Anonymous v. Anonymous

• Decision Date: 10 March 1992
• Parties: ANONYMOUS, Plaintiff, v. ANONYMOUS, Defendant.
• Court: New York Supreme Court

Page 713

584 N.Y.S.2d 713

154 Misc.2d 46

ANONYMOUS, Plaintiff, v. ANONYMOUS, Defendant.

Supreme Court, Suffolk County Trial Term, Part 28.

March 10, 1992.

Gulielmetti & Gesmer, P.C., New York City, for plaintiff.

Jones, Hirsch, Connors & Bull, New York City (James P. Connors, of counsel), for defendant.

ALAN D. OSHRIN, Justice.

By Summons dated August 22, 1991 and Complaint dated August 16, 1991 plaintiff has commenced this action seeking recovery for damages resulting from alleged sexual abuse, which she contends occurred from 1967 when she was four years of age until 1987 when she was twenty-four years of age. The Complaint contains seven separate causes of action and alleges that plaintiff sustained psychological injury which renders her incapable of bringing this action until early 1991, when therapy enabled her to remember the nature of the alleged abuse.

Two applications are now before the Court. Defendant has moved pursuant to CPLR 3211[a][5] seeking dismissal of the Complaint upon the grounds that each cause of action is barred by the Statute of Limitations. Plaintiff has cross-moved pursuant to CPLR 3025[b] to amend her complaint by adding allegations relating to corroboration of her claims and to clarify and supplement her claims regarding injuries.

Motions to amend pleadings are to be freely granted upon such terms as may be just with the decision to allow or disallow the amendment committed to the Court's discretion (Rothfarb v. Brookdale Hosp., 139 A.D.2d 720, 527 N.Y.S.2d 473 [1988]. It would, however, be improvident for a court to grant such leave if prejudice to the nonmoving party would result (Smith v. Bessen, 161 A.D.2d 847, 555 N.Y.S.2d 894 [1990] or if the insufficiency or lack of merit of the proposed amendment is clear and free from doubt (Courageous Syndicate Inc. v. People-to-People Sports Committee, Inc., 141 A.D.2d 599, 529 N.Y.S.2d 520 [1988]. There being no claim of prejudice by defendant and inasmuch as the sufficiency and merits of the proposed amendment cannot be determined until the hearing and determination of the hearing directed herein plaintiff's motion to amend her complaint adding corroboration of her claims and clarification and supplementation of her injuries is granted. Additionally, defendant's application to dismiss shall be treated as having been made with respect to the amended pleading, which is similar in nature, and based upon the same facts as the initial pleading.

When a party moves pursuant to CPLR 3211[a][5] for a judgment dismissing a claim on the ground that it is barred by the Statute of Limitations it is that party's burden initially to establish the affirmative defense by prima facie proof that the Statute of Limitations had elapsed--which burden does not include an obligation on the part of the movant to negate any and all exceptions that might apply to the statutory period (Hoosac Valley Farmers Exchange, Inc. v. A.G. Assets, Inc., 168 A.D.2d 822, 563 N.Y.S.2d 954 [1990]. By demonstrating that the first six causes of action sound in intentional tort and must be commenced within one year (CPLR 215[3]; that the seventh cause of action sounds in negligence and must be commenced within three years (CPLR 214[5]; that plaintiff reached majority in 1981, and that the applicable limitations periods have passed, and there being no "discovery of the injury rule" in sex abuse cases in New York (Bassile v. Covenant House, 152 Misc.2d 88, 575 N.Y.S.2d 233 [1991], defendant has met his burden.

Defendant having established that the Statute of Limitations period has elapsed the burden shifted to plaintiff to aver evidentiary facts establishing that the limitation period was tolled or that some exception to the statutory period exists (Waters of Saratoga Springs Inc. v. State of New York, 116 A.D.2d 875, 498 N.Y.S.2d 196 [1986] affd 68 N.Y.2d 777, 506 N.Y.S.2d 673, 498 N.E.2d 146 [1986]. Plaintiff argues that the Statute of Limitations has been tolled by virtue of her insanity disability (CPLR 208) ¹ and also that defendant is barred by the doctrine of equitable estoppel from asserting the Statute of Limitations as an affirmative defense (General Obligations Law sec. 17-103[4][b] ².

Plaintiff makes the following claims:

1) Defendant was her parents' next door neighbor throughout her childhood, as well as the father of her best friend, and sexually abused her, without her consent from 1967 to 1987.

2) The sexual abuse occurred from the time she was four until she was twenty-four years of age.

