Motion-Secondary: Kaja Sokola v. Harvey Weinstein, Robert Weinstein, The Walt Disney Company, Disney Enterprises, Inc., Miramax Holding Corp., Miramax Film Ny Llc f/k/a Miramax Film Corp., Doe Corp. 1-10

On December 19, 2019 a Motion-Secondary was filed involving a dispute between Kaja Sokola, and Disney Enterprises, Inc., Doe Corp. 1-10, Harvey Weinstein, Miramax Film Ny Llc F K A Miramax Film Corp., Miramax Film Ny Llc F K A Miramax Film Corp., Robert Weinstein, The Walt Disney Company, for Torts - Child Victims Act in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
KAJA SOKOLA., Index No.: 950250/2019

Plaintiff,

- against -

HARVEY WEINSTEIN, ROBERT WEINSTEIN, THE WALT
DISNEY COMPANY, DISNEY ENTERPRISES, INC.,
MIRAMAX HOLDING CORP., MIRAMAX FILM NY LLC
f/k/a MIRAMAX FILM CORP., and DOE CORP. 1-10,

Defendants.

DEFENDANT HARVEY WEINSTEIN’S MEMORANDUM OF LAW
IN SUPPORT OF HIS MOTION TO DISMISS

Imran H. Ansari
AIDALA, BERTUNA & KAMINS P.C.
546 5th Avenue, 6th Floor
New York, New York, 10036
(212) 486-0011
Attorneys for Defendant Harvey Weinstein

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TABLE OF CONTENTS

Page
PRELIMINARY STATEMENT……….……………………………………………..……. 1

PROCEDURAL HISTORY……………….………………...…………………………....... 2

STATEMENT OF FACTS………………………………………………………………… 3

LEGAL STANDARD……………………………………………………………………… 5

LEGAL ARGUMENT…………………………………………………………………….. 6

POINT I: THE REVIVAL PROVISION OF THE NEW YORK CHILD VICTIMS
ACT VIOLATES THE DUE PROCESS CLAUSE OF THE NEW YORK
STATE CONSTITUTION…………………………………………………. 6

A. Courts in the State of New York Have Long Held that Statutes of
Limitations Protect Both the Integrity of the Judicial Process and a
Defendant’s Due Process Rights……………………………………… 6

B. The CVA Does Pass New York’s “Stringent” Test in Determining
Whether a Claim-Revival Statute is Constitutional…………………... 8

C. Sokola Could Have Timely Filed Her Claims and Therefore Her
Complaint Should be Dismissed Pursuant to the Decision of the
Court of Appeals in Zumpano……………………………………………… 12

D. The Revival of Antiquated Claims Stifles a Defendant’s Due
Process Rights and Undermines the Integrity of the State’s
Judicial System………………………………………………………. 16

E. The Precedent of the Court of Appeals is Binding on this Trial
Court………………………………………………………………….. 19

CONCLUSION …………………………………………………………………………… 24

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TABLE OF AUTHORITIES

Cases

Attallah v. Millbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026 (2d Dep’t 2019) ..................... 5

Benn v. Benn, 82 A.D.3d 548 (1st Dep't 2011) ........................................................................................ 6

Bertholf v. O’Reilly, 74 N.Y. 509 (1878) ............................................................................................... 18

Campbell v. Holt, 115 U.S. 620 (1885) .............................................................................................. 8, 20

Chase Secs. Corp. v. Donaldson, 325 U.S. 304 (1945) ............................................................................ 8

Corn v. Hargro Fabrics, Inc., 91 N.Y.2d 362 (1998) .............................................................................. 5

Doe A. v. Diocese of Dallas, 234 Ill.2d 393 (2009)................................................................................ 20

Doe v. Crooks, 364 S.C. 349 (2005) ....................................................................................................... 20

Doe v. Hartford Roman Catholic Diocese Corp., 317 Conn. 357 (Conn. 2015) ..................................... 9

Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338 (Mo. 1993) .................................. 20

Dugway, Ltd. V. Fizzinoglia, 166 A.D.2d 836 (3d Dep’t 1990) ............................................................... 5

Elsky v. KM Insurance Brokers, 139 A.D.2d 691 (2d Dep’t 1998) .......................................................... 5

Felice v. Warf, No. SC 451/2019, 2019 WL 3757657 (N.Y. City Ct. Aug. 7, 2019) ............................ 19

