August 1, 2024
On February 14, 2019, Governor Andrew Cuomo signed the Child Victims Act (“CVA”) into law. Among other things, the CVA permitted child victims of sexual abuse until age 55 to file suit against their perpetrators for any claims that arose after the law’s enactment. For claims that had expired, the CVA also created a “lookback window” which permitted lawsuits to be filed which may have previously been dismissed or would be subject to dismissal due to an expired statute of limitation. Another key element of the CVA was the removal of the Notice of Claim requirement for asserting claims against public entities which had been necessary pursuant to the New York State General Municipal Law.
In that regard, the Adult Survivors Act (“ASA”) was signed into law on May 24, 2022 by New York Governor Kathy Hochul. Similar to the CVA, the ASA expanded the statute of limitations to twenty years and also provided a “lookback window” allowing adults to assert claims that the statute of limitations would have otherwise barred. In most respects, the ASA and the CVA were written virtually identically to one another – the underlying intent of both statutes were certainly impliedly identical.
However, in enacting the ASA, the legislature did not expressly amend GML 50-e to exclude ASA claims from the notice of claim requirement – which it had done for CVA claims. Consequently, there was an apparent loophole in the ASA and a question as to whether Notices of Claim were still required when bringing claims against public entities. As a result, numerous cases filed pursuant to the ASA were the subject of motions to dismiss based upon the failure to timely file a Notice of Claim.
In particular, on April 3, 2024, in the case of K.W. v. County of Rockland, the Supreme Court in Rockland County addressed whether filing a GML 50-e notice of claim is a condition precedent to filing an ASA lawsuit. In K.W., the plaintiff timely filed an action, within the lookback window, against defendant Rockland County. The plaintiff did not file a Notice of Claim and the defendants moved to dismiss the suit, arguing that it was a condition precedent to the filing an ASA claim. The Court denied the defendants’ motion to dismiss, wholly rejecting their argument that a Notice of Claim was a condition precedent under the ASA. The Court reasoned that the ASA is clear and unambiguous on its face. Conversely, the Supreme Court in Wayne County addressed a similar argument and suggested a potentially opposite outcome.
In an effort to close this legislative loophole and judicial quagmire, on June 28, 2024, Governor Hochul signed into law New York State Assembly Bill A6138, which resolved the question concerning the requirement of a notice of claim in ASA cases. Assemblymember Linda B. Rosenthal stated, “Blocking cases from moving ahead over the lack of a notice of claim not only flies in the face of the law, it re-victimizes those survivors who spent years grappling with the abuse they suffered and the difficult decision to come forward.”
“Conflicting court rulings must not imperil the ability of survivors to hold their abusers accountable,” said Assemblymember Linda B. Rosenthal. “With this clarification now signed into law, Adult Survivors Act cases will be able to proceed without delay and survivors around the state will have the shot at justice that they deserve.”
This legislation, which takes effect immediately and applies to all proceedings currently pending, amends provisions of the original law to make clear that a notice of claim is not required to bring a civil case under the ASA.
For additional information regarding the above, please contact:
Gary Intoccia – gintoccia@mkcilaw.us.com
Marc Pakrul – mpakrul@mkcilaw.us.com