Statute of Limitations

What is the S/L for wrongful death?

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, i.e., π 's underlying personal injury claim must still be timely on date of death.

Assume a car driven by Billy Joel negligently smashes into Mayor DiBlasio's mansion on June 1, 2014. The last day for timely commencement of DiBlasio's action against Billy for damages for personal injury and/or property damages would be:

Last timely date is June 1, 2017. 3 year S/L. Commence the action by filing process not later than 3 years of June 1, 2014. Always anniversary date of the injury. Count includes weekends and holidays.

Assume Forrest serves a notice of claim on the City on October 1, 2013. The City does not offer a settlement. Forrest now wants to sue the City. What would be the last timely date for commencement of his action?

Last timely date is November 30, 2014.

What is the general concept of a statute of limitation?

An affirmative defense, based on the passage of time, to be raised by the Δ. Tip: Pay attention to dates in essay questions.

When does the S/L for professional malpractice begin to run for architects/engineers, accountant/attorney?

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.

What is the relevance of date of plaintiff's injury discovery in medical malpractice cases for purposes of S/L?

Generally irrelevant.

What is the 6 month grace period for S/L?

If a NY action is timely commenced, but is thereafter dismissed before trial, AND at the time of dismissal the S/L has either expired or has less than 6 months remaining, π gets 6 months from date of dismissal to re-file the same action and serve process on same Δ.

What is the rule for infants or insane plaintiff in regards to S/L?

Infants (under 18) or insane πs may sue within regular S/L through a competent adult representative, but they also get the benefit of a toll: If π is infant or insane at time cause of action accrues, the S/L is tolled until the disability ends, i.e., until infant reaches age of 18 or until insanity clears up. (Insanity is defined as any mental disorder that causes an overall inability to function in society. To be "insane," π need not have gone through a formal judicial proceeding for the appointment of a guardian.)

Assume Dr. Evil, a doctor employed by Mercy Hospital, bungles a hemorrhoid operation on Austin on June 1, 2012. Austin does not discover the malpractice until September 1, 2014. But if the action against Mercy Hospital is based on the theory that the hospital was independently negligent when it hired Dr. Evil because it should have known that he was incompetent, the last timely date for commencement would be?

June 1, 2015. We are asserting a different type of claim.

Assume auto accident on June 1, 2010, in which Lady Gaga's negligence caused Papa Razzi's eventual death on May 1, 2013. The last date for timely commencement of an action for Papa's pain and suffering is?

May 1, 2014. This is a survival claim. At the time he died, the personal injury claim was still timely. One year extension from the date of death.

Assume auto accident on June 1, 2010, in which Lady Gaga's negligence caused Papa Razzi's eventual death on May 1, 2013. The last date for timely commencement of an action for Papa's wrongful death is?

May 1, 2015. Two years from the date of death.

Assume 12-year-old Harry was assaulted by an evil Wizard. When he reaches his 18th birthday, Harry has?

One year from 18th birthday.

On September 1, 2013, Forrest Gump sat down on a park bench in the City of Rome, NY, to eat some chocolates. The bench collapsed, causing personal injury to Forrest. What must Forrest do before he may sue the City of Rome for damages based on negligent maintenance?

Serve a notice of claim on city of Rome no later than 90 days from September 1, 2013. Last timely date would be November 30, 2013. Failure to allege and prove a notice of claim is a failure to state a cause of action. NOTE: After service of the notice of claim on the municipal defendant, the plaintiff must wait 30 days and then commence the action against the municipal defendant. The complaint must plead compliance with the notice of claim requirement.

What is the exception to the tolling for defendant's absence?

Toll for absence is not available if P has a basis of personal jurisdiction over the defendant such that process could be validly served outside NY. Example: Δ is visiting NY from his home state. While here, Δ assaults π and then Δ returns to his home state where he remains. π gets no toll based on Δ's absence because there would be long-arm jurisdiction over Δ (commission of tortious act within NY). There is no need for the absence toll if π can get valid personal jurisdiction over Δ even though Δ is outside NY. NOTE: The exception usually swallows the rule and a plaintiff is rarely entitled to an absence toll.

What is not a foreign object?

The following three things are NOT foreign objects (thus, no discovery rule): 1. Chemical substance (e.g., medicine, steroids) 2. Prosthetic device (e.g., plastic hip joint) 3. 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.)

What are the three [possible causes of action in products liability?

When a defective product (A/K/A "widget") causes personal injuries, the π has three possible causes of action (negligence, strict products liability or breach of warranty) which, as a matter of pleading, can all be asserted in the same complaint.

