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GUIDELINES FOR FUTURE CHILD VICTIMS ACT COMPLAINTS WHERE DEFENDANT MOVES TO STRIKE “SCANDALOUS OR PREJUDICIAL MATTER” (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, laid out guidelines for future pleadings in Child Victims Act (CVA) complaints alleging sexual abuse. The question before the court was how the statute allowing the striking of “scandalous and prejudicial matter” (CPLR 3024(b)) should be applied to CVA complaints. The court ultimately only struck one phrase which referenced “another survivor of [defendant’s] molestation…”. Although the denial of a motion to strike scandalous matter from a pleading is not appealable, the 2nd Department granted leave to appeal:

Based upon the conclusions directly reached here, there are bright lines that should be followed in the future:

— Factual allegations about a plaintiff’s own alleged sexual abuse will not be stricken from the complaint under CPLR 3024(b) as they are central and necessary to giving notice of the transaction or occurrence or series of transactions and occurrences, and the material elements of the cause(s) of action asserted.

— Factual allegations about a defendant’s prior sexually-abusive conduct will not be stricken from the complaint under CPLR 3024(b) where one or more causes of action includes, as a necessary element, what acts or propensities an institutional defendant knew or should have known by the time of the plaintiff’s own abuse.

— Factual allegations about a defendant’s concurrent-in-time sexual abuse of another person will not be stricken from the complaint under CPLR 3024(b) where one or more causes of action includes, as a necessary element, what acts or propensities an institutional defendant knew or should have known by the time of the plaintiff’s own abuse.

— Factual allegations about a defendant’s subsequent relevant statements or conduct that specifically relate back to the sexual abuse of the plaintiff will not be stricken from the complaint under CPLR 3024(b).

— Factual allegations about a defendant’s statements or conduct involving a subsequent sexual abuse survivor, other than the plaintiff, may be stricken from a complaint under CPLR 3024(b) on the ground that they are scandalous or prejudicial and not necessary to the elements of the plaintiff’s specific cause(s) of action. Pisula v Roman Catholic Archdiocese of N.Y., 2021 NY Slip Op 06872, Second Dept 12-8-21

 

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