Statutes - Validity of Statute - Claim-Revival Statutes - Due Process

Limitation of Actions - Revival of Time-Barred Claims - Adult Survivors Act - Due Process

Gabriella Orozco and Kimberly Klein for defendants.

Jordan Merson, Jordan Rutsky and Manraj Sekhon for plaintiff.

Plaintiff brings this action under the Adult Survivors Act{**88 Misc 3d at 242} (ASA). (CPLR 214-j.) The allegations in this matter arise from events that allegedly occurred in the summer of 1984, during which time plaintiff was serving as an intern for NBC. (Complaint, NY St Cts Elec Filing [NYSCEF] Doc No. 2 ¶ 42.) According to the complaint, plaintiff was assigned by NBC to work on the set of The Cosby Show, where she reported directly to NBC employee Frank Scotti. (Id. ¶¶ 43-46.) It is further alleged that during the course of her internship, plaintiff met defendant Bill Cosby (Cosby), who cultivated what was described as a "mentoring and fatherly" relationship with her at the studio. (Id. ¶ 48.) Cosby purportedly instructed plaintiff to be present on set each day and regularly included her in meetings and interactions with other staff. (Id. ¶ 49.)

Following the taping of an episode of The Cosby Show, plaintiff attended a cast party at the studio, which was attended by employees of the defendants. (Id. ¶ 50.) In the week preceding the party, Cosby was accompanied on set by an unidentified male, estimated to be in his twenties or thirties. (Id. ¶ 52.) At the party, plaintiff complained of a headache, at which point Cosby offered her two pills that he represented to be aspirin. (Id. ¶ 53.)

Plaintiff alleges that the pills were not aspirin, but rather an intoxicant that rendered her incapacitated. (Id. ¶ 55.) She avers that after ingesting the pills, she lost consciousness and awoke [*2]on a couch in Cosby's dressing room, where Cosby was allegedly fondling her breasts underneath her shirt. (Id. ¶ 58.) The complaint states that she did not, and could not, consent to such contact. (Id. ¶ 59.)

After briefly awaking to find herself being sexually assaulted by Cosby, plaintiff again lost consciousness and subsequently awoke naked in a bed she believes to have been located in the apartment of the unidentified male who had accompanied Cosby to The Cosby Show set earlier that week. (Id. ¶¶ 60-61.) Plaintiff alleges that upon awakening she physically felt as though she had been vaginally penetrated while incapacitated. (Id. ¶ 62.)

Plaintiff asserts six causes of action: (1) battery, (2) assault, (3) intentional infliction of emotional distress, and (4) false imprisonment against defendant William Cosby. (Id. ¶¶ 64-106.)

Plaintiff's remaining causes of action for negligence and negligent hiring, retention and supervision are against NBC Universal Media, LLC, Kaufman Astoria Studios, Inc., Astoria{**88 Misc 3d at 243} Studios Limited Partnership II, and The Carsey-Werner Company, LLC (Carsey-Werner). (Id. ¶¶ 107-145.) The parties have stipulated to discontinue the action as against NBC Universal Media, LLC. (NYSCEF Doc No. 56.) The parties have further stipulated to discontinue the action as against Kaufman Astoria Studios and Astoria Studios Limited Partnership II. (NYSCEF Doc No. 59.) Accordingly, plaintiff asserts causes of action for negligence and negligent hiring, retention and supervision against only the Carsey-Werner Company.

In motion sequence 002, defendant Cosby moves to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (5) and (7), arguing inter alia that plaintiff's claims lack factual specificity and that the Adult Survivors Act is unconstitutional under the United States and New York Constitutions for (1) allegedly violating defendant's due process rights and (2) violating the Ex Post Facto Clause.

In motion sequence 003, plaintiff moves to extend the deadline for service pursuant to CPLR 306-b on defendant Carsey-Werner.

