A.G., Plaintiff, v. CITY OF NEW YORK 10 (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 004) 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195 were read on this motion to RENEW/REARGUE/RESETTLE/RECONSIDER.

Upon the foregoing papers, plaintiff A.G. (“plaintiff”) moves pursuant to CPLR § 2221(e)(2) for leave to renew his opposition to the motions and cross-motion of defendants City of New York, New York City Administration for Children's Services (collectively, “the City defendants”), MercyFirst f/k/a St. Mary of the Angels Home, Sisters of Mercy of the Americas of the Mid-Atlantic Community, and the Diocese of Brooklyn (collectively, the institutional defendants) to dismiss the complaint. Plaintiff asks that, upon renewal, the Court deny the prior motions, or alternatively modify the dismissals to be without prejudice. MercyFirst, Sisters of Mercy, and the Diocese oppose. The City defendants oppose renewal insofar as plaintiff seeks restoration of common-law negligence claims, dispute the institutional defendants' preemption position, and join the request for a stay pending the Court of Appeals' resolution of the certified questions in Parker v Alexander, 171 F4th 146 [2d Cir 2026]). For the reasons that follow, renewal is granted; the prior determination is modified to reinstate plaintiff's statutory claim under the 2026 enactment of Administrative Code of the City of New York § 10-1104.1 against the moving defendants; the prior dismissal of plaintiff's common-law negligence-based claims remains in effect; and further proceedings on the reinstated statutory claim are stayed pending the Court of Appeals' disposition of the certified questions accepted in Parker.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff commenced this action on February 28, 2025. The complaint alleges that defendant Kathryn A. Ford sexually abused plaintiff while he was a minor residing in institutional care between approximately 2001 and 2003. Plaintiff alleges that the City and ACS placed him in care, that MercyFirst operated the residential facility, and that the other institutional defendants exercised varying degrees of authority, supervision, or control. Against the institutional defendants, the complaint asserts a statutory claim under the Victims of Gender-Motivated Violence Protection Law (“GMVA”), together with common-law negligence, negligent hiring, retention, and supervision theories.

MercyFirst moved to dismiss on April 24, 2025. The City defendants moved on May 19, 2025; Sisters of Mercy cross-moved on May 20, 2025; and the Diocese moved on May 23, 2025. The motions invoked CPLR §§ 3211(a)(5) and (7), principally contending that the claims were untimely, that the 2022 enabling-liability amendment to the GMVA could not be applied retroactively to conduct occurring in 2001-2003, and that the 2022 revival provision did not revive common-law negligence claims. Certain defendants also raised preemption and state constitutional due-process arguments.

On June 3, 2025, while the motions were pending, the Appellate Division, First Department, decided S.S. v Rockefeller Univ. Hosp. (239 AD3d 424 [1st Dept 2025]). S.S. held that neither the original GMVA nor the 2022 amendment applied retroactively; that the enabling provision created a new substantive cause of action and contained no clear expression of retroactive intent; and that the revival provision did not revive common-law negligence, negligent hiring, retention, or supervision claims (id. at 425-426). Plaintiff thereafter sought a discontinuance or dismissal without prejudice because legislation designed expressly to cure the retroactivity issue had been introduced in the City Council.

By decision and order dated September 9, 2025, this court granted the motions and cross-motion to dismiss and denied plaintiff's cross-motions. The court concluded that it was bound by S.S. and that the GMVA, as then written, did not revive statutory enabler liability or related negligence claims arising from pre-2022 conduct. Because a dismissal on statute-of-limitations grounds is a determination on the merits for claim-preclusion purposes, the court declined to label the dismissal without prejudice. The court expressly observed, however, that a subsequent change in law could support renewal under CPLR § 2221(e)(2), at least during the pendency of an appeal. Plaintiff filed notices of appeal on October 9, 2025.

