Follow Us On Social Media       

NEW YORK

Statute of Limitations

  • Current Civil SOL in a nutshell

    (click to view)

    SOL vs. perp: +5 years from majority = Age 23

    SOL vs. employer: +3 years from majority = Age 21

    Majority Tolling: Age 18

    Discovery Tolling: No

     

    SOL: + 5 years from majority vs. perp only, top counts (age 23); +3 years from majority for personal injury and third-party negligence (age 21); + 1 year from majority for assault/battery.

     

    1. NY CLS CPLR § 213-c. Action by victim of conduct constituting certain sexual offenses. Notwithstanding any other limitation set forth in this article, a civil claim or cause of action to recover from a defendant as hereinafter defined, for physical, psychological or other injury or condition suffered by a person as a result of acts by such defendant of rape in the first degree as defined in section 130.35 of the penal law, or criminal sexual act in the first degree as defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be brought within five years. As used in this section, the term “defendant” shall mean only a person who commits the acts described in this section or who, in a criminal proceeding, could be charged with criminal liability for the commission of such acts pursuant to section 20.00 of the penal law and shall not apply to any related civil claim or cause of action arising from such acts. Nothing in this section shall be construed to require that a criminal charge be brought or a criminal conviction be obtained as a condition of bringing a civil cause of action or receiving a civil judgment pursuant to this section or be construed to require that any of the rules governing a criminal proceeding be applicable to any such civil action.

     

    a. Laws 2006, ch 3, § 5(b), eff June 23, 2006, provides as follows:  § 5. This act shall take effect immediately and:  (b) sections three and four of this act shall apply to acts committed on and after such date as well as to acts committed prior thereto, provided that such section three of this act shall not apply to acts committed prior to such date where the commencement of an action thereon was barred under the provisions of article 2 of the civil practice law and rules in effect immediately prior to such date.

     

    2. N.Y. C.P.L.R. Law §214(5) (“The following actions must be commenced within three years:…5. an action to recover damages for a personal injury except as provided in sections 214-b, 214-c and 215”).

     

    a. John Doe No. 6 v Yeshiva & Mesivta Torah Temimah, Inc. 21 Misc 3d 443, 240 NYLJ 68, 863 NYS2d 891 (NY Super. 2008) (Action by former student alleging sexual abuse during his Majority under N.Y. C.P.L.R. § 105(j) by a non-party teacher was time-barred under the three-year statute of limitations for negligence in N.Y. C.P.L.R. § 214(5) and the one-year statute of limitations for sexual abuse/vicarious liability in N.Y. C.P.L.R. § 215(3) because the infancy and insanity tolls in N.Y. C.P.L.R. § 208 applied concurrently, not consecutively.)

     

    3. NY CLS CPLR § 215 (3) (The following actions shall be commenced within one year…3. an action to recover damages for assault, battery)

     

    TOLLING

     

    1. Majority, yes, 18.

     

    a. N.Y. C.P.L.R. LAW § 208 (Infancy, insanity–If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability…)

     

    b. Davis v St. Joseph’s Children’s Services, 64 NY2d 794, 486 NYS2d 914, 476 NE2d 313 (N.Y. 1985) (nothing suggests legislative intent to extend the infancy toll of CPLR § 208 beyond 18 for a person in foster care, nor was foster care alone, without an overall inability to function in society sufficient to invoke the toll for insanity contained in CPLR §208).

     

    c. Overall v. Estate of Klotz, 52 F.3d 398, 403, 1995 U.S. App. LEXIS 6375, 12-13 (2d Cir. N.Y. 1995) (“The district court held that Overall’s action was governed by the one-year statute of limitations set forth in N.Y. Civ. Prac. L. & R. § 215(3) (McKinney 1990), 6 but that the limitations period had been tolled until her eighteenth birthday under N.Y. Civ. Prac. L. & R. § 208 (McKinney 1990). Accordingly, the court found that absent some further reason to toll the limitations period, Overall’s claim would have been time-barred on November 8, 1961 — one year after she turned eighteen.”) (applying battery statute in effect prior to enactment of  § 213-c in 2006)

     

    2. Discovery, No.

     

    a. Overall v. Estate of Klotz, 52 F.3d 398, 400, 1995 U.S. App. LEXIS 6375, 3 (2d Cir. N.Y. 1995) (“This is not the first time New York courts have faced lawsuits brought by persons who claim to have recently unearthed long-hidden memories of child abuse. In other repressed-memory child abuse cases, New York has consistently refused to toll the statute of limitations on the theory that the abuse victim’s memory loss constituted insanity, that the abuser was somehow profiting from his own wrongdoing (equitable estoppel), or that the limitations period should begin after the abuse was “discovered” through psychotherapy.”)