Gallewski v. Hentz & Co., 301 N.Y 164 (1950) .............................................................................. passim

Giuffre v. Dershowitz, No. 19-cv-3377, 2020 WL 2123214 (S.D.N.Y. Apr. 8, 2020) .......................... 23

Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120 (1986) ............................................................................ 7

Helvering v. Hallock, 309 U.S. 106 (1940) ............................................................................................ 21

Hopkins v. Lincoln Trust Co., 233 N.Y. 213 (1922) ................................................................................ 8

Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989) ....................................................................... passim

In re “Agent Orange” Prod. Liab. Litig., 597 F. Supp. 740 (E.D.N.Y. 1984)....................................... 17

In re 381 Search Warrants Directed to Facebook, Inc., 29 N.Y.3d 231 (2017) .................................... 19

iii

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In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 66 F. Supp. 3d 466 (S.D.N.Y. 2014) .. 15,

……………………………………………………………………………………………...16, 21

Jensen v. Gen. Elec. Co., 82 N.Y.2d 77 (1993) .................................................................................. 7, 23

Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996) .................................................................................... 20

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) ........................................................................ 10

Maas v. Cornell Univ., 94 N.Y.2d 87 (1999) ........................................................................................... 5

Marquez v. Presbyterian Hosp. in City of New York, 608 N.Y.S.2d 1012 (Sup. Ct., Brx. Cty. 1994) .. 24

Matter of McCann v. Walsh Constr. Co., 282 App. Div. 444 (3d Dep’t 1953), aff’d without op., 306

N.Y. 904 (1954) ................................................................................................................... passim

Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377 (2017) ........... passim

People v. Bing, 76 N.Y.2d 331 (1990) ................................................................................................... 21

People v. Cortes, 80 N.Y.2d 201 (1992) ................................................................................................ 19

People v. Crespo, 32 N.Y.3d 176 (2018) ............................................................................................... 21

People v. Hobson, 348 N.E.2d 894 (1976) ....................................................................................... 21, 22

People v. Leyra, 302 N.Y. 353 (1951) .................................................................................................... 18

People v. Scott, 54 Misc. 3d 551 (Sup. Ct. Kings Cty. 2016) ................................................................ 19

People v. Taylor, 9 NY.3d 129 (2007) ................................................................................................... 22

QK Healthcare, Inc. v. In Source Inc., 108 A.D.3d 56 (2d Dep't 2013) .................................................. 6

Regina Metro. Co. LLC v. New York State Div. of House. & Cmty. Renewal, No. 1, 2020 N.Y. Slip Op.

02127, 2020 WL 1557900 at *14 (N.Y. April. 2, 2020) ........................................................ 8, 23

Rios v. Carrillo, 53 A.D.3d 111 (2d Dep’t 2008) ................................................................................... 19

Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924)............................................. 9, 10, 14

Siegel v. Wank, 183 A.D.2d 158 (3d Dep't 1992). .................................................................................... 6

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Snyder v. Town Insulation, Inc., 81 N.Y.2d 429 (1993) ........................................................................... 7

Starnes v. Cayouette, 244 Va. 202 (1992 ............................................................................................... 20

State v. Robert V., No. 251233-2010, 2011 WL 1364452 (Sup. Ct. Bronx Cty.), on reargument, No.

251233-2010, 2011 WL 4904400 (Sup. Ct. Bronx Cty. 2011), aff’d, 111 A.D.3d 541 (2013) . 19

Stuart v. Palmer, 74 N.Y. 183 (1878)..................................................................................................... 18

Sweener v. Saint-Gobain Performance Plastics Corp., No. 1:17-CV-0532, 2019 WL 748742, at *8

(N.D.N.Y. Feb. 7, 2018) ............................................................................................................. 11

Thomas v. Bethlehem Steel Corp., 63 N.Y.2d 150 (1984)...................................................................... 23

Torrey v. Portville Central Sch., No. 88476, 2020 WL 856432 (Sup. Ct., Cattaraugus Cty. Feb. 21,

2020) ........................................................................................................................................... 23

United States v. Kubrick, 444 U.S. 111 (1979) ........................................................................................ 7

Waters of Saratoga Springs v. State of N.Y., 116 A.D.2d 875(3d Dep't 1986), aff'd 68 N.Y.2d 777

(1986) ............................................................................................................................................ 6

