Anastasia M. McCarthy, attorney in Hurwitz & Fine's Child Victims Act (CVA) practice group, answers questions recently received in regards to the close of the Look-Back Window and the next steps in CVA cases.
With the Look-Back Window Closed is the Child Victim’s Act Over?
No. The CVA made other significant changes to New York law that will have a long-lasting impact on the litigation of civil sex abuse cases, including, removing the Notice of Claim requirements of the General Municipal Law and Education Law and extending the statute of limitations for all sexual abuse claims (arising from violations of Article 130 of the Penal Law) until the person reaches the age of 55.
Can my organization still be added as a Defendant in an already-filed Look-Back case?
It depends. We always tell clients that you can be sued at any time, by anyone. That doesn’t mean you don’t have viable defenses or a good argument about why you should NOT be brought in under and amended caption.
My organization is a Defendant in a Look-Back case. Can I still assert a cross-claim against another Defendant even though the window is closed?
Yes—A cross-claim against another defendant that seeks contribution and/or indemnification does not accrue until a judgment is rendered and payment is made. This means that the statute of limitations on any claim for indemnification or contribution does not run afoul of any statute of limitation until six years after payment is made.
How do you think the close of the window will impact litigation strategy or settlement discussions?
I expect the pace of discovery to generally pick-up across the board. Now that the “universe” of historical claims is known, parties can determine which matters could/should be consolidated for the purposes of discovery and will be better equipped to begin moving particular cases forward.
I expect that Courts across the state will see a temporary uptick in motions to dismiss, even if they seek only partial dismissal of certain claims.
Finally, I anticipate that the close of the window will allow for an increased number of settlements. For many defendants, historical claims come with historical insurance policies. This means working within policy limits (and aggregates) that reflect the value of a dollar from the past and not today. Understanding how many claims are alleged to arise within a particular policy period will help carriers and attorneys in negotiating appropriate settlements.
