[Music] Hello and welcome to the Millennial Lawyer Podcast with New York litigation attorney Mark Shirian. Mark specializes in various areas of personal injury cases, employment law, employment discrimination, and medical malpractice. My name is Kevin Rosenquist, I am your host today and our episode is from trauma to triumph: the legal shift in assault cases under New York’s new victims laws. Mark, how are you doing today? 

I’m doing great, how are you? 

I’m good. I’m excited to get into this, this is a lengthy discussion. We’re going to try to fit into our normal normal slot here, so assault and battery cases seem very complex. Can you briefly explain the key legal differences between the two offenses. 

Yes, I mean, there are different elements, obviously, but compared to a negligence claim, negligence claims in New York are typically three years to bring before the statute of limitations. It’s three years on an assault and battery claim or intentional tort which is what we call it. Statue of limitations on those types of claims is one year. Okay, so a battery is, you know, touching someone. An apprehension of some sort of bodily contact with a person. Assault is more of not necessarily contact, but a reasonable apprehension of that sort of contact. So those are the differences between battery and assault, but they are both a one-year statue. 

How does the legal process for pursuing a civil suit differ from the criminal prosecution of an assault or battery? 

Great question. So just to go back, obviously, if you’re dealing with an assault and battery, the likelihood of there being a criminal companion case is very high. 

Sure, okay. 

So what we like to do, and people don’t necessarily know this, but there is this provision in New York if there is a pending criminal case. That typically tolls the statute of limitations on a case. So if there’s a criminal case and someone is charged with assault and battery, and let’s just say they plead guilty, 14 months after it occurred, you actually have a year not from when the assault and battery occurred, but you have a year from the end of the criminal case. So when we have an assault and battery case that there’s a criminal implication, we really rely on those instances in the District Attorney’s office because the District Attorney’s office will have all the evidence. They’ll have the surveillance videos, they’ll have the photographs, they’ll have witness statements, they’ll have the 911 calls. So we love when there’s a pending criminal case on an assault and battery claim because the District Attorney’s office is compiling all of the evidence and they do a lot of the work for us. To go even further, if there is a guilty plea, we could later on use that in the civil litigation to obtain summary judgment on liability. In other words, win the case on that point whether it’s the assault or the battery where we’re just doing a trial just on the damages. If they did plead guilty, those are some of the things we look for. If there’s a criminal case and, you know, trying to get as much evidence as we can from the District Attorney’s Office, another caveat with the District Attorney’s Office though, at least in New York, they don’t provide any of that information until the criminal case is over. Even if there’s an appeal pending, they won’t provide that information. They only provide it once the case is completely over. And you obtain that information via what’s called a foil request, a Freedom of Information law request, which can be done directly with the District Attorney’s office. So that’s what we do here when we’re dealing with an assault and battery claim that has criminal undertones. 

The child victims act has dramatically changed how sexual abuse cases involving miners are handled, could you explain the key provisions of the child victims act and and how it impacts victims of assault and battery? 

Sure. So to go back to the enactment of the law, so this law was enacted in 2019 and it was actually supposed to only be a one-year look back window where if there was any sort of child abuse going back even a hundred years prior, you could now pursue it as long as it was brought within this one-year window. But then COVID happened and the legislator, you know, they increased the window to 2021. So it was actually a two-year window, and we actually handled the case that went back to 1958. 

Holy cow. 

1958, the client was seven or eight-year-old, was on a field trip and was sexually abused on that field trip.

Now some of the provisions of the law is that the abuse must have occurred within the state of New York. We have about 10 of these cases, we’re still litigating them, and it’s unfortunate to see how this sort of abuse has impacted these clients, but I’m so happy that they’re able to have this opportunity to write these wrongs that occurred so long ago. 

So the provisions have allowed these people to now have a voice and to secure Justice for things that happened a long time ago. So it had to have been abuse that occurred within the state of New York and as far as what constitutes abuse, I believe the law says that, you know, it follows the criminal Penal Code. So whatever is considered a crime within the criminal Penal Code of abuse that would constitute a claim under the child victim act. What type of cases have you been seeing more frequently as a result of this law? 

The foster homes have been very big, unfortunately, like I said, we had a case against the city because this was abuse that occurred during a school trip in the city of New York. A bunch of religious institutions as well, unfortunately, have come up. And I’ll tell you that the courts have done a very good job with not only handling these claims, but organizing specific parts within the courts specific to some of these entities that have ensued. I won’t name the entities, but there have been judges assigned not only to the child victim act cases in New York, but to specific entities that have been sued for rampant abuse that occurred. So an entity that has a 100 cases, there are courts that have started specific parts to handle these claims against this one specific defendant in order to streamline the discovery that occurs in these cases. So that’s been interesting to see as well because you don’t really see that, you know, going back to car accident cases. You don’t see parts that just handle cases against Geico or Allstate, you don’t see that. But the courts in New York have done a very nice job to organize these cases and to give them the sensitivity and the diligence that they deserve. The adult survivors act provides a similar look back window for adult survivors of sexual harassment or, I’m sorry sexual assault. 

How does the ASA differ from the child victim act in terms of eligibility and impact? 

