Supreme Court, Westchester County, May 5, 2023

O'Neill Gallagher Law, PLLC, Bronxville (Shannon Gallagher of counsel), for The Church of Saint John and Saint Mary, defendant.

Grant & Eisenhofer P.A., New York City (Barbara Hart of counsel), for plaintiff.

Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains (William Bave of counsel), for Catholic Foreign Mission Society of America, Inc. and another, defendants.

Leahey & Johnson, P.C., New York City (Christopher Clarke of counsel), for The Roman Catholic Archdiocese of New York, defendant.

Before this court is a question of first impression: Is the claim revival provision contained in New York's Child Victims Act (CVA) and codified in CPLR 214-g applicable to wrongful death claims? Because both the expressed intent of the drafters of CPLR 214-g and that section's plain language reflect that the CVA revival provision was to benefit survivors of sexual abuse, and there is no evidence that the CVA was intended to benefit a survivor's heirs, this court concludes that a time-barred wrongful death claim is not revived by the CVA.

Plaintiff brings this action on behalf of the estate of decedent R.S.G., alleging that during [*2]the years of 1962-1969, when decedent was a minor, he was sexually abused by a nonparty, Brother/Father Edward Flanagan. Plaintiff's complaint alleged seven causes of action, including: (1) negligence; (2) negligent training and supervision of employees; (3) negligent retention of employees; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; (6) assault; and (7) wrongful death. This court dismissed the fourth, fifth and sixth claims described above in a decision and order dated October 4, 2022, following a motion pursuant to CPLR 3211 (a) (7) made{**80 Misc 3d at 246} by The Church of Saint John and Saint Mary (the Church) to dismiss certain claims. The court reserved decision on the Church's application to dismiss the wrongful death claim on the grounds that it is untimely. For the reasons set forth below, the court now grants this aspect of the Church's motion.^[FN1]

The salient dates relevant to the timeliness of plaintiff's action are as follows:

"On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired." (Bullfrog, LLC v Nolan, 102 AD3d 719, 719 [2d Dept 2013].) The burden then shifts to the plaintiff to aver evidentiary facts establishing a question of fact as to whether his or her cause of action was commenced within the statute of limitations or falls within an exception to the limitations period or as to whether a toll applies. (Berger v Stolzenberg, 158 AD3d 738 [2d Dept 2018]; Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2d Dept 2007].)

An action for wrongful death must be commenced within two years of the decedent's death. (EPTL 5-4.1.) Here, it is undisputed that plaintiff commenced her action after the expiration of the limitations period. Plaintiff, therefore, has the burden of establishing a question of fact as to whether the limitations period was tolled or that the claim is otherwise timely.

Plaintiff argues that CPLR 214-g, the CVA "revival" statute, is applicable and extended her time to file the claim until August 2021. In response, the Church argues that CPLR 214-g is inapplicable since the wrongful death claim needed no revival: when the CVA was enacted 30 days following the decedent's death the two-year period for plaintiff to bring her wrongful death claim had not yet run.

The Church's argument in this regard lacks merit and ignores that plaintiff was incapable of bringing a wrongful death action on the date of the decedent's death since the{**80 Misc 3d at 247} underlying personal injury claims were then time-barred. A fiduciary can bring a wrongful death claim only if the decedent has a cause of action against the alleged wrongdoer at the time of his or her death. (See EPTL 5-4.1 [1] [requiring that the alleged wrongdoer "would have been liable to the decedent by reason of such wrongful conduct if death had not ensued"]; Kelliher v New York Cent. & Hudson Riv. R.R. Co., 212 NY 207 [1914]; Bevinetto v Steven Plotnick, M.D., P.C., 51 AD3d 612 [2d Dept 2008]; Myers v City of Plattsburgh, 13 AD2d 866 [3d Dept 1961]; Margaret Valentine Turano, Prac Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 5-4.1 [1999 ed].) The date of the decedent's death is the operative date because that is when the wrongful death action accrues. (Perez v Baez, 185 AD3d 1062 [2d Dept 2020].)

