ALBANY (NY)
Times Union [Albany NY]
December 10, 2023
By Brendan J. Lyons
Attorney general’s office has challenged dozens of claims in which alleged victims can’t recall specific dates, places where abuse occurred
A potential flaw in the legislation that created New York’s Child Victims Act has led to legal turmoil in hundreds of cases filed by alleged sexual abuse victims in the Court of Claims, where the state attorney general’s office has waged a fierce effort to have many of the lawsuits that were filed against New York agencies dismissed.
A central focus of the state’s litigation strategy has been to assert that in the Court of Claims — where litigation targeting state-affiliated individuals or entities is adjudicated — the rules require a claimant to provide the date and location of when and where an incident is alleged to have taken place.
Those rules, part of the Court of Claims Act, outline the specific criteria that must be met for someone to sue the state. The act was necessary because states have sovereign immunity, and individuals have no constitutional right to file a lawsuit against a state unless they can meet the requirements outlined in the statute.
But when the Legislature passed the Child Victims Act in 2019 — temporarily suspending New York’s statute of limitations to allow the victims of childhood sexual assaults to sue their abusers or the institutions that may have harbored them — lawmakers neglected to adjust the requirements of the Court of Claims Act. (One possible reason: Lawsuits involving incidents from decades ago had rarely been filed in that venue.) With the strict “time when” rules still intact, Attorney General Letitia James’ office has used them to seek dismissal in dozens of cases involving sexual abuse victims who could not provide exact dates of when they were allegedly molested.
Attorneys for many of the victims said that because many of the allegations date back decades, their clients also may not be able to recall the exact locations within schools, hospitals or other facilities where they were abused. The attorney general’s office has also argued that without those details, cases should be dismissed.
The state’s aggressive approach has included seeking dismissals for filing errors, hiring experts to challenge the truthfulness of victims’ allegations, and pursuing vigorous appeals. That strategy has exasperated some of the attorneys representing clients whose pursuit of justice was paramount for the lawmakers who passed the landmark 2019 legislation.
“This has been a scorched-earth approach to Child Victims Act cases (by the attorney general),” said Ari L. Taub, an attorney and partner at Phillips & Paolicelli, a New York City firm that specializes in litigation involving sexual assault cases. “And these are the most meritorious and sympathetic clients that you can have: people who have not admitted to their abuse for dozens of years, and now are finally having the opportunity to bring their claim.”
Taub said he fears the attorney general’s office will use the same contentious legal strategies in cases filed under the similarly structured Adult Survivors Act, a 2022 law that temporarily lifted the statute of limitations to allow civil claims to be filed by individuals who allege they were sexually assaulted as adults. Its “lookback window” closed last month.
While the Catholic Church and many other institutions also have engaged in aggressive legal defenses in the cases, the plaintiffs’ attorneys contacted for this story said the attorney general’s office has been an especially difficult legal opponent in the Court of Claims cases, which generally involve defendants who were state employees or state-affiliated organizations — including summer camps, group homes, counseling programs or state-owned properties.
Taub noted the state’s zealous litigation strategy stands in contrast to that of New York City, where he said officials created a robust mediation program intended to help reach settlements with individuals who have brought forth credible allegations that they were sexually assaulted as children by city employees or claims involving city-run agencies.
“The fact the city will engage in good-faith negotiation doesn’t mean every case is going to settle, but that’s the way they’re approaching it,” Taub said. “They realized the purpose of what the statute was designed to do. … The state has taken the complete opposite approach, which is shocking to me, because the attorney general’s office is supposed to be one of the premier institutions in the country, particularly for defending the rights of victims.”
Gary Ginsburg, a spokesman for the attorney general’s office, issued a one-sentence statement in response to questions about the office’s litigation strategy in Child Victims Act cases: “The office of the attorney general has a statutory responsibility to defend New York state.”
Details of decades-old abuse
Initially, the attorney general’s office prevailed on most of its motions in the Court of Claims asking judges to dismiss the cases.
Those victories included an appellate court decision in Brooklyn upholding the state’s position on the need for victims to provide precise dates when abuse allegedly occurred. But that appellate court later reversed itself when the issue was reargued, and other appellate courts have issued similar rulings finding that the strict requirements of the Court of Claims Act are being met when a victim lists the year or years when they were allegedly assaulted.
Still, the shifting judicial outcomes are not the end of the battle. The attorney general’s office filed a motion in March seeking to get the matter before the Court of Appeals. If an appellate court grants that motion, the hundreds of Child Victims Act lawsuits filed in the Court of Claims could hang in the balance of whatever the state’s highest court decides — if it takes up the case.
A key turning point for the childhood sexual abuse lawsuits in the Court of Claims came in January, when Taub argued a case before the appellate division in Brooklyn on behalf of two women who alleged they were sexually assaulted and raped by a counselor four decades ago at a state-run center for troubled youth in Rockland County. That court, which weeks earlier had granted the attorney general’s arguments for dismissal in a different case, sided with Taub.
Taub had argued that because the women had provided a year and a range of years when the abuse began and/or took place, it was sufficient information for the state to conduct an investigation of the allegations — which was the basis of the “time when” requirement under the Court of Claims Act. The mid-level appellate panel agreed, returning its unanimous ruling in favor of Taub’s arguments within a month.