     

    b. Cordero v. Epstein, 22 Misc. 3d 161, 166, 869 N.Y.S.2d 725, 728-729 (N.Y. Sup. Ct. 2008) (rejecting discovery tolling for drug addiction while noting “the legislative history of CPLR 208 indicates that the Legislature intended the toll for insanity to be narrowly interpreted . . . [and it] meant to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society. . . . In reaching this conclusion, it should be noted that a contrary interpretation of the statute could greatly and perhaps inappropriately expand the class of persons able to assert the toll for insanity and could, concomitantly, weaken the policy of the Statutes of Limitation as statutes of repose.”) (OVERVIEW: Woman’s civil sexual assault suit was dismissed as untimely as she was not entitled to a tolling of the applicable statute of limitations period based on her alleged insanity as her drug addiction did not establish insanity and she executed various contracts, complaints, and affidavits during the alleged time she was insane and, thus, was able to otherwise protect her legal rights. City of New York Administrative Code provisions that created its own sub-classes of intentional torts modifying the detailed scheme by the New York Legislature were preempted by the state law statute of limitations applicable to the claims.)

     

    3. Tolling during criminal action vs perp. Yes.

     

    a.  NY CLS CPLR § 215    (a) Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, the plaintiff shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.

     

    b. NY CLS CPLR § 215 (b)  Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, and such criminal action is for rape in the first degree as defined in section 130.35 of the penal law, or criminal sexual act in the first degree as defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law, the plaintiff shall have at least five years from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.

     

  • Current Criminal SOL in a nutshell

    (click to view)

    None for 1st degree rape (including any rape of a child under age 13 by an adult), 1st degree aggravated sexual abuse, and 1st degree course of sexual conduct against a child.

    Age 23 for most other crimes.

     

    None for 1st degree rape (including any rape of a child under age 13 by an adult), 1st degree aggravated sexual abuse, and 1st degree course of sexual conduct against a child. NY CLS CPL § 30.10 (2)(a).  +5 years from the earlier of victim’s 18th birthday or from reporting to law enforcement for most other crimes. NY CLS CPL § 30.10 (2)(f), NY CLS CPL § 30.10 (2)(b).

     

    NY CLS CPL § 30.10 (1.)  A criminal action must be commenced within the period of limitation prescribed in the ensuing subdivisions of this section.

     

    NY CLS CPL § 30.10 (2)(a) (“Except as otherwise provided in subdivision three:…(a)  A prosecution for a class A felony, or rape in the first degree as defined in section 130.35 of the penal law, or a crime defined or formerly defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be commenced at any time;”)

     

    The only class A felonies in New York are murder and kidnapping.

     

    NY CLS Penal § 130.35. Rape in the first degree

     

    A [fig 1] person is guilty of rape in the first degree when he or she engages in sexual intercourse with [fig 2] another person :

     

            1.  By forcible compulsion; or

     

            2.  Who is incapable of consent by reason of being physically helpless; or

     

            3.  Who is less than eleven years old [fig 1] ; or

     

            4. [Added, L 2000]  Who is less than thirteen years old and the actor is eighteen years old or more.

     

    NY CLS Penal § 130.50.  Criminal sexual act [fig 1] in the first degree

     

    NY CLS Penal § 130.70. Aggravated sexual abuse in the first degree (1).  A person is guilty of aggravated sexual abuse in the first degree when he or she inserts a foreign object in the vagina, urethra, penis [fig 1] , rectum or anus of another person causing physical injury to such person: (a)  By forcible compulsion; or (b)  When the other person is incapable of consent by reason of being physically helpless; or (c)  When the other person is less than eleven years old.

     

    NY CLS Penal § 130.75 (1).  A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration [fig 1] : (a)  he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, [fig 1] oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than eleven years old; or (b)  he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which [fig 1] include at least one act of sexual intercourse, [fig 2] oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.