Motion to Dismiss Standard of Review

On a CPLR 3211 (a) (5) motion to dismiss, "a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. In considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff." (Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011] [internal quotation marks and citation omitted].) Upon such a showing, "the burden shift[s] to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action or interposed the subject cause of action within the applicable limitations period." (Bailey v Peerstate Equity Fund, L.P., 126 AD3d 738, 740 [2d Dept 2015] [citations omitted].) "[P]laintiff's submissions in response to the motion must be given their most favorable intendment." (Benn, 82 AD3d at 548 [internal quotation marks and citation omitted].)

Pursuant to CPLR 3211 (a) (7), a party may move to dismiss a claim on the ground that the pleading fails to state a cause of action. Upon such a motion, the court must accept the facts alleged as true and determine simply whether plaintiff's facts fit within any cognizable legal theory. (See CPLR 3026; Morone v{**88 Misc 3d at 244} Morone, 50 NY2d 481 [1980].) The complaint shall be liberally construed, and the allegations are given the benefit of every possible favorable inference. (See Leon v Martinez, 84 NY2d 83, 87 [1994].)

Plaintiff's Claims are Sufficiently Pleaded

The ASA revives claims that allege "conduct which would constitute a sexual offense as defined in article [130] of the penal law." (CPLR 214-j.) Plaintiff alleges that she was drugged and sexually assaulted by Cosby at a cast party and raped later that night in 1985. Defendant argues that plaintiff's use of the word physically "felt" instead of something more definite like "knew" that she was drugged and raped shows that plaintiff's claims are not pleaded with required specificity to sustain a claim for battery.

Defendant relies on O'Neill v Wilder (2018 NY Misc LEXIS 26008, *9-10 [Sup Ct, Queens County, Oct. 25, 2018, No. 712235/2018]) for the proposition that plaintiff's complaint alleges mere speculation with respect to the incident, and it must therefore be dismissed. However, this case is distinguishable from O'Neill, where the court dismissed plaintiff's complaint in part for asserting that rape constituted battery, per se. In O'Neill the plaintiff's complaint was based on an alleged incident in which the plaintiff drank wine and then later woke up in a new location, alleging that the later development of a UTI indicated that she had been sexually assaulted, which constituted battery. Plaintiff's complaint herein sets forth a sequence of events in which plaintiff was allegedly handed drugs, purported to be aspirin, and woke up first to being sexually assaulted by defendant Cosby in his dressing room and later in another location where she physically felt that she had been vaginally penetrated while incapacitated. Such would constitute battery. Moreover, the court does not find a lack of specificity that is fatal to plaintiff's case at this early juncture. Plaintiff alleges a specific time and place of the alleged incident, and at the early stages of litigation, the court must afford a liberal construction of the pleadings provided. Therefore, the court finds that plaintiff's complaint is sufficiently pleaded at this juncture as to all claims, as any details not in the complaint are subject to further discovery.

Constitutionality of the Adult Survivors Act

Defendant moves to dismiss the complaint on the ground that the ASA is unconstitutional. Specifically, defendant contends that the ASA violates the Due Process Clauses of the{**88 Misc 3d at 245} United States and New York State Constitutions, and the Ex Post Facto Clause of the United States Constitution. For the reasons set forth below, the motion is denied.

A. New York State Due Process Requirements

It is well settled that revival of a time-barred claim does not violate due process "if it was enacted as a reasonable response in order to remedy an injustice" (Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 NY3d 377, 400 [2017]). Courts applying New York law assess revival statutes functionally, "weighing the defendant's interests in the availability of a statute of limitations defense with the need to correct an injustice." (World Trade Ctr., 30 NY3d at 394.)

The ASA satisfies that standard. The Legislature enacted CPLR 214-j to provide a one-year window in which survivors of sexual offenses committed when they were adults could bring civil claims previously barred by the statute of limitations. The legislative justification explicitly states that New York's limitations periods had proved insufficient "in giving survivors of these heinous crimes enough time to pursue justice" (Senate Introducer's Mem in Support of 2022 NY Senate Bill S66-A, enacted as L 2022, ch 203). Such shows a legislative intent to "correct an injustice."^[FN*]