Werner v. Diocese of Rockville Ctr., 2020 N.Y. Misc. LEXIS 2003 (Sup. Ct., Nassau Cty. May 11,

2020) ........................................................................................................................................... 23

Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430 (1979) ................................ 6, 24, 29

White v. Cuomo, 181 A.D.3d 76 (3d Dep’t 2020) .................................................................................. 23

Wiley v. Roof, 641 So. 2d 66 (Fla. 1994) ................................................................................................ 20

Zumpano v. Quinn, 6 N.Y.3d 666 (2006), ....................................................................................... passim

Statutes

CPLR § 208(b). ......................................................................................................................................... 1

CPLR § 214-G .......................................................................................................................................... 1

CPLR § 3211 (a)(7) .............................................................................................................. 1, 3, 5, 25, 31

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CPLR § 3211 (b)..................................................................................................................................... 31

CPLR § 3211(a)(5) .......................................................................................................................... passim

CPLR 214-f............................................................................................................................................. 14

Constitutional Provisions

N.Y. Const., art. I, § 6 ............................................................................................................................... 9

Va. Const. art. IV, § 14 ........................................................................................................................... 25

Other

Revised Record of the Constitutional Convention of the State of New York at 465 (1938)…………..20

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Defendant Harvey Weinstein (“Weinstein”) respectfully submits this Memorandum of

Law in supports of its motion, pursuant to CPLR § 3211(a)(5) and (a)(7), to dismiss the Complaint,

dated December, 19, 2019 (“Complaint”), in its entirety, with prejudice.

PRELIMINARY STATEMENT

Plaintiff Kaja Sokola (“Sokola”) alleges that, on one day in September of 2002, when she

was a 16-year-old aspiring model, she was sexually abused by Weinstein at his apartment in New

York City. Weinstein categorically, and emphatically, denies these salacious allegations by

Sokola. Weinstein vehemently contends that Sakola’s allegation of being 16-years-old when she

met Weinstein is patently false, and that an indisputable timeline of events, corroborated by other

evidence, will refute her claims of abuse. However, the claims should be dismissed on arrival, as

the vehicle in which they have been brought, the New York Child Victims Act, is violative of the

due process rights afforded to Weinstein by the Constitution of the State of New York, and

undermines the integrity of this State’s judicial process.

The allegations of sexual abuse forming the instant action, nearly two decades old, have

been unconstitutionally revived, and unconstitutionally brought, pursuant to the New York Child

Victims Act, codified under CPLR § 214-G, (hereinafter “CVA”)1. The CVA is unconstitutional

because it impermissibly revives long-expired statutes of limitations in violation of a Defendant’s

due process rights under the New York State Constitution. The instant case highlights this

unconstitutionality. Nearly 18 years after the alleged wrongdoing, Weinstein is being asked to

defend a case with salacious verbal allegations made by Sokola against him, where there may be

diminished evidence available in his defense due to the passage of time, while already suffering

from a vilified public image. Beyond these accusations and denials, litigating this case is reduced

1 See also, 2019 amendment to CPLR § 208(b).

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to the ability of Weinstein and Sokola’s respective abilities to accurately recall, for example,

amongst other pertinent factual allegations raised in the Complaint, the details of alleged isolated

conversations and incidents that allegedly occurred in 2002. While, Weinstein denies that these

events, as vaguely alleged by Sokola to have occurred in 2002, even transpired. Any other evidence

that may well have been available to refute the allegations, other than what Weinstein intends to

present to nullify the claims made against him should the case proceed, during the actual

limitations period on these stale claims, may have long since become unavailable and/or

significantly diminished in the almost two decades that have elapsed since the alleged wrongdoing

is alleged to have occurred. This places Weinstein in a troubling situation, where his ability to

defend against allegations he vehemently denies is hindered due to the passage of time, and as

discussed herein, his due process rights effectively abrogated.

PROCEDURAL HISTORY

On December 19, 2019, Sokola filed the instant action against Weinstein, Robert

Weinstein, the Walt Disney Company, Disney Enterprises, Inc., Miramax Holding Corp., Miramax

Film NY LLC f/k/a Miramax Film Corp., and Doe Corp. 1-10 (collectively, “Co-Defendants”)

pursuant to the CVA, alleging in her Complaint, inter alia, that Weinstein sexually assaulted her

in 2002, when she was a 16-years-old. She further alleges that after the alleged sexual assault,

Weinstein continued pursuing her and subjected her to emotional abuse. This alleged conduct by

Weinstein, Sokola’s Complaint purports, caused her physical injury, emotional distress, economic

harm, and other damages. As to Weinstein, the Complaint asserts causes of action for Battery. See,

Sokola’s Complaint annexed hereto as EXHIBIT A.

