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March 20, 2024

First Department Clarifies Pleading Requirements Under NYS Child Victims Act

New York State’s Child Victims Act (CVA) provided a lookback window to file sexual abuse claims whose statute of limitations would have otherwise expired. The goal of the CVA was to allow victims who were under 18 years old at the time of the abuse to recover damages for a “sexual offense,” as defined in Penal Law § 130, as well as crimes of incest and sexual performance by a child. 

In a recent decision, Jane Doe v. Wilhelmina Models, Inc. et al.,i the Appellate Division, First Department, clarified the pleading requirements for CVA cases, particularly as they related to the conduct necessary to trigger the CVA. 

First, the defendants challenged the applicability of the CVA because the underlying conduct occurred outside of New York State. The court noted that so long as a plaintiff was a New York State resident at the time of the abuse, it did not matter if the abuse took place outside of the state for purposes of bringing a suit. The court reiterated one of its prior decisions stating the goal of the CVA was to revive every covered claim that could have been brought in New York State.ii 

Second, the defendants argued that the complaint failed to allege sufficient facts supporting a Penal Law violation. The court noted that Penal Law § 263.05 prohibits the use of a child in a sexual performance, which includes photographs involving the “lewd exhibition of the genitals.” The plaintiff, a then-17-year-old aspiring model, alleged that the defendants made her pose for photographs in sexually suggestive manners while she was “nude” and “naked.” The defendants, however, argued the word “genitalia” must be present in the complaint in order to trigger the CVA. The court rejected the argument, finding that a reasonable inference could be drawn that photographing the plaintiff while naked could result in the photographs capturing her genitalia. Thus, the “sexual conduct” component of Penal Law § 263.05 was satisfied, triggering the CVA. 

Finally, at the time the plaintiff alleged the inappropriate photographs were taken, Penal Law § 263.05 only applied to victims who were under 16 years old. The defendants argued that because she was 17 years old, there was no Penal Law violation and the CVA did not apply. The court disagreed and cited the intent of the CVA was to protect all of those under 18 years old, even if the criminal statute set a different age for criminal liability. It therefore found that a plaintiff’s age at the time of the alleged acts, so long as they were under 18 years old, permits a plaintiff to revive a claim otherwise meeting CPLR 214-g’s requirements. 

This decision will likely be an impediment to motions to dismiss in CVA cases going forward due its broad interpretation of the statutory scope. Barclay Damon will continue to monitor the impact of the CVA and the related provisions enacted in the Adult Survivors Act (ASA) on litigation throughout New York State. Our attorneys have significant experience with respect to the liability, damage, and insurance coverage issues pertaining to these claims.

If you have any questions regarding the content of this alert, please contact Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; Samantha McDermott, associate, at; or another member of the firm’s Torts & Products Liability Defense Practice Area.
iJane Doe v. Wilhelmina Models, Inc., et al., ___A.D.3d___, 2024 NY Slip Op 00969 (1st Dep’t 2024).
iiSamuel W. v. United Synagogue of Conservative Judaism, 219 A.D.3d 421, (1st Dep’t 2023). 

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