That’s a great question. It is very similar. So the child victim act you would have to be up until you’re 17 you would qualify for the child victim act. Okay, but with respect to the adult survivors act, you just have to be 18 or older and the abuse must have occurred in New York. Like I said it mirrors what would be a sex crime under the penal code. I will say the big difference that I have seen between the child victim act cases and the adult survivors act cases, which we do handle as well, is that you don’t need to prove consent with the child victim act cases. That’s the main difference because whether they consented or not is of no moment because they were not of age. Now with the adult survivors act, from what I’ve seen is there’s consent or they consented, and I thought that they consented, so that becomes more of an issue when you’re dealing with the adult survivors act because the defense could use that as a defense that there was consent. Which with the child victim act, it’s not a defense for them to say that there was, so that’s the main difference between the two and it’s nuance, but again, you know, I mentioned, you know, the religious institutions and the foster homes. With the adult survivors act, you look at what Wall Street was like in the 80s. It’s an opportunity now to hold wrongdoers accountable, and I’m very grateful that the legislator enacted the adult survivors act which I believe came about in November of 2022. Ajd that one it was also a one-year window and it ended in November of 2023. I believe it was Thanksgiving Day, so the adult survivors act window has also ended as well but I will add New York City has what’s called the gender motivated violence act, which I mentioned earlier assault and battery is a one-year statute. The gender motivated violence act is a seven-year statute of limitations, but the abuse must have occurred within New York City. And to go even further, you have to show that the violence occurred because of your gender. So those are just some laws that people are not necessarily aware of. 

And under the adult survivors act, survivors of sexual assault can file claims even if the statute of limitations has expired? 

Correct, as long as it was brought within that window. 

In that window. 

Correct. 

Yeah so can you talk about how this law has provided a sense of justice for those who may have felt fairly powerless beforehand? 

Yeah so like I said before, this sort of abuse completely ruins a person and a lot of these victims have suffered in silence and a lot of them never even spoke about the abuse that befell them and it has empowered them to speak up against their wrongdoers and to secure Justice and to secure compensation for ruined careers, ruined relationships, drug use. You know people don’t understand that especially when this sort of abuse happens in the workplace, these are economic crimes that occur. You know, forget the physical and the mental damage that occurs, but the economics with respect to what could happen to your career when you’re dealing with this in the workplace. So, I’m very happy for my clients that they have this opportunity to secure compensation for the abuse that befell them when they were a lot younger. 

What types of cases have you seen coming in since the law was enacted? Are there any common themes among them? 

An abuse of power I would say. In general terms, lack of oversight, lack of supervision, failure to implement safeguards to prevent this sort of thing from happening. Those are some of the things that I’ve seen an abuse of power. Yeah trusting too easily, lack of supervision of your own employees, but again, one thing that I’ve been seeing is that, look I told you we handled a case from 1958. We handled cases from the 70s, from the 80s, from the 90s, these are different times. These are different, you know, women’s rights have come a long way, children’s rights have come a long way. So, you know, you see that what they dealt with during whatever decade we’re talking about, you kind of have to deal with how it was back then and kind of navigate around that. And I say that if you’re, for example, if it’s a situation where they didn’t complain to anyone about the abuse, well it’s like, well why didn’t you complain? Well it was taboo to complain about something, like right, you know, you get that a lot. Or it becomes, you know, you deal with the what was going on with respect to race in this country and whether or not they believed or not if this happened. So that’s been a big challenge with these cases is kind of going back in time and dealing with these sort of themes as well when you’re litigating these cases. Also, you know, typically cases that come in, I’m dealing with the client now and their situation now or a couple years ago. It’s not much different. Do you get what I’m saying? 

Right. 

But when I’m dealing with adults in their 50s, 60s, 70s that were abused as children, going back in time and kind of picturing how they were when they were younger and how it affected them then and how it’s still affecting them now, that’s been a challenge. And staying sensitive throughout all of that and mindful about what they’ve gone through with respect to their life has been a challenge. Gathering as much evidence as we could, you know, good luck getting evidence on a on a case from 1958. Yeah, you know we were able to resolve that one, but not easy to litigate cases that occurred 30, 40, 50, 60 years ago.

What advice do you have for individuals that might be considering pursuing a claim under the child’s victim act or the adult survivors act? 

Speak to an attorney. Even if it might be a time bar, speak to an attorney because you don’t know what sort of resources are out there. It might be a time bar, it might be that you have no case and you can’t bring it, but an attorney might be able to guide you and direct you to somewhere where you can obtain resources with respect to the trauma and abuse that occurred in the past. So it never hurts to speak to an attorney and you don’t know, listen to what other states may implement similar laws like this and with foster homes, you know, we’ve seen children getting passed from one state to the other. You never know you might have a claim so imperative to speak to an attorney about, what sort of rights that you may have under these new laws that have been enacted for the sake of these abuse victims. 

Well thank you for tuning in to the Millenial Lawyer podcast with New York litigation attorney Mark Shirian. To connect with Mark, visit shirianpc.com be sure to like and subscribe to our channel and leave us a review in the comments. Mark, always great to see and hear from you. Thank you for giving us some insight into such a heavy topic. 

Thank you so much, my pleasure. 

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