On February 3, 2020, one of Weinstein’s Co-Defendants, Robert Weinstein (“R.

Weinstein”), filed a Notice of Removal (“Notice of Removal”) in this action that removed the

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action to the United States District Court of the Southern District of New York (“SDNY”). R.

Weinstein’s Notice of Removal is annexed hereto as EXHIBIT B.

On March 4, 2020, in the SDNY removal action for this case, and before any responsive

pleadings were interposed therein by Weinstein or his Co-Defendants, Sokola filed a Motion to

Remand this case back to the Supreme Court of the State of New York. Sokola’s SDNY Notice of

Motion to Remand is annexed hereto as EXHIBIT C.

Following motion practice on the remand issue, on July 2, 2020 Judge Liman of the SDNY

entered an Order granting Sokola’s Motion to Remand. Judge Liman’s Opinion and Order granting

the Motion to Remand is annexed hereto as EXHIBIT D.

Pursuant to the Administrative Order dated June 16, 2020, which was filed in the instant

action on June 18, 2020, Defendants’ response to Sokola’s Complaint is due on August 12, 2020.

Weinstein, in turn, files the within timely Motion to Dismiss pursuant to CPLR § 3211(a)(5) and

(a)(7).

STATEMENT OF FACTS

In her Complaint, filed December 19, 2019, Sokola alleges, inter alia, that, when she was

a 16-year-old aspiring model back in September of 2002, Weinstein sexually assaulted her at his

apartment after the two met at an event in Manhattan associated with her then-modeling agency.

EXHIBIT A ¶¶ 30-45. She claims that Weinstein “thereafter persisted in his pursuits against

Sokola” and “took every opportunity to make sure that she understood that he was the only person

who could help her become an actress.” Id. ¶¶ 49-50.

Sokola’s Complaint is devoid of salient facts and does not describe any of the “pursuits

against” her Weinstein undertook after the alleged incident at Weinstein’s apartment, nor does the

Complaint describe any of the circumstances surrounding those “pursuits against” or any one of

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the alleged “every opportunit[ies]” Weinstein took “to make sure she understood that he was the

only person who could help her become an actress.” Though her Complaint does not attempt to

specify or describe the substance and/or context of any communication she ever had with

Weinstein following the alleged abuse incident, Sokola mysteriously alleges that after the alleged

sexual abuse incident she “experienced fear and anxiety whenever she communicated with

[Weinstein].” Id. ¶ 50.

For the sexual assault that Sokola alleges she suffered in 2002, and for unspecified

communications she alleges that she had with Weinstein thereafter, Sokola initiated the instant

action pursuant to the CVA in the final days of 2019, seeking damages from Weinstein for a

Battery tort that she alleges was committed 18 years ago. Id. ¶¶ 99-102, pp. 22-3. Weinstein

adamantly and categorically denies these allegations. Sokola is also seeking damages from

Weinstein’s Co-Defendants for the tort of Negligence, alleging, inter alia, that the Co-Defendants

are liable to her for negligently failing to prevent and/or enabling Weinstein’s alleged tort. Id. ¶¶

103-112, pp. 22-3.

Included among the damages Sokola seeks in this action are: compensatory damages

representing consequential damages, lost wages and earnings, all other sums of money; damages

for mental pain and anguish, and severe emotional distress; and punitive and exemplary damages.

Id. pp. 22-3. Sokola ties her petition for damages to assertions, amongst others, that the tort she

alleges that Weinstein committed on a day 18 years ago has been the cause of emotional pain and

suffering she has felt for the entire 18 years since, and has also been the cause of her “long-term

depression, anorexia, and difficulty in maintaining healthy relationships with men” in the 18 years

since. Id. ¶¶ 2, 51. Sokola claims that, by allegedly committing the alleged tort, Weinstein acted

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with knowledge of or reckless disregard for the certainty that these alleged eighteen year-long

consequences for Sokola would eventuate. Id. ¶ 102.