     

    REMOVAL FOR 1st DEGREE OFFENSES WAS IN 2006. Applies to all claims not yet barred on June 23, 2006. See, 2005 N.Y. S.N. 8441, 2006 N.Y. ALS 3, 2006 N.Y. LAWS 3, 2005 N.Y. S.N. 8441

     

    [A> OR RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35 OF THE PENAL LAW, OR CRIMINAL SEXUAL ACT IN THE FIRST DEGREE AS DEFINED IN SECTION 130.50 OF THE PENAL LAW, OR AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.70 OF THE PENAL LAW, OR COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 130.75 OF THE PENAL LAW <A] may be commenced at any time;

     

    Laws 2006, ch 3, § 5(a), effective June 23, 2006, provides as follows:

     

       § 5. This act shall take effect immediately and:  (a) sections one and two of this act shall apply to offenses committed on and after such date as well as to offenses committed prior thereto, provided that such sections one and two of this act shall not apply to offenses committed prior to such date on which the prosecution thereof was barred under the provisions of section 30.10 of the criminal procedure law in effect immediately prior to such date; and.

     

    NY CLS CPL § 30.10 (2)(b)  A prosecution for any other felony must be commenced within five years after the commission thereof;

     

    NY CLS CPL § 30.10 (2)(f)  (“For purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law, other than a sexual offense delineated in paragraph (a) of subdivision two of this section, committed against a child less than eighteen years of age, incest in the first, second or third degree as defined in sections 255.27, 255.26 and 255.25 of the penal law committed against a child less than eighteen years of age, or use of a child in a sexual performance as defined in section 263.05 of the penal law, the period of limitation shall not begin to run until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.”

     

    Section (20(f) was added in 1996. Effective August 1, 1996. Applies only to offense committed on or after that date.

     

    “(Previous) § 7. This act shall take effect on the first day of August next succeeding the date on which it shall have become a law and shall apply only to offenses occurring on or after such date.”

     

    See, 1996 N.Y. A.N. 948, 1996 N.Y. ALS 122, 1996 N.Y. LAWS 122, 1996 N.Y. A.N. 948. Approved June 5, 1996

     

     (F) FOR PURPOSES OF A PROSECUTION INVOLVING 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 OF THE PENAL LAW COMMITTED AGAINST A CHILD LESS THAN EIGHTEEN YEARS OF AGE, OR USE OF A CHILD IN A SEXUAL PERFORMANCE AS DEFINED IN SECTION 263.05 OF THE PENAL LAW, THE PERIOD OF LIMITATION SHALL NOT BEGIN TO RUN UNTIL THE CHILD HAS REACHED THE AGE OF EIGHTEEN OR THE OFFENSE IS REPORTED TO A LAW ENFORCEMENT AGENCY OR STATEWIDE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT, WHICHEVER OCCURS EARLIER.

     

Age of Majority/Age of Consent/Age of Marriage

 

Age of Majority: 18.  See, N.Y. C.P.L.R. 105(j).

Age of Consent: 17.  See, N.Y. Penal Law § 130.55.

 

Age of Marriage with Parental Consent: 17 with judicial consent [effective July 20, 2017].

Age of Marriage without Parental Consent: 18.

See, N.Y. Dom. Rel. Law §§ 15, 15-a.

 

No law as of January 2014

 

 

 

  • Civil Medical Neglect Statute

    (click to view)

    NEW YORK defense to child endangerment

     

    In any prosecution for endangering the welfare of a child based upon an alleged failure or refusal to provide proper medical care or treatment to an ill child, it is an affirmative defense that the defendant is a parent, guardian or other person legally charged with the care or custody of such child; is a member or adherent of an organized church or religious group the tenets of which prescribe prayer as the principal treatment for illness; and treated or caused such ill child to be treated in accordance with such tenets.

     

    New York Penal Law §260.15

     

  • Criminal Medical Neglect Statute

    (click to view)

    N?A

Extreme Religious Liberty Statute

Medical Neglect Statute

CHILD USA

c/o Penn Center for Youth and Family Trauma Response

3535 Market Street, Office 3092

Philadelphia, PA 19104

info@ChildUSA.org

(215) 746-4165

 © Child USA 2017