2. Statute of Limitations
To compute SOL, AND ANY OTHER TIME PERIOD IN THE CPLR,
exclude the day upon which the triggering event occurs and begin counting the next day. PRACTICAL EFFECT: last day for timely commencement is on an anniversary date
Outside limit of 10 years toll for infants/incapacity in 2 situations
(1) When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from date of accrual. ---NOTE: In medical malpractice cases, the continuous treatment toll and infancy toll are separate tolls = analyze both and pick the longer of the two (2) Claims of insane Ps, regardless of nature of cause of action, become time-barred after 10 years from date of accrual, when relying on toll for insanity.
what if P dies after SOL expires?
...
Borrowing Statute: If the cause of action arises outside of NY, which SOL applies?
1) If P was a non-resident of NY when the out-of-state claim arose, court will apply shorter SOL between that of NY and the other state 2) If P was a NY resident when the out-of-state claim arose, court will always apply NY SOL
plaintiff's claim asserting tort liability against municipality will be dismissed on the merits for failure to state a cause of action if P:
1) commences the action without prior timely compliance with the notice of claim prerequisite 2) fails to plead compliance with notice of claim requirement
6 Month Toll for dismissal does NOT apply to:
1) dismissal on the merits 2) dismissal was a voluntary discontinuance by P 3) dismissal based on P's neglect to prosecute if the neglect to prosecute consisted of a GENERAL PATTERN OF DELAY (but not if this was the only act of delay) 4) dismissal was for lack of personal jurisdiction (but yes for lack of subject matter jurisdiction)
When the legal disability ends (for infants and insane), how long does P have to sue?
1) if original SOL was 3 years or more, P gets whichever is longer: (a) usual SOL running from usual date of accrual (b) 3 years from the date that the legal disability ends (i.e. P turns 18 or becomes sane) 2) if original SOL was less than 3 years, P gets specified SOL measured from the date the disability ends (i.e. P turns 18 or becomes sane)
Products Liability SOL
1. Negligence: 3 year from date of P's injury against ALL D's in chain of distribution 2. Strict Products Liability: 3 year from date of P's injury against ALL D's in chain of distribution 3. Breach of Warranty: 4 years from when the particular D against whom warranty claim is asserted tendered delivery --->each D in chain "tenders delivery" when sells to next D in chain
actions to recover real property/redeem a mortgage
10 years
Actions by Crime victim SOL
10 yrs: against any CONVICTED D for a SERIOUS crime (e.g. violent felony) (DOA=date of conviction) -OR 3yrs after date of discovery of D's receipt of money or property from any source 7 yrs: against any CONVICTED D for any OTHER crime (DOA=date of conviction) 5 yrs: victim of rape-related crime -DOA = the later of: --(1) date of the criminal act --(2) termination of proceeding (even if acquitted)
Wrongful Death SOL
2 years from the date of death, but it must also be shown that decedent possessed a timely cause of action at the time of death a) only the duly appointed personal may maintain the claim b) the failure to appoint a personal representative in a timely fashion will not toll the running of the SOL c) infancy of the beneficiaries will not toll the SOL
Enforcement of judgments SOL
20 years from
SOL for Negligence, Strict Liability, Property Damage, Intentional Torts
3 years = Negligence, Strict Liability, Property Damage (conversion, replevin) 1 year = Intentional Torts
Contracts for Sales of Goods (UCC Article 2)
4 years from date of breach
Toxic substance and Exposure definitions/when applicable
A "toxic substance" is any inherently harmful toxin that has latent or slow-developing effects, e.g., DES, asbestos, insecticides, HIV-virus, leaking petroleum. "Exposure" is any sort of assimilation into one's body or property. A "latent" injury is any injury that is not immediately perceptible. NOTE: The toxic-substance discovery rule does not apply to claims of medical malpractice.
SOL = 20 years for
Action on a judgment
Statute of Limitations (definition)
An affirmative defense, based on the passage of time, to be raised by the defendant
Toll for dismissal (w/o prejudice???)