Therefore, this court must determine whether CPLR 214-g acts to revive a wrongful death claim brought under EPTL 5-4.1 where the underlying sexual abuse cause of action was time-barred on the date of decedent's death. When analyzing the interplay of these two statutes it is important to keep in mind that both must be strictly construed. Plaintiff's ability to bring a wrongful death claim is solely a result of the passage of EPTL 5-4.1, a right created in derogation of the common law and which therefore must be strictly construed. (Martel v Southampton Hosp., 143 AD3d 787, 788 [2d Dept 2016].) CPLR 214-g is a revival statute that is an extreme example of legislative power and therefore it must also be narrowly construed. (S.H. v Diocese of Brooklyn, 205 AD3d 180, 188 [2d Dept 2022]; accord Anonymous v Castagnola, 210 AD3d 940 [2d Dept 2022]; Chapman v State of New York, 193 Misc 2d 216 [Ct Cl 2002] [revival statute did not expressly include language permitting revival of derivative claims on behalf of two infant children and such claims dismissed]; see 2A Carmody-Wait 2d New York Practice § 13:9 [Mar. 2023 update] [Because a revival statute is "such an extreme exercise of legislative power, a clear expression of legislative intent . . . that its purpose is to (revive) . . . proceedings of the nature involved, should be evident"].)

EPTL 5-4.1

Plaintiff's action is a hybrid of two very distinct claims: (1) the personal injury claims authorized by EPTL 11-3.2 (b) alleging negligence, which belonged to the decedent and seek recovery for his conscious pain and suffering on behalf of his estate; and (2) the wrongful death claim, authorized by EPTL 5-4.1, which belongs to the decedent's distributees and{**80 Misc 3d at 248} compensates them for their pecuniary losses resulting from the alleged wrongful acts. (See EPTL 5-4.3; Heslin v County of Greene, 14 NY3d 67, 76-77 [2010]; McDaniel v Clarkstown Cent. School Dist. No. 1, 110 AD2d 349, 350 [2d Dept 1985] [a "cause of action to recover damages for wrongful death is completely distinct from a cause of action based on personal injuries which survives the death of the injured party"].) The Church has not moved to dismiss the personal injury claims.

As noted above, a personal injury claim that is timely at the time of decedent's death may be brought together with the wrongful death claim. A wrongful death claim may be sustained regardless of whether the personal injury claim is untimely at the time of commencement, assuming the personal injury claim was sustainable on the date of death. (See Mikus v Rosell, 62 AD3d 674 [2d Dept 2009]; Scanzano v Horowitz, 49 AD3d 855 [2d Dept 2008].) But the wrongful death claim must be asserted within two years of the decedent's death or it is untimely. Where a personal injury action is timely brought but the two-year limitations period has expired on the wrongful death claim, the latter may not be maintained unless it can relate back to the filing of the personal injury action. (See Caffaro v Trayna, 35 NY2d 245 [1974].) The court now turns to the revival section of the CVA to analyze whether that section extended the two-year limitations period or otherwise tolled it.

The CVA

On February 14, 2019, New York State enacted the CVA which, inter alia, (1) extended the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL 30.10 [3] [f]); (2) extended the time in which civil actions based upon such criminal conduct may be brought until the child victim reaches 55 years old (see CPLR 208 [b]); and (3) opened a one-year window reviving civil actions for which the statute of limitations had already [*4]run, commencing August 14, 2019 (see CPLR 214-g). The "window" period was thereafter extended for an additional one year.

The legislation was primarily intended to revive civil claims by survivors of childhood sexual abuse that were time-barred under the existing statute of limitations, and to provide a more generous statute of limitations to such survivors in the future. (See Vincent Alexander, Prac Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 214-g.)

CPLR 214-g provides in relevant part:

"Notwithstanding any provision of law which {**80 Misc 3d at 249}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 as defined in article one hundred thirty of the penal law 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, and action thereon may be commenced not earlier than six months after, and not later than two years and six months after the effective date of this section." (CPLR 214-g [emphasis added].)

