Second Department Joins Other Departments: NYS Child Victims Act Applies to Out-of-State Residents Who Resided in NYS at Time of Abuse

In Smith v. Pro Camps, Ltd.,¹ the Appellate Division, Second Department, joined the First and Fourth Departments in deciding that the New York State Child Victims Act (CVA) applies to an out-of-state plaintiff so long as they were a New York State resident at the time of the abuse, regardless of whether the wrongful conduct occurred in or outside of New York State. While the Second Department held in S.H. v. Diocese of Brookly² that a nonresident plaintiff could not bring a CVA claim if the alleged abuse occurred outside of New York State, it had yet to decide until now whether the same prohibition applied to a former resident who lived in New York State when the abuse occurred.  

Among other reforms, the CVA provided a two-year lookback window to file sexual abuse claims whose statutes of limitations would have otherwise expired. The purpose of this provision was to revive previously time-barred claims, but courts have made it clear that the CVA is not a means of creating a new private cause of action or criminalizing previously lawful behavior. 

In Smith, the plaintiff, who was a New York State resident at the time, attended defendant Pro Camp’s summer football camp in Vermont and alleged he was sexually abused by a football coach. The plaintiff alleged that Pro Camps negligently hired and retained the football coach, thus creating a situation in which the plaintiff could be sexually abused. Pro Camps moved to dismiss the complaint on the basis that it was time barred, even under the CVA, because the plaintiff was an out-of-state resident and the abuse occurred outside of New York State. 

The Second Department found that because the plaintiff was a resident of New York State at the time of the alleged abuse, New York State’s statute of limitations was applicable to his claims. The Second Department noted that the CVA is not concerned with the location of the alleged abuse. It is sufficient that the plaintiff was a New York State resident at the time of the wrongdoing for the CVA to apply. 

The court reasoned the legislative history of the CVA demonstrates that the act’s purpose is to support New York State survivors of sexual abuse and promote justice. Therefore, the Second Department found that the CVA applied to the plaintiff’s claims, his lawsuit was not time barred, and it denied the motion to dismiss.

This case now eliminates a prior nuance in the case law between the Second Department and other appellate departments. Based on the Smith decision, defendants in cases venued in the Second Department (Dutchess, Kings, Nassau, Orange, Putnam, Queens, Richmond, Rockland, Suffolk, and Westchester Counties) will no longer be able to argue the statute of limitations is a bar to claims of abuse that occurred out of state as a procedural defense to a CVA claim.

If you have any questions regarding the content of this alert, please contact Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; David Cost, partner, a dcost@barclaydamon.com; Tessa Hilt, summer associate, at thilt@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
                                                                                          
¹2024 N.Y. Slip Op 02074 (2d Dep’t 2024). 
²2022 N.Y. Slip Op 02982 (2d Dep’t 2022).