By: Daily Record Staff//November 17, 2023
By: Daily Record Staff//November 17, 2023//
New York State Supreme Court, Appellate Division, Fourth Judicial Department
Child Victims Act
Substitution of party – Due diligence
Appealed from Supreme Court, Erie County
Background: The plaintiff commenced a personal injury action pursuant to the Child Victims Act. She alleged that she was sexually abused by her foster father while she was placed in a foster home. She originally named the defendant county and “Does 1-10,” which were described as entities providing foster care services in the county. Nearly a year later, she moved to substitute a defendant for DOE 1. That defendant foster-care facility moved to dismiss and was denied.
Ruling: The Appellate Division affirmed. The court held that the defendant foster care facility was adequately described and would have known that it was an intended defendant. The court further held that the plaintiff demonstrated that she made a diligent inquiry and genuine efforts to ascertain the identity of the defendant foster care facility prior to the running of the statute of limitations. The plaintiff was able to identify another foster child who was placed in the foster home with the plaintiff which allowed the county to identify the defendant foster care facility.
Daniel S.L. Rubin, of Girvin & Ferlazzo, for the defendant-appellant; Stuart S. Mermelstein, of Herman Law, for the plaintiff-respondent.