The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2872--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 20, 2015
                               ___________

Introduced  by M. of A. MARKEY, SEPULVEDA, MILLER, ENGLEBRIGHT, GUNTHER,
  BRINDISI, ROBERTS, OTIS,  JAFFEE,  ROBINSON,  STIRPE,  AUBRY,  KEARNS,
  SIMOTAS,  CLARK,  GALEF,  HOOPER,  MOSLEY, RUSSELL, ROSENTHAL, LIFTON,
  BARRETT, NOJAY, PAULIN, PERRY, SKOUFIS, BROOK-KRASNY, COOK,  DINOWITZ,
  SALADINO,  GRAF,  LALOR,  PICHARDO, BRABENEC, ARROYO, PALUMBO, WALKER,
  KAMINSKY, LINARES, CURRAN, MURRAY, WEPRIN, JOHNS, BICHOTTE  --  Multi-
  Sponsored  by -- M. of A. BLANKENBUSH, BRENNAN, CERETTO, CROUCH, FAHY,
  GLICK, HAWLEY, HEVESI, KATZ, LOPEZ,  MAGEE,  ORTIZ,  PRETLOW,  RIVERA,
  SIMON,  TENNEY,  WOZNIAK -- read once and referred to the Committee on
  Codes -- committee discharged,  bill  amended,  ordered  reprinted  as
  amended and recommitted to said committee

AN  ACT  to  amend  the civil practice law and rules, in relation to the
  timeliness  for  commencing  certain  civil  actions  related  to  sex
  offenses

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The opening paragraph of section 208 of the civil  practice
law and rules is designated subdivision (a) and a new subdivision (b) is
added to read as follows:
  (B) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION,
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 WHO WAS EIGHTEEN YEARS OF AGE OR  LESS  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  LESS  THAN  EIGHTEEN  YEARS  OF  AGE,  INCEST AS DEFINED IN SECTION
255.25, 255.26 OR 255.27 OF THE PENAL LAW COMMITTED AGAINST SUCH  PERSON
WHO  WAS LESS THAN EIGHTEEN YEARS OF AGE, OR THE USE OF SUCH PERSON IN A
SEXUAL PERFORMANCE AS DEFINED IN SECTION 263.05 OF THE PENAL LAW,  OR  A
PREDECESSOR STATUTE THAT PROHIBITED SUCH CONDUCT AT THE TIME OF THE ACT,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01379-07-5