Although no New York State appellate court has ruled directly as to the constitutionality of the ASA, the Southern District of New York explicitly found that the ASA does not violate the Due Process Clause of the New York State Constitution in Carroll v Trump (650 F Supp 3d 213, 224-225 [SD NY 2023]). The court in Carroll held that "it is not the function of courts to second guess the Legislature as to the existence of a serious injustice in determining the constitutionality of a revival statute" before ultimately concluding that the ASA is {**88 Misc 3d at 246}constitutional "just as the similar revival provision of the Child Victims Act has passed constitutional muster by every court to consider the question." (Carroll, 650 F Supp 3d at 222, 224-225.) This court adopts the Carroll court's ruling in finding that the ASA does not violate the New York State Constitution's Due Process Clause. As discussed infra, the Carroll decision also found that the ASA did not violate the United States Constitution's Due Process Clause.

Moreover, New York State courts have weighed in on precisely this question as it relates to the revival window of CPLR 214-g, the Child Victims Act (CVA). The CVA is a mirror statute to the ASA, reviving claims for alleged victims. The primary distinction between the two acts is that the ASA revives claims for people who allege that they were sexually assaulted when they were over the age of 18, while the CVA does the same for alleged victims who were under the age of 18 at the time of the alleged assault. The assertion that the ASA is unconstitutional because the plaintiffs were able to bring their suit at the time the alleged incident occurred is also without merit. The Court of Appeals in Hymowitz v Eli Lilly & Co. squarely rejected the notion that a claim revival statute violates the New York State Constitution's Due Process Clause because plaintiffs were able to assert a cause of action at the time of the initial alleged incident. (73 NY2d 487, 502 [1989].) Here, the fact that the plaintiff could have asserted a claim at the time of the alleged incidents is therefore irrelevant, as that fact alone has been found insufficient to support a finding of a violation of a defendant's due process rights.

Defendant's arguments that the two acts are fundamentally different because the CVA includes a "Justification" section are unpersuasive, as this court finds the legislative text between the two statutes and the legislative intent to be sufficiently similar for the purposes of analysis of the constitutionality of the ASA. New York State courts and federal courts have similarly found that the legislative intent of the ASA to clearly evince a legislative intent sufficient to defeat a due process challenge. (J.S.M. v City of Albany Dept. of Gen. Servs., 83 Misc 3d 1082, 1088 [Sup Ct, Albany County 2024]; see Carroll, 650 F Supp 3d at 224-225.)

In analyzing the constitutionality of the CVA, New York State courts have consistently held that it does not run afoul of the New York State Constitution's due process requirement because it was "enacted as a reasonable response in order to remedy an{**88 Misc 3d at 247} injustice." (Schearer v Fitzgerald, 217 AD3d 980, 982 [2d Dept 2023].) As the ASA and CVA are analogous statutes, and the legislative intent is clear, this court holds that the ASA does not violate defendant's due [*3]process rights under the New York State Constitution.

B. United States Constitution Due Process Requirements

Federal constitutional principles compel the same result. The United States Supreme Court has long held that revival of expired civil claims does not violate the Due Process Clause. (Stogner v California, 539 US 607, 651 [2003].) Moreover, in Chase Securities Corp. v Donaldson (325 US 304, 314 [1945]), the Supreme Court emphasized the deference it gives to the legislature relative to civil statutes of limitations:

"The[ ] shelter [of statutes of limitations] has never been regarded as what now is called a 'fundamental' right or what used to be called a 'natural' right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control." (Chase Securities Corp. v Donaldson, 325 US 304, 314 [1945].)

Further, as discussed supra the Southern District of New York in Carroll, adopted by this court, found that the ASA did not violate the Due Process Clause of either the United States Constitution or the New York State Constitution.

As claim revival statutes generally do not give rise to an issue of federal due process violations and the ASA specifically has been found to comply with federal due process protections this court is not inclined to disturb established precedent. Arguments that the ASA is different from the general class of claim revival statutes are unavailing, and as such this court does not consider such. Notably, defendant actually concedes that claim revival statutes pose no issue under the Fourteenth Amendment.

C. Ex Post Facto

Defendant further argues that the ASA violates the Ex Post Facto Clause of the United States Constitution. This argument is similarly without merit.