On Sokola’s assertions that the damages she has suffered spans a period from 2002 through

present, she, like many other CVA plaintiffs, is now taking the opportunity she been

unconstitutionally granted by the CVA to seek a monetary reward that includes a windfall of

interest on compensatory damages that Due Process required her to pursue back when she was

able to do so within the long-expired Statute of Limitations period for this tort. Id. pp. 22-3. It is

respectfully submitted that this 18-year-old tort action filed by Sokola highlights the

unconstitutional nature of the CVA provisions on which it relies, and that Due Process requires

this action therefore be dismissed pursuant to CPLR 3211(a)(5) & (a)(7).

LEGAL STANDARD

Generally, in considering a motion to dismiss for failure to state a cause of action pursuant

to CPLR 3211(a)(7), a court must accept as true the facts alleged in the complaint. Corn v. Hargro

Fabrics, Inc., 91 N.Y.2d 362, 366 (1998). However, allegations that are bare legal conclusions or

are contradicted by documentary evidence are not entitled to such consideration. Maas v. Cornell

Univ., 94 N.Y.2d 87, 91 (1999); Attallah v. Millbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d

1026, 1028 (2d Dep’t 2019). Allegations lacking sufficiently pleaded facts should also be

disregarded. Dugway, Ltd. V. Fizzinoglia, 166 A.D.2d 836, 837 (3d Dep’t 1990); Elsky v. KM

Insurance Brokers, 139 A.D.2d 691, 691 (2d Dep’t 1998).

On a motion to dismiss claims as barred by applicable statutes of limitations pursuant to

CPLR. 3211(a)(5), a defendant bears the initial burden of demonstrating, prima facie, that the time

in which to sue has expired. See Benn v. Benn, 82 A.D.3d 548 (1st Dep't 2011); see also Siegel v.

Wank, 183 A.D.2d 158 (3d Dep't 1992). After the defendant’s initial burden is met, the burden

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then shifts to the plaintiff to aver evidentiary facts establishing that the case falls within an

exception to the Statute of Limitations, or that the statute of limitation was otherwise inapplicable.

See Waters of Saratoga Springs v. State of N.Y., 116 A.D.2d 875, 878 (3d Dep't 1986), aff'd 68

N.Y.2d 777 (1986); see also QK Healthcare, Inc. v. In Source Inc., 108 A.D.3d 56, 65 (2d Dep't

2013). Here, the statute of limitations, if not for the unconstitutional application of the CVA,

challenged herein, would have ran in a one (1) to five (5) year time period started after Sokola

turned eighteen (18) years old, who is now described in her Complaint as thirty-three (33) years

old and having been sixteen (16) years old in 2002 at the time she alleges Weinstein’s alleged

wrongdoing occurred.

LEGAL ARGUMENT

I. THE REVIVAL PROVISION OF THE NEW YORK CHILD VICTIMS ACT
VIOLATES THE DUE PROCESS CLAUSE OF THE NEW YORK STATE
CONSTITUTION.

A. Courts in the State of New York Have Long Held that Statutes of Limitations
Protect Both the Integrity of the Judicial Process and a Defendant’s Due Process
Rights.

The New York State Court of Appeals has explained “the primary purpose of the Bill of

Rights and the corresponding provisions of the State Constitution is to insure the individual,

particularly the unpopular individual a measure of protection against oppression by a majority.”

Westchester Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 444 (1979). Thus, this State’s

legal system relies on statutes of limitations to protect a fundamental right of repose that benefits

both potential defendants and society at large by ensuring that individual due process rights are

protected, and the courts can function properly. See, Jensen v. Gen. Elec. Co., 82 N.Y.2d 77, 87

(1993) (dismissing claims as time-barred; observing that the protection of plaintiffs’ ability to

timely sue and of defendants’ rights not to be “potentially liable in perpetuity. . . serves a

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substantial public policy that traditionally benefits all society by creating some measure of repose”)

(emphasis added); Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120, 124 (1986) (dismissing claims

as time-barred; noting that statutes of limitations protect “the repose of defendants and society”

against the threat of “open-ended claims”) (emphasis added). Likewise, the Supreme Court of the

United States has held that “although affording plaintiffs what the legislature deems a reasonable

time to present their claims, [statutes of limitations] protect defendants and the courts from having

to deal with cases in which the search for truth may be seriously impaired by the loss of evidence,

whether by death or disappearance of witnesses, fading memories, disappearance of documents,

or otherwise.” United States v. Kubrick, 444 U.S. 111, 117 (1979) (emphasis added).

