CVA/HTA Practice Newsletter - March 2026

Welcome to the third edition of our Child Victims Act/Human Trafficking & Assault (CVA/HTA) Practice's newsletter.

Greetings from the CVA/HTA sub-practice group! We've had a busy quarter and lots of information to share about legal developments and case results from across the country. First, we'd like to congratulate Portland Partners Francis Torrence and Meryl Hulteng for securing the first known defense verdict in the country on behalf of a hotel owner and operator in a human trafficking case (A.B. v. Interstate Management Company, LLC, 3:23-cv-00388, D. Or.). Second, best of luck to Atlanta Partner Cameron Mobley as he defends against an appeal in the U.S. Court of Appeals, Eleventh Circuit, after he secured summary judgment on behalf of a hotel in two trafficking cases in the Northern District of Georgia (A.G. v. Northbrook Industries, 1:20-cv-5231 and G.W. v. Northbrook Industries, 1:20-cv-5232). Last, we'd like to thank New York Partner Dean Pillarella for summaries of appellate developments on New York's Adult Survivors Act and Child Victims' Act.

Read on for more details on these developments.

Corey Shulman, Newsletter Editor

Cross-Office Team Obtains Defense Verdict for Hotel Client in Trafficking Lawsuit

Walnut Creek Partner Francis Torrence and Portland Associate Meryl Hulteng, assisted by paralegal Jordan Beswetherick, obtained a defense verdict for their hotel client in a sex trafficking liability case that was tried from December 1 through December 5, 2025 in the U.S. District Court of Oregon (Portland Division).
The jury deliberated for just over a day before delivering a unanimous defense verdict. It was only the second case to go to trial for hospitality (hotel) liability for sex trafficking under the Trafficking Victims Protection Reauthorization Act. The other case ended in a $40 million verdict for the plaintiff. The plaintiffs in this case were asking for $40 million by the end of trial, which was down from the $100 million they were asking for at the beginning of the trial.

Second Department Holds That Intimate Touching of Non-Sexual Body Parts Can Constitute Predicate Penal Law Offense for Commencement of ASA or CVA Action

By Dean Pillarella 

In Aguilar v. Wishner, 2025 NY Slip Op 07265 (2d Dep't 2025), New York's Appellate Division, Second Department, held that, under the circumstances, a doctor's alleged touching of the scantily clad plaintiff's waist and kidneys during an office visit sufficed to plead a predicate Penal Law offense for the commencement of a revival action under the Adult Survivors Act.
 
CPLR 214-g, the CVA revival statute, revived every claim or cause of action “suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age.” CPLR 214-j, the ASA revival statute, likewise revived every civil claim or cause of action “suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was eighteen years of age or older.” Contained within Penal Law (“PL”) Article 130, which concerns sex offenses, are the offenses forcible touching (PL § 130.52(1)) and sexual abuse in the third degree (PL § 130.55).
 
PL § 130.52(1) provides that a person is guilty of forcible touching when he/she intentionally, and for no legitimate purpose, “forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire.” PL § 130.55 provides that a person is guilty of sexual abuse in the third degree when he/she “subjects another person to sexual contact without the latter's consent.” PL § 130.00(3) defines “sexual contact” as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party,” to include “the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.”
 
The Aguilar plaintiff alleged that, in 2004, during an unsupervised doctor's appointment, the doctor had her remove her gown, turn around, stand on a stepstool. and bend over an examination table while wearing only underwear. The doctor was seated “two inches” from the plaintiff's buttocks and proceeded to place his hands on the plaintiff's uncovered waist while pressing his thumbs into her kidneys. Based upon her own limited medical school training, the plaintiff concluded that the doctor's “examination” was not the typical means of diagnosing the kidneys as a cause of back pain, which she had complained of. When the plaintiff glanced backwards, she saw the doctor looking “as if he was enjoying something.” The plaintiff immediately felt disgusted, put her gown back on, and left the room.
 
In December 2022, given the passage of the Adult Survivors Act, the plaintiff commenced a civil action against the doctor and institutional defendants, alleging the doctor's conduct constituted forcible touching and sexual abuse in the third degree. The defendants moved to dismiss for failure to state a cause of action, arguing the complaint, as supplemented by the plaintiff's testimony, pled neither offense because the back and kidneys are not “sexual or other intimate parts” by definition. The trial court agreed, granting the defendants' motions to dismiss.
 