IF a NY action is timely commenced, but is 1) dismissed before trial, AND 2) at the time of dismissal the SOL has either expired or has less than 6 months remaining, RESULT: P gets 6 months from date of dismissal to re-file the same action and serve process on same D DOES NOT APPLY TO: 1) dismissal on the merits 2) dismissal was a voluntary discontinuance by P 3) dismissal based on P's neglect to prosecute if the neglect to prosecute consisted of a GENERAL PATTERN OF DELAY (but not if this was the only act of delay) 4) dismissal was for lack of personal jurisdiction (but yes for lack of subject matter jurisdiction)
Toll for Plaintiff's Infancy or Insanity (Legal Disability)
If P is infant or insane at time cause of action accrues, the S/L is tolled until the disability ends: a) until infant reaches age of 18 or b) until insanity clears up. (Insanity is defined as any mental disorder that causes an overall inability to function in society. To be "insane," P need not have gone through a formal judicial proceeding for the appointment of a guardian.) SEE CARD ON HOW LONG P HAS TO SUE ONCE DISABILITY ENDS
Survival Claim tolling
If plaintiff dies before the S/L expires, the estate representative gets whichever is longer: the time remaining on the applicable S/L running from the date of accrual, or 1 year from plaintiff's death
Toll for Death of potential defendant
If potential D dies AT ANY TIME before the S/L expires, 18 months are always added to the relevant limitations period (regardless of whether π needs extra time).
Municipal Tort SOL
In an action for personal injury or property damage against a government subdivision of the state — e.g., county, city, town, school district, or municipal hospital (hereinafter "municipal defendant") — the statute of limitations is 1 year 90 days from the date of the accident.
Municipal Tort SOL Notice of Claim preequisite
P must serve a notice of claim on the potential municipal defendant no later than 90 days from the date of the accident [PURPOSE = give municipality opportunity to settle] P cannot file claim in court before filing notice of claim --> will be dismissed for failure to state a cause of action (on the merits)
Equity actions (rescission, reformation, accounting) - SOL
SOL - 6 years
Exposure to Toxic substance definitions and SOL
SOL = 3 years DATE OF ACCRUAL = the earlier of either a) discovery of the injury (when P becomes aware symptoms) b) date that injury should have been discovered with reasonable diligence NOTE: does NOT apply to medical malpractice A "toxic substance" is any inherently harmful toxin that has latent or slow-developing effects, e.g., DES, asbestos, insecticides, HIV-virus, leaking petroleum. "Exposure" is any sort of assimilation into one's body or property. A "latent" injury is any injury that is not immediately perceptible.
Contracts Non-UCC - SOL
SOL = 6 years DOA = date of breach regardless of P's knowledge
Indemnity and contribution SOL
SOL of 6 years Date of accrual: actual payment of the judgment for which indemnity or contribution is sought
SOL for Professional Malpractice (for Learned Professions)
SOL: Action for financial loss has xclusive SOL of 3 years regardless of whether based on tort or contract DATE OF ACCRUAL: when the services are completed ----For architect or engineer, the 3-year period begins to run from completion of building; ----for accountant or attorney, from delivery of work product to client. BUT FOR BODILY INJURY = 3 yrs from date of injury
Toll for D's Absence
TOLL ONLY AVAILABLE IF: P does NOT have basis of personal jurisdiction against D such that process could be validly served on D outside of NY (i.e. long arm jurisdiction) 1) If Δ is NOT IN NY when cause of action accrues ----->SOL does not begin to run until Δ comes to NY. 2) If Δ is IN NY when cause of action accrues but thereafter LEAVES NY for at least a 4 month continuous period --------->then toll applies to entire period of absence
Purpose of "Borrowing Statute" and when applicable
The "borrowing statute" is intended to prevent forum-shopping by non-resident π's seeking a longer S/L in NY. Applies when cause of action arises outside of NY this means:
Learned Professions vs. Not
YES learned professions: engineers, accountants, attorneys NOT learned professions: insurance brokers, securities analysts, plumbers
Survival Claim
any cause of action π herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include all damages incurred by π prior to death, e.g., pain and suffering.
