COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 71 June 10, 1997

A. 2088 By: M of A Lafayette

Assembly Committee: Codes

Effective Date: July 1, 1997

AN ACT to amend the civil practice law and rules, in relation to limitations of time on civil actions to recover damages for injuries caused by child abuse

LAW AND SECTIONS REFERRED TO: CPLR 215-a (new)

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#22)

THIS BILL IS DISAPPROVED

This bill provides that an action for damages for personal injury caused by child abuse shall be commenced within one year of discovery of the abuse by the plaintiff. The extension provided by reason of infancy (CPLR § 208) remains. The bill incorporates by reference the definition of "abused child" set forth in Social Services Law § 371(4)(b). That definition includes both physical and sexual abuse committed by a parent or other person legally responsible for a child's care.

The bill attempts to remedy the injustice that may result when a victim of child abuse discovers the abuse after the applicable statute of limitations has expired.

The bill is disapproved for the following reasons. There is no limit on when a plaintiff can commence suit, other than the plaintiff's own discovery of the abuse. A plaintiff could conceivably discover the abuse years or even decades after infancy terminates and still bring a timely suit. Litigation years after an alleged wrongdoing should be discouraged. Memories of witnesses are less reliable, witnesses may be deceased or difficult to find, and relevant evidence may no longer be in existence.

The bill also bases accrual solely on the subjective discovery of the abuse by the plaintiff, a factor that does not encourage the diligent pursuit of these claims. A requirement that the suit be commenced before the plaintiff reaches a certain age would have the benefit of eliminating extremely belated claims and of reducing litigation over when the abuse was discovered or should have been discovered by the plaintiff.

In addition, the bill is limited to claims against a parent or guardian and does not address claims against other individuals or entities. (Social Services Law § 371(4)(6). Nor does the bill specifically address extending the time in which to commence suit for negligence as opposed to intentional acts. Any future bill should address these issues.

For the foregoing reasons, this bill is DISAPPROVED.

Person Who Prepared The Report: Patricia M. Curtin, Esq.

Chair of the Committee: Paul Aloe, Esq.