The Second Department determined negligent supervision and negligent hiring causes of action against a school district, pursuant to the Child Victims Act (CVA), alleging the failure to protect plaintiff from sexual abuse by a fellow minor student, properly survived motions to dismiss. The case raised a question of first impression: Does the CVA revive causes of action which are based upon the actions of a minor who could not be criminally prosecuted for sexual offenses because of his age? The answer is “yes:”
… [W]e are presented with an issue of first impression as to whether CPLR 214-g may be used to revive civil claims and causes of action asserted against a school district that are based on alleged acts of sexual assault committed by a minor who could not have been subjected to criminal liability at the time the alleged acts of sexual assault occurred. Resolution of this issue requires the Court to determine the meaning of the phrase “conduct which would constitute a sexual offense as defined in [Penal Law article 130]” as used in CPLR 214-g, and in particular, whether that phrase is limited to conduct that would subject the person who committed the acts of sexual assault to criminal liability. * * *
… [W]e find that the plain meaning of the phrase “conduct which would constitute a sexual offense as defined in [Penal Law article 130]” as used in CPLR 214-g refers to the conduct described in the enumerated provisions of the Penal Law, and is not limited to those situations in which the conduct would subject the actor to criminal liability … . Anonymous v Castagnola, 2022 NY Slip Op 06682, Second Dept 11-23-22
Practice Point: Here, presenting a question of first impression, negligent supervision and negligent hiring causes of action against a school district alleging the failure to protect the plaintiff from sexual assault by a fellow minor student were deemed revived by the Child Victims Act, despite the fact that the student who assaulted plaintiff could not have been criminally prosecuted because of his age.