3) As a result of the psychological injuries she suffered, she had no recollection of events or understanding of the impact of such incidents of sexual abuse on her life until approximately January of 1991, when such recollection and realization were stimulated during her ongoing psychological therapy sessions.

4) During her youth she came to experience many debilitating behaviors such as eating binges; refusing to eat; outbursts of rage; thoughts of suicide; substance abuse; and alcohol abuse.

5) There were long periods during which she refused to wear glasses notwithstanding her poor vision, so that she would not be able to see herself or what was going on around her.

6) She experienced shame and self-loathing; found it difficult to make friendships; found herself unable to trust others; feared physical contact; found it terrifying to be with other people, and feared intimacy and sexual contact.

7) During this period she frequently felt "spaced-out" where she could not recall things she had said or done and experienced nightmares and flashbacks.

8) She was unable to manage her own affairs; unable to maintain employment long enough to support herself; relied upon her parents to support her, and for substantial periods of time continued to live with her parents.

9) Defendant would tell her that he was doing these "things" for her benefit and that she should not tell anyone else because it was their secret, and defendant's behavior threatened and frightened her causing her not to reveal the acts in question.

In support of her position that she experienced an overall inability to function in society and was unable to protect her legal rights and pursue her legal claims, plaintiff submitted the affidavit of one Stuart Grassian, M.D. ³ Dr. Grassian is a psychiatrist who states that he has been qualified as an expert witness in at least twenty trials, and requested that the Court treat his affidavit as expert testimony. Upon his examination of the plaintiff and the completion of a psychiatric evaluation of her, Dr. Grassian diagnosed plaintiff's current condition as post-traumatic stress disorder accompanied by, but not limited to, severe depression, eating disorder and sexual dysfunction. Dr. Grassian concluded that plaintiff's condition is the result of repeated sexual abuse by the defendant; that the psychological effects of the abuse were especially devastating because defendant and his wife stood in the role of parents to plaintiff; that plaintiff was for many years unable to recognize the relationship because of the devastating emotional distress and abuse she had suffered; that plaintiff turned her hatred and loathing against herself; came to see herself as ugly and repulsive; grew to hate herself; had only vague nightmarish feelings of an unintelligible nature with respect to her childhood, leaving her with no meaningful or coherent memories of being abused; carried into her adulthood a deep sense of shame, a debilitating fear of others and a particular fear of intimacy. Dr. Grassian states that as a consequence of her mental disorder and her resulting fears of other people, plaintiff has never been able to function on her own, and that plaintiff was functionally disabled despite being in psycho-therapy during most of her adult years. Dr. Grassian concludes that plaintiff did not have an overall ability to function independently in society and had no lucid intervals of significant duration. Finally, Dr. Grassian states that defendant, a trusted adult repeatedly telling plaintiff, a child, that "this is our secret", had a coercive effect upon her with an implicit threat that something dangerous and frightening would occur if their secret was revealed. Dr. Grassian concludes that duress was an integral part of the sexual abuse, and that this duress prevented plaintiff from speaking out.

The initial question for resolution is whether these claimed effects of the alleged sexual abuse are of such a nature as to support a finding that plaintiff is insane within the meaning of CPLR 208 in order for plaintiff to fall within one of the exceptions to strict application of the Statute of Limitations.

"A person is 'insane' pursuant to CPLR 208 ⁴ for the purposes of tolling the Statute of Limitations if he is unable to manage his business affairs and estate and to comprehend and protect his own legal rights and liabilities because of an overall inability to function in society" (Yannon v. RCA Corp., 131 A.D.2d 843, 845, 517 N.Y.S.2d 205 [1987] citing McCarthy v. Volkswagen of Am. Inc., 55 N.Y.2d 543, 450 N.Y.S.2d 457, 435 N.E.2d 1072 [1982]. The person claiming the benefit of the toll must establish that the mental affliction either existed at the time of the accrual of the cause of action or that it was caused by the event upon which the lawsuit is predicated (see Dumas v. Agency for Child Devel.--New York City Head Start, 569 F.Supp. 831 [1983]. Importantly, although the determination of insanity does not rest solely upon whether a person is an adjudicated incompetent (see Hammer v. Rosen, 7 N.Y.2d 376, 198 N.Y.S.2d 65, 165 N.E.2d 756 [1960] the provisions of CPLR 208 tolling the Statute of Limitations period for insanity is a concept equated with unsoundness of mind (Barnes v. County of Onondaga, 103 A.D.2d 624, 628-629, 481 N.Y.S.2d 539 [1984] affd 65 N.Y.2d 664, 491 N.Y.S.2d 613, 481 N.E.2d 245 [1985] citing Eisenbach v. Metropolitan Transp. Auth.,...