanding any provision of law which imposes a period of limitation to the contrary 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 which conduct was committed against a child less than eighteen years of age, which is barred as of the effective date of this section because the applicable period of limitation has expired ... is hereby revived.
(emphasis added). It is noted that CPLR 214-g does not contain an age limitation or refer to CPLR 208(b). In addition, the Legislative Memorandum for the Bill, which was later passed into law as the Child Victims Act, justifies passage of the Act as follows:
The legislature would open the doors of justice to the thousands of survivors of child sexual abuse in New York State by prospectively extending the statute of limitations to ... age 55 for bringing civil actions for physical, psychological or other injury suffered as a result of child sexual abuse against
any party whose intentional or negligent acts or omissions are alleged to have resulted in the abuse.
This legislation would also establish a one-year window in which adult survivors of child sexual abuse would be permitted to file civil actions, even if the statute of limitations had already expired.
Passage of the Child Victims Act will finally allow justice for past and future survivors of child sexual abuse. (Legislative Mem, L 2019, ch 11, McKinney's Session Laws of NY Advance Sheets at A-39, emphasis added).
The Child Victims Act, construed as whole and taking into consideration the plain meaning of the statutory text, as well as the intent of the Legislature, leads to the conclusion that CPLR 208(b) extends the statute of limitations to bring a civil action based on sexual abuse until the child victim reaches the age of fifty-five as of the effective date of the statute, February 14, 2019. CPLR 214-g, also effective on the same date, created a one-year revival window for time-barred claims, which was later extended by then Governor Cuomo for an additional year or until August 14, 2021, (2019-2020 Legislative Session NY Senate Bill S7082), regardless of the age of the victim.
As aptly stated by Justice Silver, "[d]efendants’ argument mistakenly conflates the function and purpose of the present limited revival window and the function and purpose of the age cap for new claims not previously precluded" (Finnigan v. Lionetti , Sup Ct, Bronx County, October 6, 2021, Silver, J., index No. 70001/2019E).
Based on the foregoing, defendants’ motions are denied. Counsel for plaintiff is to prepare an order on all motions and submit the order to the Court upon approval of defendants. The order shall be submitted within 30 days and shall reference and attach the Court's Decision to the order.