What is the S/L for medical malpractice and who does it apply to?

The medical malpractice S/L applies to doctors, dentists, podiatrists, nurses and hospitals whose conduct breaches a duty of professional medical care. The period is two and a half years, and the date of accrual (S/L begins to run) is from the date of the malpractice.

Assume a breach-of-contract claim accrues in 2010 in favor of 16-year-old Harry Potter. When he reaches 18 in 2012, how much time does he have within which to sue?

Until 2016 because he has the benefit of original S/L.

When does S/L begin to run?

When the cause of action accrues. Usually means date when injury first occurs

Assume a timely action is dismissed from a federal district court in NY. If S/L has expired in the meantime, will π get 6 months to start over again in a NY state court if the dismissal was due to lack of diversity of citizenship?

Yes, this is a defect in subject matter jurisdiction. Will get six months in state court.

What are some examples of statutes of limitations?

1. In a personal injury or property damage action (3-year S/L), the cause of action accrues on the date of the injury; 2. In a breach of contract action (6-year S/L), the cause of action accrues on the date of the breach.

What are the 4 types of prior dismissals as to which the 6 month grace period is not applicable?

1. Dismissal on the merits 2. Voluntary discontinuance by the plaintiff, 3. Dismissal was based on plaintiff's neglect to prosecute. General pattern of delay. Has to be a dismissal for general pattern of delay. Not applicable to one or two instances where there is a delay. 4. Dismissal based on lack of personal jurisdiction. (improper service of process, lack of basis jurisdiction, lack of form of summons). NOTE: A dismissal for lack of subject matter jurisdiction is entitled to the six month extension

When a legal disability ends, how long does π have to sue?

1. If original S/L was 3 years or more, plaintiff gets whichever is longer: EITHER: a. The usual statute of limitation period running from the usual date of accrual or b. Three years from the date the legal disability ends. 2. If original S/L was less than 3 years, when disability ends, plaintiff gets specified statutory period.

Assume a doctor injects some medicine into Joe on May 1, 2008. Liver problems, traceable to the medicine, are first discovered by Joe on July 1, 2013, and could not have been reasonably discovered prior to that time. The last timely date for Joe's action in negligence and/or strict products liability against the manufacturer of the medicine would be? The last timely date for Joe's action in medical malpractice against the doctor would be?

1. July 1, 2016. This is a toxic substance exposure case. 2. November 1, 2010

What is the distinction between a survival claim and a wrongful death claim?

1. Survival claim is 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. 2. Wrongful death cause of action is a tort claim for the pecuniary (economic) damages (e.g., lost income) 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. The party who sues on behalf of the decedent's estate as to either type of claim is the executor (if the decedent died with a will) or administrator (if the decedent died without a will). The wrongful death action and survival claim are often asserted in one action.

What are the two situations in which there is an outside limit of 10 years for commencement of action?

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. Assume 3-year-old infant is injured by medical malpractice on January 10, 2004. Claim against doctor becomes time-barred after January 10, 2014. 2. Claims of insane πs, regardless of nature of cause of action, become time-barred after 10 years from date of accrual, when relying on toll for insanity.

Assume Manufacturer sold a scooter to Wholesaler in 2007, Wholesaler sold it to Retailer in 2008, Retailer sold it to Consumer in 2009, and Consumer suffered personal injuries in 2012 as a result of an alleged defect in the scooter. Consumer's breach of warranty claims expire against manufacturer?

2011

Assume Manufacturer sold a scooter to Wholesaler in 2007, Wholesaler sold it to Retailer in 2008, Retailer sold it to Consumer in 2009, and Consumer suffered personal injuries in 2012 as a result of an alleged defect in the scooter. Consumer's breach of warranty claims expire against wholesaler?

2012

Assume Manufacturer sold a scooter to Wholesaler in 2007, Wholesaler sold it to Retailer in 2008, Retailer sold it to Consumer in 2009, and Consumer suffered personal injuries in 2012 as a result of an alleged defect in the scooter. Consumer's breach of warranty claims expire against retailer?

2013

Assume an insurance broker, in 2008, failed to procure adequate insurance to cover the losses caused by a potential collapse of the Brady building. The last timely date for a breach-of-contract action against the insurance broker is?

2014. An insurance broker's failure to properly perform is not professional malpractice because a broker is not a member of a learned profession. You can allege ordinary breach of contract.

