“CALENDRICAL EXACTITUDE” WASN’T REQUIRED
After enactment of the Child Victims Act (CVA) D.F. filed a case against the State of New York alleging “negligent hiring, retention, and supervision.”
Apparently, when D.F. was 17-years-of-age, she was purportedly abused by an employee of the Ramapo Community Workshop – which provided “drug and alcohol counseling and crisis management,” to "troubled and/or at-risk” kids referred by the Ramapo Justice Court Diversionary Project. One of its workers, C.W., is alleged to have engaged in sexual misconduct with the teenager “multiple times,” over the course of a year (1982-1983).
C.W. was said to have been dishonorably discharged from the military (due to a “history of violence and other misconduct”), wasn’t initially required to take a Civil Service Test, thereafter failed the exam, and was fired for not passing and being “too friendly” with the young females. Yet, he was later re-hired. (And after D.F. reported the abuse, C.W. pleaded guilty to rape and was sentenced to a term of 1-5 years.)
After her case was filed, the State sought the lawsuit’s dismissal arguing that her claim was defective because it did not allege “the exact dates on which the alleged sexual abuse occurred.” And, after the Court of Claims granted that motion, D.F. appealed.
As the Appellate Division, Second Department, noted in its decision, the law which waives the State’s sovereign immunity ordinarily imposes a number of conditions, including that any claim set forth, “(1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed.”
But, in this instance, the AD2 didn’t think a strict application of the law was warranted. It noted that, since the abuse occurred more than four decades ago, it wasn’t “`reasonable to expect [the] claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required.’"
Since “calendrical exactitude” wasn’t a requisite, the appellate court concluded that dismissal predicated on a violation of the “`time when’ requirement,” was improvidently granted, and the matter was sent the matter back for consideration of the State’s other grounds for having the case thrown out.
Interestingly, when the CVA passed, Letitia James, the State’s Attorney General, released the following statement:
“It is unconscionable that any individual would get away with sexually abusing a child. For far too long, too many New Yorkers have dealt with the long term physical and psychological pain of this abuse -- pain that has only been magnified by the lack of recourse and accountability. Today, that begins to change. The passage of the Child Victims Act will finally provide survivors with the justice they have long deserved and will serve as a loud and clear message that child abuse will never be tolerated here.”
We believe the Attorney General should lead by example, and afford justice to abuse victims, rather than hide behind technical objections which work to wrongfully prolong a victim’s trauma and which needlessly delay a claim’s disposition.
Sadly, hypocrisy tends to be the scarlet letter when it comes to politics.
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DECISION