On November 25, 2025, the City Council approved legislation expressly addressing pre-2022 enabling conduct. Following a mayoral veto on December 24, 2025, the Council overrode the veto on January 29, 2026. Administrative Code § 10-1104.1 now expressly provides a civil cause of action for injury caused by a party who commits, directs, enables, participates in, or conspires in a gender-motivated crime of violence occurring before January 9, 2022. It also creates a new limitations window and expressly addresses claimants who filed during the earlier March 1, 2023 to March 1, 2025 window, permitting amendment or refiling within the new statutory period.

Plaintiff initially filed renewal applications under the original motion sequence numbers and subsequently filed the present consolidated motion under sequence 004. The institutional defendants opposed. Plaintiff served a reply addressing preemption, waiver, abandonment, and the requested stay. Plaintiff expressly stated that he did not oppose a stay while the Court of Appeals considers the certified questions in Parker.

ARGUMENTS

Plaintiff argues that Administrative Code § 10-1104.1 is a quintessential change in law under CPLR § 2221(e)(2). The prior dismissal turned on the absence of unmistakable retroactivity language. The new enactment supplies precisely that language, expressly reaches conduct before January 9, 2022, revives enabling-liability claims, and protects claimants who filed during the prior revival window. Plaintiff relies upon Puello v City of New York (118 AD3d 492 [1st Dept 2014]) and Roundabout Theatre Co. v Tishman Realty & Constr. Co. (302 AD2d 272 [1st Dept 2003]) for the proposition that a subsequent change or clarification in controlling law may warrant renewal.

Plaintiff further argues that the GMVA is not preempted. Relying principally on Engelman v Rofe (194 AD3d 26 [1st Dept 2021]) and Center for Independence of the Disabled v Metropolitan Transp. Auth. (184 AD3d 197 [1st Dept 2020]), plaintiff characterizes the GMVA as a local civil-rights remedy rather than a municipal alteration of state tort limitation periods. Plaintiff maintains that the Child Victims Act (“CVA”) and Adult Survivors Act (“ASA”) do not expressly preempt local civil-rights remedies, that compliance with both state and local law is possible, and that the State has not occupied the entire field of civil remedies for gender-motivated violence. Plaintiff also disputes abandonment, arguing that the former statutory defect made the remaining issues either academic or unnecessary to reach and that the prior order rested solely upon S.S. Plaintiff consents to a stay pending Parker.

MercyFirst argues that the revival provision is both conflict- and field-preempted by the statewide schemes embodied in CPLR §§ 214-g and 214-j. It relies upon the federal district court's analysis in Parker v Alexander (779 F Supp 3d 361 [SD NY 2025]) and the Second Circuit's certification decision (171 F4th 146 [2d Cir 2026]). MercyFirst asserts that the CVA and ASA reflect a comprehensive statewide legislative judgment regarding revival of sexual-offense claims, and that the local law frustrates that judgment by creating a different and additional municipal revival period. It alternatively requests a CPLR § 2201 stay.

Sisters of Mercy and the Diocese argue that renewal cannot be granted because plaintiff did not substantively oppose every independent ground asserted on the original motions. They invoke Nassau County v Metropolitan Transp. Auth. (99 AD3d 617 [1st Dept 2012]) and related authority for the principle that renewal is not a vehicle to advance a new legal theory or repair a strategic omission. They contend that plaintiff abandoned the negligence claims, preemption issues, and due-process objections, and therefore cannot demonstrate that the new statute would change the prior determination. The Diocese additionally argues that retroactive imposition of enabling liability violates due process under Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 NY3d 332 [2020]).

The City defendants dispute preemption and emphasize the City's constitutional home-rule authority to enact local civil-rights protections. They nevertheless oppose restoration of plaintiff's common-law negligence claims because S.S. remains controlling on that distinct point and because Administrative Code § 10-1104.1 revives the statutory cause of action, not independent common-law claims. They join the request for a temporary stay pending Parker.