As the United States Supreme Court has made clear, the Ex Post Facto Clause, by its own terms, "applies only to penal statutes" (Collins v Youngblood, 497 US 37, 41 [1990], citing Calder v Bull, 3 US 386 [1798]). The ASA is a civil remedial{**88 Misc 3d at 248} statute. It imposes no criminal liability, and its sole function is to reopen access to civil courts.

In Smith v Doe (538 US 84 [2003]), the Supreme Court upheld a retroactive sex offender registration statute against an ex post facto challenge, emphasizing that "only the clearest proof" will suffice to override legislative intent and reclassify a civil statute as punitive. (Id. at 92.) Applying the Mendoza-Martinez factors, the Smith Court concluded that even the public registration of sex offenders—a far more severe consequence than mere monetary liability—was not punitive in nature. The ASA, which allows civil plaintiffs to seek compensatory and punitive damages under long-standing tort principles, does not remotely approach the threshold for punitive legislation.

Courts analyzing revival statutes akin to the ASA have reached the same conclusion. In Bernard v Cosby (US Dist Ct, D NJ, Sept. 29, 2023, No. 1:21-cv-18566, slip op at 23-25), the United States District Court rejected defendant's ex post facto challenge to a nearly identical New Jersey revival statute. The court explained that civil remedies, including punitive damages, do not transform a remedial statute into criminal punishment. That reasoning applies with equal force here. Defendants have failed to demonstrate that the ASA is punitive in nature such that the legislation may be successfully challenged on ex post facto grounds.

Accordingly, defendant's motion to dismiss is denied in its entirety on this ground as [*4]well.

In motion sequence 003, plaintiff seeks to extend the time to serve process upon defendant Carsey-Werner pursuant to CPLR 306-b. CPLR 306-b sets forth the service requirements and timing thereof, and specifically provides that "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

Courts have interpreted the "good cause shown" and "interest of justice" standards in CPLR 306-b as "two separate standards by which to measure an application for an extension of time to serve" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]). Good cause requires a showing that "diligent efforts at service" have been made by the party seeking an extension. (Id. at 105.) A court{**88 Misc 3d at 249}

"may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant." (Id. at 105-106.)

Courts routinely grant extensions for service in cases where "defendants have not demonstrated any prejudice." (Hernandez v Abdul-Salaam, 93 AD3d 522, 522 [1st Dept 2012].)

First, the court finds that plaintiff attempted to serve Carsey-Werner by mailing the pleadings to Carsey-Werner's principal and mailing address as listed with the Secretary of State. Second, Carsey-Werner is not prejudiced, as they have acknowledged knowledge of the complaint, in part by agreeing to participate in mediation of the underlying matter. Moreover, at the time the instant motion was filed, no discovery had taken place, further limiting any claim that Carsey-Werner was prejudiced. The court finds that, at this early stage of the litigation, Carsey-Werner will be afforded ample time and opportunity to answer, move and engage in discovery.

Although plaintiff concedes that service was not timely effectuated, for all of the foregoing reasons, the court finds that extending service is in the interest of justice. Therefore plaintiff's motion is granted to the extent that plaintiff is directed to properly serve process upon defendant Carsey-Werner within 30 days.

The court has considered the remaining arguments and finds such unavailing.

Accordingly, it is hereby ordered that defendant's motion sequence 002 to dismiss is denied in its entirety; and it is further ordered that plaintiff's motion sequence 003 to extend plaintiff's time to serve defendant Carsey-Werner is granted to the extent that plaintiff is directed to properly complete service of process upon Carsey-Werner within 30 days of the date of this order.

"Regardless of your age, sexual assault destroys a piece of you, and it takes most survivors time to process and overcome the trauma. More time than New York law currently allows. Now that the Adult Survivors Act is finally law, the doors to justice will be flung wide open and countless survivors will have an opportunity to seize justice by filing a case against their abusers, and the institutions that harbored them, in the civil court . . . [T]he passage of the ASA signals a long overdue shift in New York's law, a necessary rebalancing of the scales of justice and ensures that survivors are protected." (Governor Hochul Signs Adult Survivors Act, available at https://www.governor.ny.gov/news/governor-hochul-signs-adult-survivors-act.)