Supreme Court, Erie County, March 28, 2022

Goldberg Segalla LLP (Michael Applebaum of counsel) for Evangelical Lutheran Church in America, defendant.

Hurwitz & Fine, P.C. (Andrea Schillaci of counsel) for Upstate New York Synod of the Evangelical Lutheran Church in America, defendant.

Rupp Baase Pfalzgraf Cunningham LLC (Thomas Cunningham of counsel) for Resurrection Lutheran Church, defendant.

Lipsitz Green Scime Cambria LLP (Amy Keller of counsel) for plaintiff.

Defendants, Resurrection Lutheran Church, Upstate New York Synod of the Evangelical Lutheran Church in America and Evangelical Lutheran Church in America (hereafter, defendants), moved to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (5) and 208 (b) (NYSCEF [NY St Cts Elec Filing Sys] mots 002, 004, 005). Plaintiff opposed the motions.

This claim was filed pursuant to the Child Victims Act (CPLR 214-g). Plaintiff claims sexual abuse from 1960 to 1964 by two persons associated with his Boy Scout troop. The action was commenced on August 12, 2021. According to the complaint, plaintiff was born in 1951, making him at least 69 years old when the action was commenced.

Defendants argue that the age limit referenced in CPLR 208 (b) applies to the revival window set forth in CPLR 214-g and that the complaint is therefore time-barred. Plaintiff argues [*2]the age requirement of CPLR 208 (b) is not applicable to CPLR 214-g and relies in part on the provision of CPLR 214-g that states "[n]otwithstanding any provision of law . . . to the contrary."

"In matters of statutory interpretation, 'legislative intent is the great and controlling principle' . . . Because 'the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof' " (Matter of Peyton v New York City Bd. of Stds. & Appeals, 36 NY3d 271, 279 [2020], citing Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d 104, 114 [2005], and Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019]). A statute "must be construed as a whole," and "its various sections must be considered together and with reference to each other" (Town of Aurora v Village of E. Aurora, 32 NY3d 366, 372 [2018]). Further, the court may "inquire into the . . . {**75 Misc 3d at 329}purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history" (id.).

CPLR 208, entitled "Infancy, insanity," is a tolling provision based on the disabilities of infancy and insanity. CPLR 208 (b) is part of the Child Victims Act and states, in pertinent part:

"Notwithstanding any provision of law which imposes a period of limitation to the contrary . . . with respect to all civil claims or causes of action brought by any person for physical, psychological or other injury or condition suffered by such person as a result of conduct which would constitute a sexual offense . . . against such person who was less than eighteen years of age . . . such action may be commenced, against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of said conduct, on or before the plaintiff or infant plaintiff reaches the age of fifty-five years."

CPLR 214-g, entitled "Certain child sexual abuse cases," also part of the Child Victims Act, states:

"Notwithstanding any provision of law which imposes a period of limitation to the contrary . . . every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense . . . which conduct was committed against a child less than eighteen years of age, which is barred as of the effective date of this section because the applicable period of limitation has expired . . . is hereby revived" (emphasis added).

It is noted that CPLR 214-g does not contain an age limitation or refer to CPLR 208 (b).

In addition, the legislative memorandum for the bill, which was later passed into law as the Child Victims Act, justifies passage of the act as follows:

"This legislature would open the doors of justice to the thousands of survivors of child sexual abuse in New York State by prospectively extending the statute of limitations to . . . age 55 for bringing civil actions for physical, psychological or other injury suffered as a result of child sexual abuse against{**75 Misc 3d at 330} any party whose intentional or negligent acts or omissions are alleged to have resulted in the abuse.

"This legislation would also establish a one-year window in which adult survivors of child sexual abuse would be permitted to file civil actions, even if the statute of limitations had already expired . . .

"Passage of the Child Victims Act will finally allow justice for past and future survivors [*3]of child sexual abuse." (Senate Introducer's Mem in Support, Bill Jacket, L 2019, ch 11 at 7-8 [emphasis added].)

The Child Victims Act, construed as a whole and taking into consideration the plain meaning of the statutory text, as well as the intent of the legislature, leads to the conclusion that CPLR 208 (b) extends the statute of limitations to bring a civil action based on sexual abuse until the child victim reaches the age of 55 as of the effective date of the statute, February 14, 2019. CPLR 214-g, also effective on the same date, created a one-year revival window for time-barred claims, which was later extended by then Governor Cuomo for an additional year or until August 14, 2021 (L 2020, ch 130), regardless of the age of the victim.

As aptly stated by Justice Silver, "[d]efendants' argument mistakenly conflates the function and purpose of the present limited revival window and the function and purpose of the age cap for new claims not previously precluded" (Finnigan v Lionetti, Sup Ct, Bronx County, Oct. 6, 2021, Silver, J., index No. 70001/2019E).

Based on the foregoing, defendants' motions are denied.