“If I don’t defeat that decision, every one of these cases are going away,” Taub told the Times Union last week.
In November, a state appellate court in Albany issued a similar decision in a case involving a man who alleges he was raped and sexually abused numerous times as a child by men who preyed on him between 1986 and 1990 in the Empire State Plaza next to the state Capitol. The complaint alleges his abusers included both state employees and members of the public, and that the incidents took place in “bathrooms, stairwells, tunnels, (a) boiler room, and Kitty Carlisle Hart Theatre,” which is in The Egg, the state-owned performing arts center located above the plaza complex.
In that case, the attorney general’s office filed a motion seeking dismissal for several reasons, including that the alleged victim did not provide the exact dates that the incidents took place during that four-year period. Court of Claims Judge Catherine E. Leahy-Scott — a former state inspector general — had granted the attorney general’s request to dismiss that lawsuit and dozens of other Child Victims Act cases for the same reason.
The Albany appellate court’s ruling, like others before it, noted the Child Victims Act had failed to modify the “pleading requirements” in the Court of Claims Act, “leaving the courts with the difficult task of determining … whether claims filed decades after the fact are sufficiently specific to enable the state to investigate and promptly ascertain the existence and extent of its liability.”
The panel of five judges noted that sexual abuse victims are generally incapable of providing exact dates for incidents alleged to have occurred years or even decades ago, when they were minors.
“The attorney general’s office is taking the law and twisting it to make sure that no cases, or few cases, can succeed against those (state) institutions,” said Cynthia S. LaFave, an Albany attorney who specializes in litigation involving rape and sexual abuse. “What child who was 4 or 10 or even 14 would remember the date and the time, and the exact place, that each act of sexual abuse occurred, when often it is decades past?”
Headed to the high court?
The Times Union began monitoring decisions in Child Victims Act cases in the Court of Claims last year and found dozens of cases in which judges were granting the attorney general’s motions to dismiss claims if victims were unable to pinpoint the dates they were allegedly abused.
Not all of the handful of Court of Claims judges who have presided in the Child Victims Act cases have ruled in favor of those motions. Judge J. David Sampson, based in Buffalo, has issued ruling against the attorney general’s office, including in a case filed by a woman who alleges she was repeatedly sexually abused as a child at the state School for the Blind in Genessee County between December 1966 and October 1967.
Sampson, citing a decision by a state appellate court as well as other prior rulings, rejected the attorney general’s argument that a claimant’s allegation that conduct “occurred at some time during a range of years” does not satisfy Court of Claims’ “strict pleading requirements mandating that claimants plead the time, place, and nature of the claim.”
Sampson’s decision noted that the requirement a claimaint provide the “time when” something occurred “is not absolute exactness, but simply a statement made with sufficient definiteness to enable the state to be able to investigate the claim promptly and to ascertain its liability under the circumstances.”
The judge also denied the state’s motion to dismiss that case on the grounds the claimaint had alleged she was sexually abused “on school premises,” but did not list the exact locations in the facility where it took place.
Additionally, he rejected the state’s argument that her complaint was invalid because it alleged her abuser had “engaged in unpermitted, forcible, and harmful sexual assault, sexual abuse and/or sexual contact,” but did not provide more detail about the incidents and what sections of state penal law may have been violated.
Initially, the attorney general’s strategy was buttressed by an appellate ruling the office won in Brooklyn. But in that case, attorneys had argued that the Child Victims Act was designed to effect justice and therefore a range of dates when abuse allegedly occurred was sufficient.
Taub, who convinced the Brooklyn court to reverse its earlier position, noted that the issue still may not be fully resolved until or unless the Court of Appeals weighs in.
For now, the appellate court has not ruled on the request filed by the attorney general’s office that seeks leave to appeal the decision that Taub won to the state’s highest court.
The state’s motion said the case “presents novel and important questions about the interaction between the Legislature’s longstanding and strict pleading requirements on actions for damages against the state under the Court of Claims Act … and the claim revival provisions of the Child Victims Act of 2019.”
But whether or when the issue may get to the Court of Appeals remains unclear.
“If this were any other defendant, I would say it’s very unlikely to go to the Court of Appeals, but because it’s the state of New York, they have a huge home-court advantage — not in the outcome, but in getting the high court to care about their appeals,” Taub said. “My suspicion is that it’s not going to go to the Court of Appeals at this time.”
But he believes that if there comes a point when the issue of the “time when” requirement is reviewed by the Court of Appeals as part of a broader issue, it could still imperil Child Victims Act cases pending in the Court of Claims.
“If the high court goes the other way, every single one of those cases will be dismissed — even if it’s after judgment — because it’s a jurisdictional issue,” Taub said. “It is a scary thing that hangs in the balance of every single one of these cases.”
Brendan J. Lyons is a managing editor for the Times Union overseeing the Capitol Bureau and investigations. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team. He became editor of the investigations team in 2013 and began overseeing the Capitol Bureau in 2017. You can reach him at blyons@timesunion.com or 518-454-5547.