Requiring the State’s legal system, already encumbered and overburdened, to adjudicate

antiquated cases, such as the nearly 18 year-old ones that form this action, impairs the due process

rights of defendants, and strains the ability of the judicial process to operate with integrity and

equity. This due process concern is especially compelling in cases, such as the instant action, where

time-barred claims are revived and when the key evidence is no longer available. As explained by

the Court of Appeals: “defendants are entitled to a fair opportunity to defend claims against them

before their ability to do so has deteriorated.” Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 435-

36 (1993) (courts are “reluctant to modify the law governing limitations, even when a party’s case

seems particularly compelling” in order to protect the rights of defendants); see also, Kubrick, 444

U.S. at 117 (“Statutes of limitations, which are found and approved in all systems of enlightened

jurisprudence . . . represent a pervasive legislative judgment that it is unjust to fail to put the

adversary on notice to defend within a specified period of time and that the right to be free of stale

claims in time comes to prevail over the right to prosecute them.”) (internal quotation marks and

citation omitted).

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B. The CVA Does Pass New York’s “Stringent” Test in Determining Whether a
Claim-Revival Statute is Constitutional.

The Constitutions of the United States and the State of New York contain provisions to

ensure that all are afforded due process of law, including when faced with the defending of

untimely claims. However, the Court of Appeals has explained that the New York Constitution

provides more “stringent” protections than federal law against legislative efforts to revive time-

barred claims. See, e.g., Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 514 (1989); see also, N.Y.

Const., art. I, § 6 (“No person shall be deprived of life, liberty or property without due process of

law.”).

Under the federal due process standard, “[c]laim-revival statutes generally pose no issue.”

Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 394 (2017).

Under this federal standard, a legislative body may revive a formerly time-barred claim, or modify

an applicable statute of limitations period, so long as the defendant did not acquire a vested right

to a “property interest” as a result of the passage of time. See, Chase Secs. Corp. v. Donaldson,

325 U.S. 304, 311-12 (1945) (citing Campbell v. Holt, 115 U.S. 620 (1885)).

However, New York law differs considerably from federal law on the issue of claim-

revival statutes; New York law regards “revival statutes” as an “extreme exercise of legislative

power….” Regina Metro. Co. LLC v. New York State Div. of House. & Cmty. Renewal, No. 1,

2020 N.Y. Slip Op. 02127, 2020 WL 1557900 at *14 (N.Y. April. 2, 2020) (quoting Hopkins v.

Lincoln Trust Co., 233 N.Y. 213, 215 (1922) (Cardozo, J.)); see also, Matter of World Trade Ctr.

Lower Manhattan Disaster Site Litig., 30 N.Y.3d at 394 (“…the development of [New York] law

on claim-revival statutes has differed from the development of the federal rule.”) Unlike the federal

system, “our state standard has not turned on this formal distinction between claim-revival statutes

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that intrude upon a ‘vested’ property interest and those that do not.” Matter of World Trade Ctr.

Lower Manhattan Disaster Site Litig., 30 N.Y.3d at 394. In contrast, the New York standard for

claim revival employs “a more functionalist approach,” and “weighs the defendant’s interests in

the availability of a statute of limitations defense with the need to correct an injustice.” Id. Thus,

New York law addresses the need to protect the defendant, where, such as in the instant matter,

antiquated claims forecloses defendants from the fundamental right to defend themselves, and will

degrade the integrity of the judicial process.

The New York Court of Appeals recently reaffirmed that “a claim-revival statute will

satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response

in order to remedy an injustice.” Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig.,

30 N.Y.3d at 400. Accordingly, prior cases in which courts have determined that a claim-revival

provision comported with the New York State Constitution’s Due Process Clause reflect that the

class of injustices warranting this extraordinary remedy is limited to those injustices of a nature

such that “plaintiff could not have brought an action in a timely manner.” Doe v. Hartford Roman

Catholic Diocese Corp., 317 Conn. 357, 433 n.58 (Conn. 2015) (emphasis added); see also,

Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989); Matter of McCann v. Walsh Constr. Co., 282

App. Div. 444 (3d Dep’t 1953), aff’d without op., 306 N.Y. 904 (1954); Gallewski v. Hentz & Co.,

301 N.Y 164 (1950); Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924).

For example, in Robinson, the wife of a deceased worker began collecting worker’s

compensation following her husband’s work-related death, as this was her exclusive legal remedy

at the time. More than two years later, the U.S. Supreme Court declared New York’s workers’

compensation law unconstitutional, which terminated the wife’s worker’s compensation benefit.

See, Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920). By that time, the wife’s wrongful

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death action was time-barred under New York law. See, Robinson, 238 N.Y. at 275. A claim by

the wife for her husband’s wrongful death was also not cognizable at any time during the applicable

limitations period, because, for that entire period, worker’s compensation was the exclusive

remedy available for the husband’s work-related death. The Legislature enacted a provision to

address this quagmire, creating a one-year period for plaintiffs to commence a negligence action,

even if it were otherwise time-barred, to seek compensation that was formerly available

exclusively under the then-defunct worker’s compensation law. Id. at 276-81. In other words,

because the spouses of deceased workers could not have brought a timely claim for wrongful death

based on a work-related injury prior to the U.S. Supreme Court’s ruling in Knickerbocker Ice, the

legislature revived such claims for a one-year period. See id. at 280-81.

In Gallewski, the Court of Appeals held that a statute enacted to retroactively toll the statute

of limitations for individuals who resided in Axis-occupied countries during World War II

comported with due process. The Court noted that “the citizens and residents of occupied territory

were, during such occupation, under a practical and total inability to commence action in the courts

of this State to protect and effectuate their rights.” Id. at 174-175 (emphasis added). Because these

plaintiffs, too, were effectively unable to assert timely claims during the applicable limitations

period, the Court in Gallewski concluded that the legislature’s retroactive tolling of the otherwise-

applicable limitations period comported with due process. Id. (“To permit the Statute of

Limitations to run against [plaintiffs’] claims during the continuance of such inability [to sue]

would not accord with elementary notions of justice and fairness.”) (emphasis added).

Furthermore, in Matter of McCann and Hymowitz, claims-revival provisions were held by

the Court of Appeals to comport with due process when they addressed claims that could not have

been timely asserted. Both cases presented claims by plaintiffs who were afflicted by latent

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diseases for which symptoms did not typically appear until after the applicable limitations period

expired. Matter of McCann v. Walsh Constr. Co., 282 App. Div. 444, 446 (3d Dep’t 1953), aff’d

without op., 306 N.Y. 904 (1954) (cassion disease is “of a slow-starting or insidious nature” and

“very often . . . more than twelve months elapse[s] after the contraction of the disease before its

presence [is] known or apparent”); Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 502-3 (1989) (the

exposure to the drug diethylstilbestrol (DES) by pregnant mothers causes a latent injury in utero

and “many claims [are] barred by the Statute of Limitations before the injury [is] discovered”). To

address this, the legislature changed the designation of when a claim accrued, so that the limitations

period did not start until the claimant became aware of the disease. At the same time, the legislature

Case Info

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Alexander M. Tisch Track Judge’s New Case

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Document Filed Date

August 12, 2020

Case Filing Date

December 19, 2019

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Parties

ANSARI, IMRAN H. Attorney for the Defendant
ARBEIT, BRYAN LOUIS Attorney for the Plaintiff
CHESLER, EVAN R Attorney for the Defendants
CHESLER, EVAN ROBERT Attorney for the Defendant
CHILD USA Non Party
Disney Enterprises, Inc. Defendant
Doe Corp. 1-10 Defendant
EARNHARDT, JOE WESLEY Attorney for the Defendant
EARNHARDT, JOE WESLEY Attorney for the Defendants
Harvey Weinstein Defendant
Kaja Sokola Plaintiff
MINTZER, KEVIN TODD Attorney for the Plaintiff
Miramax Film NY LLC f/k/a Miramax Film Corp. Defendant
Miramax Film NY LLC f/k/a Miramax Film Corp. Defendant
NASAR, ALICE ROSE Attorney
PUTNAM, MARVIN STANLEY Attorney for the Defendant
Robert Weinstein Defendant
STEIN, GARY Attorney for the Defendant
The Walt Disney Company Defendant
WIGDOR, DOUGLAS H Attorney for the Plaintiff

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Motion-Secondary: Kaja Sokola v. Harvey Weinstein, Robert Weinstein, The Walt Disney Company, Disney Enterprises, Inc., Miramax Holding Corp., Miramax Film Ny Llc f/k/a Miramax Film Corp., Doe Corp. 1-10

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