Lawyers Manual - Unified Court System

300 Betty Levinson
potentially thorny problems of comparative negligence and “assuming the risk.”
If the plaintiff already has a treating mental health provider, it is important to
ascertain whether that individual will be an effective witness. Many mental
health providers, particularly older practitioners steeped in the lore of traditional
psychoanalytical theory, maintain outdated victim-blaming views about
domestic violence. If this is the case, a change in therapist may be necessary, as
well as the hiring of a forensic expert.
Statutes of Limitations
The short statute of limitations for intentional torts, including assault, poses
substantial and often insurmountable problems for battered women. Under the
CPLR, an action for an intentional tort must be brought within one year of the
injury. 16 Often, by the time a battered woman leaves her abuser, she has suffered
years of abuse and the statute of limitations for many of her injuries has already
passed. Even when she does manage to free herself from her abuser within the
statute of limitations, she is likely to need time to build a stable life and to
overcome the effects of trauma before she can think about starting a lawsuit.
Some battered women may be able to use various tolling provisions to
avoid the harsh effects of short statute of limitations. If a criminal action has
been brought against an abuser for the actions that gave rise to the tort, the
statute of limitations is tolled and the victim has one year from the time the
criminal case is concluded to file her tort claim. 17 The statute of limitations is
also tolled for insanity18 which the Court of Appeals has defined broadly as “an
overall inability to function in society” 19 and has said may include a “temporary
mental affliction” arising from the injuries that give rise to the lawsuit. 20 In
Nussbaum v Steinberg, a brutally battered woman successfully argued that
injuries inflicted by her abuser rendered her sufficiently incapacitated to toll the
statute of limitation under the insanity exceptions for intentional torts. 21
A battered woman might also argue that the violence to which she was
subjected was a continuing course of conduct that allows her to sue for an
extended history of abuse as long as the last incident is within the statute of
limitations. Domestic Violence and Tort Remedies 271. Courts in other states
have found that domestic violence is a continuing course of conduct and
allowed suits that would otherwise have been barred. 22 New York courts,
however, have yet to adopt this theory in domestic violence cases, and one trial
court explicitly rejected it on the facts before it. 23