Wrongful Death
cause of action is a tort claim for the pecuniary (economic) damages of decedent's statutory distributees (e.g., surviving spouse, children). -Punitive damages are also recoverable, BUT NOT the emotional suffering of the distributees or the decedent's personal pain and suffering. ONLY A DULY APPOINTED PERSONAL REPRESENTATIVE may maintain the claim
Plaintiff's complaint asserting tort liability against municipality must
must plead compliance with the notice of claim requirement - otherwise will be dismissed on the merits for failure to state a cause of action
Two exceptions to medical malpractice SOL/date of accrual
exceptions are narrowly applied b/c of legislative purpose of protecting medical profession 1) CONTINUOUS TREATMENT RULE: if continuous treatment for exact same medical condition that gave rise to the malpractice, date of accrual = 2.5 yrs from end of continuous treatment 2) FOREIGN OBJECT RULE: if D left behind foreign object in P's body, P can get the longer of: -(a) 2.5 years from date of operation (reg med mal SOL) -(b) 1 year from date P discovered object or should have w/ reasonable diligence if that is longer than 2.5 -what is a foreign object: anything doctor did not intend to leave behind EXCEPT: a) chemical substance b) prosthetic device c) fixation device: an item that the doctor deliberately placed in the body with the intent that it remain to serve some continuing treatment function, (e.g., internal sutures, pacemaker, prophylactic diaphragm.)
If the 90 day period to serve a notice of claim on a municipal entity has expired, but the time remaining on the one year and 90 days statute of limitations has not expired, the plaintiff may:
make a motion requesting permission to serve a late notice of claim. The court has discretion to grant the motion if the municipal entity will not be prejudiced, as, for example, where it had actual knowledge of the facts within 90 days of the accident.
SOL and date of accrual for medical malpractice
period is 2.5 years (including for respondeat superior actions for vicarious liability) BUT if cause of action against hospital based on negligent hiring - that is considered ordinary negligence --> 3 years from date of injury to patient DATE OF ACCRUAL: begins to run from the date of the malpractice ----EXCEPTIONS: -----a) CONTINUOUS TREATMENT = from end of continuous treatment -----b) FOREIGN OBJECT RULE = from discovery or after The medical malpractice S/L applies to doctors, dentists, podiatrists, nurses and hospitals
If the last day for performing any procedural act, such as commencing an action or serving a paper, falls on a Saturday, Sunday or public holiday
plaintiff gets until the end of the next business day to perform the required act.
What date of accrual applies when doctor injects P with medicine or chemical substance
regular medical malpractice liability - 2.5 years from of injury (or continuous treatment) does NOT get foreign objects rule or toxic substance rule
act of commencement
the act of filing process - the papers used by the plainitff to commence action (summons with complaint or summons with notice)
to satisfy the SOL
the action must be commenced no later than the last day of the prescribed period of limitations.
After service of the notice of claim on the municipal entity, the plaintiff must
wait 30 days and then commence the action against the municipal entity.
Special procedures apply to personal injury actions against architects and engineers WHEN:
when action is brought more than 10 years after the building was completed: (1) π must serve a notice of claim on the architect or engineer at least 90 days before suit; (2) π may obtain pre-action discovery from the potential Δ during the 90-day waiting period; and (3) after suit is commenced, if Δ moves for summary judgment, the burden will be on π to make an immediate evidentiary showing that there is a "substantial basis" to believe that Δ's negligence was the proximate cause of the injuries.
When does the SOL begin to run?
when the cause of action accrues -USUALLY when the injury first occurs Generally, SOL is NOT measured is NOT measured from the date that plaintiff discovers the injury even if the Plaintiff was unaware of injury/breach at time it occurred (but there are exceptions)