On appeal, the Second Department reversed and reinstated the complaint. Citing New York's Appellate Division, First Department, and various trial courts, the panel reasoned that PL §§ 130.52(1) and 130.55 “apply not only to the nonconsensual touching of parts of the body that are unquestionably sexual, intimate, or erogenous but also to other parts of the body contacted in an intimate way or in a manner that gratifies the actor's sexual desire.” Aguilar at *4. For while “[t]he touching of nonsexual body parts, like the feet and neck, standing alone, may not qualify as ‘sexual contact,'” this is not so where “the touching is accompanied by circumstances that elevate the conduct to that of a nonconsensual act of intimacy or that involve the sexual gratification of the actor.” Ibid. Thus, “the broader nature, manner, and circumstances of a touching of the body should be considered in determining whether such conduct constitutes a Penal Law article 130 predicate to commence an action pursuant to the ASA or, for that matter, pursuant to the CVA.” Ibid. Upon consideration of these factors, the panel held that the complaint sufficed to plead a predicate Penal Law offense, as required to trigger the ASA.

 
Aguilar illustrates that, in AVA or CVA cases alleging touching, “the facts … should not be viewed two dimensionally as solely involving the part of [the] body that was contacted.” Ibid. “The three-dimensional context of the alleged nature, facts, and circumstances of the touching is also relevant,” for “[i]ntimacy, after all, is a function not just of anatomy but also of behavior.” Ibid.

First Department Rejects As-Applied Constitutional Challenge to CPLR 214-g Under Vested Rights Doctrine

By Dean Pillarella

In M.T. v. Yeshiva Univ., 2026 NY Slip Op 00218 (1st Dep't 2026), New York's Appellate Division, First Department, held that the defendants' federal final judgments, obtained on statute of limitations and res judicata grounds prior to the CVA's enactment, did not confer constitutionally protected property rights. As such, the final judgments were no bar to the revival and recommencement of the plaintiffs' claims under CPLR 214-g, the CVA revival statute.

The M.T. plaintiffs alleged to have been sexually abused at the defendants' school from the 1950s through 1986. In 2013, the plaintiffs commenced an action against the defendants in the Southern District of New York, asserting various state and federal causes of action. The district court dismissed the action as untimely, and the Second Circuit affirmed. Notably, the dismissal was on the merits, and thus with prejudice, pursuant to Federal Rules of Civil Procedure 41(b). In 2015, the plaintiffs brought a second action against the defendants in Supreme Court, New York County, asserting essentially the same facts and causes of action. Upon removal to the Southern District of New York, the district court dismissed the action on res judicata grounds, given the dismissal of the prior action, and the Second Circuit affirmed.

In 2019, shortly after the commencement of the Child Victims Act, which revived previously time-barred claims arising from child sex abuse, the plaintiffs (along with an additional 14 plaintiffs) commenced a third action against the defendants in the Supreme Court, New York County.

The defendants moved to dismiss the action, raising an as-applied constitutional challenge to CPLR 214-g under the vested rights doctrine, which, in pertinent part, provides that certain final judgments give rise to vested property rights protected by the Due Process Clause. Applying the doctrine, the defendants argued that the federal final judgments, which were dismissals on the merits, gave rise to vested property rights which could not be abrogated by the CVA without violating the Due Process and Supremacy Clauses. The defendants stressed that they were not asserting a property right in a statute of limitations, which cannot confer property rights, but, rather, the judgments themselves. The Supreme Court denied the motion to dismiss. The First Department affirmed, emphasizing on M.T.'s first page that CPLR 214-g “expressly provides that ‘dismissal of a previous action, ordered before the effective date of this section, on grounds that such previous action was time barred ... shall not be grounds for dismissal of a revival action pursuant to this section.'” M.T. at *1.

Overall, the First Department found that defendants' arguments “misconstrued the doctrine of vested rights.” M.T. at *10. For “[w]hile a judgment is certainly the vehicle for vesting private property rights, it is not the property right by and of itself.” Ibid. The panel distinguished McCullough v. Virginia, 172 U.S. 102 (1898), the seminal case in the field, as involving not just a judgment but also a “separate right (a tax refund) associated with the judgment, which became inviolable once vested by a judgment.” Ibid. In contrast, the panel reasoned, the defendants' judgments involved no separate right or “property right under New York law,” such as “title to real or personal property.” Id. at *11. Rather, their only “value [wa]s based on ‘hope of avoiding litigation,' which is not a property interest.” Id. at *11-12. Absent as much, the panel held that the judgments, by themselves, conferred no property right, rendering the Due Process Clause inapplicable. With respect to the Supremacy Clause, the panel similarly held, “The CVA does not conflict with the Due Process Clause of the Fourteenth Amendment because the federal judgments did not vest defendants with a constitutionally protected property right.” Id. at *14. Moreover, “the CVA, a New York revival statute enacted by the New York legislature governing claims brought in New York courts, [does not] conflict with federal law.” Ibid.

While the Appellate Division has consistently rejected facial due process challenges to CPLR 214-g, M.T. is one of the first Appellate Division decisions to reject an as-applied challenge. Whether other potential as-applied challenges will be succeed remains to be seen.

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