In Engelman v. Rofe, 2021 NY Slip Op 01321 (NY App. Div. 1st Dept. March 4, 2021), the New York Appellate Division, First Department, held that the seven-year statute of limitations codified in the “Victims of Gender-Motivated Violence Protection Law” (VGM) – which is codified as Chapter 11 of the New York City Administrative Code, §§ 10-1101 – 10-1107 and (in sum) creates a civil cause of action available to “any person claiming to be injured by an individual who commits a crime of violence motivated by gender” – was not preempted by the one-year statute of limitations for claims of assault, per New York Civil Practice Law and Rules § 215(3).
The facts, briefly:
The original summons and complaint in this action was dated March 6, 2018. In an amended complaint dated April 30, 2018, all 11 plaintiffs (all woman) alleged that they had been subjected to sexual abuse while they attended voice-over coaching sessions with defendant PDR. Defendant Peter Rofe was the voice-over coach and an owner or agent or employee of PDR. The amended complaint alleged that on multiple dates between the summer of 2011 and July 2016, Rofe made unwanted sexual advances toward plaintiffs, which included forcibly kissing some of the women and touching their breasts, buttocks and groins, and forcing some to touch his penis or buttocks.
The lower court agreed with defendants that the VGM claim was untimely, since its seven-year statute of limitations was preempted by state law, and granted defendants’ motion to dismiss.
In determining that the NYC statute’s statute of limitations governed here, the court explained:
VGM provides that a claim may be commenced within seven years after the alleged crime of violence motivated by gender occurred (Administrative Code § 10-1105[a]). In contrast, CPLR 215(3) provides that an action to recover damages for assault must be commenced within one year. There appears to be no appellate precedent addressing whether the VGM’s seven-year statute of limitations is preempted by CPLR 215(3), although Cordero v Epstein (22 Misc 3d 161[*3], 168-169 [Sup Ct, NY County 2008]), supports defendant’s position. We conclude that plaintiffs’ claim is in the nature of a civil rights cause of action and therefore CPLR 215(5) is inapplicable.
Pursuant to New York’s “home rule” provision, local governments have broad policing power to enact legislation concerning the health, safety and welfare of their residents, “provided local governments refrain from adopting laws that are inconsistent with the Constitution or state statutes” (Patrolmen’s Benevolent Assn. of the City of N.Y., Inc. v City of New York, 142 AD3d 53, 58 [1st Dept 2016], appeal dismissed 28 NY3d 978 , citing Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96 ; see DJL Rest. Corp. v City of New York, 96 NY2d 91, 95 ). State law may preempt local law” in two ways (Patrolmen’s Benevolent Assn. of the City of N.Y., Inc., 142 AD3d at 58). A local law is preempted if the State has evidenced an intent to occupy an entire field through a pervasive scheme (field preemption) (id. at 58-61) (which defendants argue here) or “where local laws prohibit what would be permissible under State law, or impose prerequisite additional restrictions on rights under State law, so as to inhibit the operation of the State’s general laws” (conflict preemption) (Zakrzewska v New School, 14 NY3d 469, 480 ; see also Center for Independence of the Disabled v Metropolitan Transp. Auth., 184 AD3d 197, 202 [1st Dept 2020]).
Contrary to defendants’ argument, New York State has not evinced an intent to occupy the field with respect to the statute of limitations in this matter.
The VGM’s construct is consistent with the City’s “broad policing power” to enact legislation to protect its residents from discrimination, including gender-related violence (see also Phillips v City of New York, 66 AD3d 170, 186 [1st Dept 2009] [“City Council had the authority to create a private right of action [under the City HRL], even one that went beyond the remedies granted by the State HRL,” citing Bracker v Cohen, 204 AD2d 115 [1st Dept 1994]). Moreover, “the State has not preempted local anti-discrimination laws of general application” (Center for Independence of the Disabled, 184 AD3d at 202; see also New York State Club Assn. v City of New York, 69 NY2d 211, 218  [“the State has not preempted the field of antidiscrimination legislation by enacting the human rights provisions of the Executive Law (§ 290 et seq.)”], affd 487 US 1 ).
Based on the foregoing, we find that the legislative intent of the VGM was to create a civil rights remedy or cause of action such as in VAWA, rather than to extend the statute of limitations for a particular class of assaults. Since the nature of the claim is for a civil rights violation (providing a remedy for those subjected to violence because of their gender), the seven-year limitations period provided in the Administrative Code is not preempted by the CPLR statute of limitations for assault claims.
The court also held that the allegations in the amended complaint were gender-based (in that those allegations “follow the language of the VGM”). Since the claim was made within the applicable seven-year statute of limitations period, the court reinstated that cause of action.