DISCUSSION

A. Renewal Based on a Change in Law

CPLR § 2221(e)(2) provides that a motion for leave to renew shall be based upon new facts that would change the prior determination or shall demonstrate a change in law that would change the prior determination. Renewal based on a change in law is committed to the court's sound discretion, but the statutory requirement is substantive: the change must bear directly upon the ground of the earlier ruling (Puello v City of New York, 118 AD3d 492 [1st Dept 2014]; Roundabout Theatre Co. v Tishman Realty & Constr. Co., 302 AD2d 272, 272-273 [1st Dept 2003]). Conversely, renewal is properly denied where the supposed change would not alter the dispositive analysis (Adler v Troy, 249 AD3d 564 [1st Dept 2026]; NYCTL 1999-1 Trust v 114 Tenth Ave. Assoc., Inc., 44 AD3d 576, 577 [1st Dept 2007]).

That standard is met here. The September 9, 2025 determination was expressly compelled by S.S., which found no clear legislative expression that the 2022 enabling provision applied to pre-enactment conduct. Administrative Code § 10-1104.1 supplies the very expression S.S. found absent. It identifies the covered pre-January 9, 2022 conduct, authorizes liability against persons or entities who direct, enable, participate in, or conspire in gender-motivated violence, establishes a new revival period, and expressly permits amendment or refiling by claimants who sued during the earlier window. The new law therefore does not merely furnish a different argument; it changes the governing statutory text and directly removes the legal premise on which the prior dismissal of the statutory claim rested.

The court rejects the contention that renewal is categorically barred because plaintiff did not brief every alternative dismissal theory in 2025. Nassau County and PD Cargo, CA v Paten Intl. S.A. (149 AD3d 511, 512 [1st Dept 2017]) prevent a party from using renewal to substitute a new theory for one previously litigated. Here, however, plaintiff invokes a newly enacted statute that the prior decision expressly anticipated. More importantly, the September 9, 2025 order did not adjudicate preemption or due process; it resolved the motions on the narrower and then-binding retroactivity ground. An unaddressed alternative argument is not transformed into an adjudicated holding merely because it appeared in a brief. The statutory change thus would, and does, change the prior determination of the statutory claim.

B. Scope of Renewal: Statutory Claim Versus Common-Law Claims

Renewal does not produce the same result for every cause of action. S.S. separately held that the 2022 revival provision did not revive common-law negligence, negligent hiring, retention, or supervision claims (239 AD3d at 426). Administrative Code § 10-1104.1 creates and revives a statutory civil-rights cause of action for specified enabling conduct. Nothing in the text presented on this motion states that independent common-law causes of action are revived. Courts may not extend a revival statute beyond its terms, because revival is an extraordinary legislative displacement of otherwise settled limitations defenses (see Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 365-372 [2020]; Gallewski v H. Hentz & Co., 301 NY 164, 174 [1950]).

Accordingly, the motion is granted only to the extent of the GMVA statutory claim. The prior dismissal of the negligence, negligent hiring, negligent retention, and negligent supervision causes of action against the moving defendants remains undisturbed. This conclusion gives full effect to the new enactment without reading into it a revival the Council did not express.

C. Preemption

Local laws enjoy a presumption of constitutionality, and the party challenging a local enactment bears the heavy burden of demonstrating invalidity beyond a reasonable doubt (LaValle v Hayden, 98 NY2d 155, 161 [2002]; Police Benevolent Assn. of City of NY, Inc. v City of New York, 40 NY3d 417, 426 [2023]). Under article IX of the State Constitution and Municipal Home Rule Law § 10, New York City may enact laws concerning the protection, safety, health, and well-being of persons within the City, provided the enactment is not inconsistent with the Constitution or a general State law. Preemption may be express, may arise from a direct conflict, or may be inferred where the Legislature has evidenced an intent to occupy an entire field (DJL Rest. Corp. v City of New York, 96 NY2d 91, 95 [2001]; People v Torres, 37 NY3d 256, 265 [2021]). Conflict preemption requires a head-on collision: the local law must prohibit what State law permits, permit what State law prohibits, or otherwise render simultaneous compliance impossible (Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 NY2d 761, 764 [1989]). Field preemption requires a clear showing that the State has assumed full regulatory responsibility in the relevant area (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377 [1989]).

