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After K.W. filed a Court of Claims case, seeking recompense under the Child Victims Act for sexual abuse she allegedly suffered at the hands of a staff member employed by the Sagamore Children's Psychiatric Center, the State moved to dismiss the case and asserted that K.W. had not satisfied the governing “time when,” and “nature of claim” requirements. And when that motion was granted, an appeal ensued.

On its review, the Appellate Division, Second Department, noted that K.W. alleged she was sexually abused by an employee, who went by the name “Brian,” back in 1993, when she was only 14 years of age and a resident of the Center. “Brian" is said to have “sexually assaulted her in a ‘theater’ within Sagamore ‘during gym’ class.” She also alleged that prior to the assault, the State "learned or should have learned that Brian … was not fit to work with children," and that it "became aware, or should have become aware," of the employee’s "propensity to commit sexual abuse.”

While the Court of Claims judge believed that the case was defective as K.W.’s claim lacked the requisite specificity -- particularly as to the “precise date” the assault occurred -- the AD2 didn’t think that kind of exactitude or precision was warranted and that the proffered allegations complied with the law’s “time when,” “notice” requirements. Similarly, her allegations with regard to the nature of her claim (in that she set forth the manner in which she was injured, and how the State was negligent), were also found to be “sufficient.”

As a result, all but K.W.’s “respondent superior” claims were reinstated. (Since that last claim wasn’t “cognizable as a matter of law,” the AD2 declined to revive it.)

I guess they couldn’t have stated it any better.

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K.W. v State of New York

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We believe it's shameful, and hypocritical, that the Attorney General's Office is taking a hard-line position in these cases.

In a statement issued on January 28, 2019, in response to the passage of the Child Victims Act, New York State Attorney General, Letitia James, noted:

“It is unconscionable that any individual would get away with sexually abusing a child. For far too long, too many New Yorkers have dealt with the long term physical and psychological pain of this abuse -- pain that has only been magnified by the lack of recourse and accountability. Today, that begins to change. The passage of the Child Victims Act will finally provide survivors with the justice they have long deserved and will serve as a loud and clear message that child abuse will never be tolerated here.” 

If the conduct is as "unconscionable" as she alleges, why would James's office actively seek to deny victims their "day in court?"  As a matter of policy, these cases should be heard on the merits, and not disposed of on technical or procedural grounds.