A. 2872--A                          2

WHICH  CONDUCT WAS COMMITTED AGAINST SUCH PERSON WHO WAS LESS THAN EIGH-
TEEN YEARS OF AGE, SUCH ACTION MAY BE COMMENCED AT ANY TIME.
  S  2.  The  civil  practice  law  and rules is amended by adding a new
section 214-f to  read as follows:
  S 214-F. CERTAIN  CHILD  SEXUAL  ABUSE  CASES.    NOTWITHSTANDING  ANY
PROVISION  OF  LAW WHICH IMPOSES A PERIOD OF LIMITATION TO THE CONTRARY,
EVERY CIVIL CLAIM OR CAUSE OF ACTION BROUGHT 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 A CHILD LESS THAN
EIGHTEEN YEARS OF AGE, INCEST AS DEFINED IN SECTION  255.25,  255.26  OR
255.27  OF  THE  PENAL  LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN
YEARS OF AGE, OR THE USE OF A CHILD IN A SEXUAL PERFORMANCE  AS  DEFINED
IN  SECTION  263.05  OF  THE  PENAL  LAW,  OR A PREDECESSOR STATUTE THAT
PROHIBITED SUCH CONDUCT AT THE  TIME  OF  THE  ACT,  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, AND ACTION THEREON
MAY BE COMMENCED ON OR BEFORE ONE YEAR AFTER THE EFFECTIVE DATE OF  THIS
SECTION,  SUBJECT TO PARAGRAPH TWO OF SUBDIVISION (I) OF RULE THIRTY-TWO
HUNDRED ELEVEN OF THIS CHAPTER.
  S 3. Rule 3211 of the civil practice  law  and  rules  is  amended  by
adding a new subdivision (i) to read as follows:
  (I)  1. STANDARDS FOR MOTIONS TO DISMISS AND MOTIONS TO DISMISS AFFIR-
MATIVE DEFENSES IN CERTAIN ACTIONS IN WHICH THE  COMMISSION  OF  CERTAIN
SEXUAL OFFENSES ARE ALLEGED. IN ANY ACTION COMMENCED AFTER THE EFFECTIVE
DATE  OF  THIS SUBDIVISION IN WHICH THE PLAINTIFF ALLEGES THAT HE OR SHE
HAS BEEN THE VICTIM OF A SEXUAL OFFENSE AS SET FORTH IN SUBDIVISION  (B)
OF  SECTION  TWO HUNDRED EIGHT OF THIS CHAPTER COMMITTED WHEN THE PLAIN-
TIFF WAS A CHILD UNDER THE AGE OF EIGHTEEN YEARS OF AGE:
  (I) WHERE THE PLAINTIFF IS TWENTY-THREE YEARS OF AGE OR OLDER WHEN THE
ACTION WAS COMMENCED, ANY AFFIRMATIVE DEFENSE OF LACHES, DELAY, OR MATE-
RIAL IMPAIRMENT IN THE DEFENSE OR INVESTIGATION OF THE CLAIM  MUST  ALSO
BE  SUPPORTED BY A CERTIFICATE OF MERIT SUBMITTED BY A PERSON WITH KNOW-
LEDGE OF THE FACTS SETTING  FORTH  THE  SPECIFIC  MANNER  IN  WHICH  THE
DEFENSE  OR  INVESTIGATION  HAS  BEEN AFFECTED. SAID CERTIFICATE MUST BE
FILED AT OR BEFORE THE TIME IN WHICH THE ANSWER IS SERVED UNLESS  OTHER-
WISE PROVIDED BY ORDER OF THE COURT; OR
  (II) WHERE THE PLAINTIFF SEEKS TO REVIVE AN ACTION PURSUANT TO SECTION
TWO  HUNDRED FOURTEEN-F OF THIS CHAPTER AFTER THE EFFECTIVE DATE OF THIS
SUBDIVISION WHICH HAD BEEN TIME BARRED, ANY AFFIRMATIVE DEFENSE OF LACH-
ES, DELAY, OR MATERIAL IMPAIRMENT IN THE DEFENSE OR INVESTIGATION OF THE
CLAIM MUST ALSO BE SUPPORTED BY A CERTIFICATE OF MERIT  SUBMITTED  BY  A
PERSON  WITH KNOWLEDGE OF THE FACTS SETTING FORTH THE SPECIFIC MANNER IN
WHICH THE DEFENSE OR INVESTIGATION HAS BEEN AFFECTED.  SAID  CERTIFICATE
MUST  BE  FILED  AT  OR  BEFORE  THE TIME IN WHICH THE ANSWER IS SERVED,
UNLESS OTHERWISE PROVIDED BY ORDER OF THE COURT.
  2. UPON MOTION BY ANY PARTY, THE COURT SHALL DETERMINE BY A PREPONDER-
ANCE OF THE EVIDENCE, WHETHER DEFENDANT HAS SUSTAINED HIS OR HER  BURDEN
OF  PROOF  ON  ANY  MOTION  TO  DISMISS THE ACTION OR ON ANY AFFIRMATIVE
DEFENSE IN WHICH IT IS ALLEGED THAT PREJUDICE HAS BEEN CAUSED TO DEFEND-
ANT IN THE INVESTIGATION OR DEFENSE OF  THE  ACTION  DIRECTLY  RESULTING
FROM  A  DELAY IN COMMENCING THE ACTION. A DEFENDANT SHALL NOT BE DEEMED
PREJUDICED SOLELY ON ACCOUNT OF THE PASSAGE OF TIME.
  3. ANY SUCH AFFIRMATIVE DEFENSE  SHALL  BE  DISMISSED,  AND  ANY  SUCH
MOTION  TO  DISMISS THE ACTION DENIED, IF THE COURT FINDS THAT PLAINTIFF

A. 2872--A                          3

ACTED IN GOOD FAITH AND WITH DUE DILIGENCE IN PURSUING THE  CLAIM  UNDER
THE  CIRCUMSTANCES,  WHICH  SHALL  INCLUDE  WHETHER  DEFENDANT  TOOK ANY
ACTIONS TO IMPEDE OR DELAY ANY INVESTIGATION OR  PREVENT  DISCLOSURE  OF
THE  FACTS ALLEGED TO THE PLAINTIFF OR TO THE GENERAL PUBLIC, AS WELL AS
WHETHER PLAINTIFF TOOK ANY ACTIONS  WHICH  DELIBERATELY  PREJUDICED  THE
DEFENSE  OR  INVESTIGATION OF THE CLAIM.  NOTHING HEREIN SHALL LIMIT THE
COURT, IN ITS DISCRETION, FROM RESERVING ANY DISPUTED ISSUES OF FACT FOR
LATER DISPOSITION BY THE FINDER OF FACT.
  S 4. The provisions of this act shall be severable, and if any clause,
sentence, paragraph, subdivision or part of this act shall  be  adjudged
by  any  court  of  competent  jurisdiction to be invalid, such judgment
shall not affect, impair, or invalidate the remainder thereof, but shall
be confined in its operation to the clause, sentence, paragraph,  subdi-
vision  or  part  thereof  directly involved in the controversy in which
such judgment shall have been rendered.
  S 5. This act shall take effect immediately.