On the present record, defendants have not established express preemption. The CVA and ASA contain no provision expressly invalidating local civil-rights causes of action or forbidding local revival periods. Nor is there an inevitable conflict in the ordinary sense: the GMVA does not require conduct that State law forbids or forbid conduct that State law commands. The more substantial contention is field preemption—whether the Legislature, through the CVA, ASA, and related limitations provisions, intended to occupy the entire field of revival remedies arising from sexual offenses.

The Appellate Division, First Department's decision in Engelman is highly relevant but not fully dispositive of that precise question. Engelman held that the GMVA's civil-rights remedy was not preempted by State tort statutes of limitation, explaining that the Council intended to create a distinct civil-rights cause of action rather than merely extend the limitations period for assault (194 AD3d at 31-33). Center for Independence of the Disabled likewise cautions against lightly inferring preemption where a municipality supplements State protections through a local anti-discrimination or civil-rights enactment (184 AD3d at 203-205). Those authorities materially undermine the proposition that any overlap with State tort remedies is enough to invalidate the GMVA.

At the same time, Parker presents the narrower and consequential question whether the State's specific revival schemes preempt the City's GMVA revival framework. The Second Circuit has certified that issue to the Court of Appeals, and the Court of Appeals has accepted it. Because the answer will control or materially shape this case, because the parties agree that a stay is appropriate, and because constitutional adjudication should be avoided where a narrower procedural course is available, the Court declines to render a definitive preemption holding before the Court of Appeals speaks (see Matter of Peters v New York City Hous. Auth., 307 NY 519, 527 [1954] [courts avoid unnecessary constitutional determinations]; CPLR § 2201). For purposes of renewal, however, the mere pendency of a serious preemption challenge does not erase the enacted statutory change or warrant leaving in place a dismissal founded on a retroactivity defect the Council has expressly cured.

D. Due Process

The Diocese's due-process argument likewise does not defeat renewal. Revival statutes are not per se unconstitutional. The Court of Appeals has long recognized that the Legislature may revive time-barred claims where the revival serves a reasonable measure to address an injustice, although the constitutional inquiry is sensitive to the nature and extent of the retroactive burden (Gallewski v H. Hentz & Co., 301 NY 164, 174-175 [1950]; Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 NY3d 377, 400-401 [2017]). Regina emphasizes that retroactive legislation must be supported by a legitimate legislative purpose furthered by rational means and that courts consider the parties' settled expectations, the period of retroactivity, and the public interest advanced (35 NY3d at 365-383).

Here, the Council expressly enacted a remedial civil-rights measure aimed at allowing survivors of gender-motivated violence to pursue claims against alleged enabling actors and specifically addressed persons whose timely filings under the earlier window were dismissed because the 2022 statute lacked sufficiently explicit retroactivity language. That purpose is legitimate, and the tailored provision permitting amendment or refiling by prior-window claimants bears a rational relationship to it. Defendants may ultimately develop an as-applied constitutional challenge based upon the particular claims and evidentiary burdens in this action, but the present motion does not establish beyond a reasonable doubt that § 10-1104.1 is facially invalid in every application (see LaValle, 98 NY2d at 161). The due-process argument therefore supplies no basis to deny renewal. Any preserved as-applied challenge may be renewed after the stay, on a developed record and in light of any controlling appellate guidance.