Although plaintiff relies on that portion of the statute that references "every civil claim or cause of action brought against any party" for her argument that the decedents' distributees may benefit from the revival provision, that language does not address or identify for whom the benefit of revival was intended. Instead, the statutory language emphasized by the court above reflects that the statute benefits claims "by a person for physical, psychological, or other injury or condition suffered as a result of [the wrongful] conduct." This language reflects an intent, as further demonstrated below, to benefit those plaintiffs who suffered sexual abuse, not a victim's distributees seeking to recover for their own purely pecuniary losses.

The legislative history of the statute supports this conclusion. In a letter to Governor Cuomo accompanying the legislation enacting CPLR 214-g that urges his support, the bill's sponsors expressly state that the goal of the legislation was to benefit long-suffering survivors: "The sexual abuse of children is a particularly heinous crime and causes survivors to carry an immense amount of emotional and psychological pain long after the abuse occurred. Victims of childhood sexual abuse must be provided the pathway to bring a case during adulthood." (Letter from Linda B. Rosenthal, Member of Assembly & Brad Hoylman, Senator, Feb. 11, 2019, Bill Jacket, L 2019, ch 11 at 5 [emphasis added].) The Memorandum in Support of the legislation provided to the Governor states:

"New York is one of the worst states in the nation for survivors of child sexual abuse. New York currently{**80 Misc 3d at 250} requires most survivors to file civil actions or criminal charges against their abusers by the age of 23 at most, long before most survivors report or come to terms with their abuse, which has been estimated to be as high as 52 years old on average. Because of these restrictive statutes of limitations, thousands of survivors are unable to sue or press charges against their abusers, who remain hidden from law enforcement and pose a persistent threat to public safety.

"This legislation would open the doors of justice to the thousands of survivors of child sexual abuse in New York State . . . ." (Senate Introducer's Mem in Support, Bill Jacket, L 2019, ch 11 at 7 [emphasis added].)

No mention of benefitting the heirs of survivors can be found and no legislation was passed extending the time for survivors' distributees to bring claims for damages. This absence is particularly significant in the face of other revival statutes previously passed by the Legislature that expressly included language reviving wrongful death claims that would [*5]otherwise be time-barred.

For example, in 1981, the Legislature passed legislation extending the time for Vietnam War veterans to bring claims for personal injuries resulting from exposure to Agent Orange—phenoxy herbicides. Section 214-b was added to the CPLR and a separate provision was passed that provided that "[e]very cause of action for an injury or death caused by contact with or exposure to phenoxy herbicides . . . which is barred as of the effective date of this act because the applicable period of limitation has expired is hereby revived . . . ." (L 1981, ch 266, § 4 [emphasis added].)

As part of a broader tort reform bill concerning exposure to other toxic substances, the Legislature in 1986 passed CPLR 214-c, which extended the then-existing statute of limitations for actions arising from exposure to harmful substances. The Legislature also passed a separate revival statute limited to five enumerated substances, which permitted previously barred actions to be commenced within one year of the effective date of the legislation. (L 1986, ch 682, § 4.) The revival statute provided that "every action for personal injury, injury to property{**80 Misc 3d at 251}or death" caused by the latent effects of exposure was revived. (Id. [emphasis added].)^[FN2]

In 1992, General Municipal Law § 205-e was amended to revive certain claims by police officers and their heirs stemming from acts of negligence. That amendment specifically revived "every cause of action for the personal injury or wrongful death of a police officer." (General Municipal Law § 205-e [2] [emphasis added]; L 1992, ch 474, § 2.)

Thus, the Legislature knows how to explicitly state that a revival statute applies to a wrongful death claim when that is its intent. (See Chemical Bank v Levine, 91 NY2d 738, 742 [1998].) The absence of such language in the CVA is not surprising—it is consistent with the express intent of the legislators to provide justice to survivors of sexual abuse even though the abuse took place many years ago. Judicially crafting a remedy to benefit the heirs of such survivors—many, if not most, of whom were not born when the child victims suffered their abuse—is not appropriate in the absence of (i) language in the enacted legislation providing for such a remedy and (ii) any evidence that the Legislature intended to provide such a remedy.

For all these reasons, the wrongful death claim is dismissed.

Any relief requested not specifically addressed herein is denied.