E. Dismissal Without Prejudice and the Proper Procedural Remedy

Plaintiff's alternative request to relabel the earlier dismissal without prejudice is unnecessary. Renewal permits the Court to modify its prior order to conform to the law now governing the action. Because § 10-1104.1 expressly allows qualifying prior-window claimants to amend or refile, claim-preclusion principles cannot be applied in a manner that nullifies that later legislative command (see Matter of OnBank & Trust Co., 90 NY2d 725, 731 [1997] [statutes should be construed to give effect to all provisions and avoid an unreasonable result]). The appropriate remedy is therefore to vacate the prior dismissal of the statutory GMVA claim as against the moving defendants and restore that claim, while leaving the common-law dismissals intact.

To the extent the existing complaint pleads the GMVA generally but does not cite § 10-1104.1 by number, that omission does not require dismissal. Pleadings are to be liberally construed, defects ignored absent prejudice, and leave to amend freely granted (CPLR § 3026, § 3025[b]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). After the stay is lifted, plaintiff may serve a proposed amended complaint clarifying reliance on § 10-1104.1, and defendants may raise any pleading-specific objections then available.

F. Stay Pending the Court of Appeals' Determination in Parker

CPLR § 2201 authorizes a court to stay proceedings in a proper case upon such terms as may be just. The power is discretionary and should be exercised to avoid inconsistent rulings, conserve judicial resources, and prevent unnecessary litigation where another pending determination is likely to dispose of or materially narrow the issues (Asher v Abbott Labs., 307 AD2d 211, 211-212 [1st Dept 2003]; Belopolsky v Renew Data Corp., 41 AD3d 322, 322 [1st Dept 2007]).

Those considerations strongly favor a stay. The Court of Appeals has accepted certified questions concerning municipal authority and preemption in the GMVA revival context. Its determination will be binding and may control the viability or scope of the reinstated statutory claim. The City defendants and MercyFirst request a stay, and plaintiff does not object. Limited discovery or motion practice before that ruling would risk substantial duplication and inconsistent treatment among similarly situated cases. The stay shall therefore remain in effect until 30 days after the Court of Appeals issues its decision in Parker, unless further order of this court provides otherwise

Accordingly, it is hereby

ORDERED that plaintiff's motion for leave to renew pursuant to CPLR § 2221(e)(2) is granted; and it is further

ORDERED that, upon renewal, the court's decision and order dated September 9, 2025 is modified to vacate the dismissal of plaintiff's statutory claim under the Victims of Gender-Motivated Violence Protection Law as against defendants City of New York, New York City Administration for Children's Services, MercyFirst f/k/a St. Mary of the Angels Home, Sisters of Mercy of the Americas of the Mid-Atlantic Community, and Diocese of Brooklyn, and that statutory claim is restored pursuant to Administrative Code of the City of New York § 10-1104.1; and it is further

ORDERED that the branches of plaintiff's motion seeking restoration of the common-law negligence, negligent hiring, negligent retention, and negligent supervision claims against those defendants are denied, and the September 9, 2025 dismissal of those claims remains in full force and effect; and it is further

ORDERED that defendants' preemption and as-applied due-process defenses are preserved, but neither defense warrants denial of renewal on the present record; and it is further

ORDERED that all proceedings concerning the restored statutory claim are stayed pursuant to CPLR § 2201 until 30 days after the New York Court of Appeals issues its determination of the certified questions accepted in Parker, unless otherwise ordered by this court; and it is further

ORDERED that, within 20 days after expiration of the stay, the parties shall confer and submit a joint status letter proposing a schedule for any amended pleading, responsive pleading or motion, and further proceedings; and it is further

ORDERED that this matter is referred to the inventory of a jurist in a City Part due to the presence of the City of New York as a named party; and it is further

ORDERED that the Clerk of the Court is directed to restore this action, stay the all proceedings concerning the restored statutory claim pursuant to CPLR § 2201, and reassign this matter to the inventory of a jurist in a City Part forthwith following service of a copy of this decision and order with notice of entry; and it is further

ORDERED that plaintiff shall serve a copy of this decision and order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the court.

Hasa A. Kingo, J.