Assume a breach-of-contract claim accrues in 2004 in favor of 10-year-old Harry Potter. When he reaches 18 in 2012, how much time does he have within which to sue?

2015 because it is longer than S/L.

Assume Manufacturer sold a scooter to Wholesaler in 2007, Wholesaler sold it to Retailer in 2008, Retailer sold it to Consumer in 2009, and Consumer suffered personal injuries in 2012 as a result of an alleged defect in the scooter. Consumer's negligence and strict products liability claims will expire as against all Δs after:

2015. 3 years from the date of bodily injury.

If a building that was completed in 1990 collapses in 2014 and causes personal injuries, what is the last year in which the injured persons may sue the architect?

2017. Here we are talking about bodily injury. Injured person can sue the responsible tortfeasor up to three years up to the date of that injury, regardless of the date of completion.

What is the S/L as to Strict products liability and when does it begin to run?

3 years from date of plaintiff's injury as against all defendants in the chain of distribution.

What is the S/L as to negligence and when does it begin to run?

3 years from date of plaintiff's injury as against all defendants in the chain of distribution.

What is the S/L for indemnity and contribution claims?

6 years running from the date of actual payment of the judgment for which indemnity or contribution is sought.

What is a foreign object?

A "foreign object" is something the doctor did not intend to leave behind, e.g., temporary surgical clamps, sponges, scalpels.

What is a toxic substance?

A "toxic substance" is any inherently harmful toxin that has latent or slowdeveloping 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.

Assume Letterman (π of CT) has auto collision in FL with Regis (Δ of NY). Assume FL's S/L is 2 years. If Letterman sues Regis in NY, will the court apply the S/L of NY or that of FL?

A. If π was a non-resident of NY when the out-of-state claim arose 1. NY court will apply S/L of state where claim arose if the other state's S/L is shorter than NY. For Letterman, we will apply the two year period. 2. NY court will apply its own S/L if: NY's period is shorter. B. If π was a NY resident when the out-of-state claim arose: NY will always apply NY S/L regardless of whether period is longer or shorter.

What is the separate notice of claim pre-requisite for tort actions against a municipal defendant?

As a condition precedent to a tort action against a municipal defendant, plaintiff must serve a notice of claim on the potential municipal defendant no later than ninety days from the date of the accident. (Service of the notice can be made on the municipal defendant or on the N.Y. Secretary of State, who then notifies the municipality.) Service of the notice of claim is not commencement of the action. The notice of claim simply gives the potential municipal defendant advance warning of the potential lawsuit to enable the municipality to engage in early investigation and possible settlement without the need for litigation. If the plaintiff commences the action without prior timely compliance with the notice of claim prerequisite, the municipal defendant is entitled to have the action dismissed on the ground of failure to state a cause of action and is a defense on the merits.

What is an example of the six month grace period?

Assume a father commences a timely action in the name of his deceased child but the father failed to obtain the necessary letters of administration appointing him representative of the estate. The action is therefore dismissed due to π's lack of capacity. At time of dismissal, S/L has expired. Within 6 months of dismissal, π can cure the capacity defect (obtain proper letters) and sue again.

Assume Dr. Seuss commits medical malpractice on three-year-old Bartholomew on January 10, 2000, and continued to treat him for the same condition until January 10, 2012. Up to what date is Bart's cause of action timely?

Bartholomew's action is timely up through July 10, 2014. (2½ years from end of continuous treatment.) Under the infancy toll, the action expired in January 2010. But the continuous treatment toll operates independently to give any eligible patient, including an infant, up to 2½ years from termination of the treatment.

What are the two exceptions to the usual medical malpractice rule of accrual?

Both are narrowly applied 1. Continuous Treatment Rule: If a physician continues to treat the patient, after an operation, for the exact same medical condition that gave rise to the malpractice, P gets two and a half years from the end of the continuous treatment for the condition that gave rise to the malpractice. We do not want to destroy the doctor patient relationship. 2. Foreign object rule: If the physician was responsible for introducing a foreign object into the patient's body and then leaves it behind, π gets whichever is longer: 1. Two and a half years from the operation or 2. One year from the date P discovers the presence of the object or should have discovered the object with reasonable negligence.

Who falls under the S/L for claim against non-medical professional malpractice?

Claims for economic injury by clients against architects, engineers, accountants, attorneys, i.e., members of a learned profession. "Learned profession" (specialized academic degree, licensure, code of ethics) does not include insurance brokers, securities analysts, plumbers, etc.

What is the S/L for a cause of action for non-medical professional malpractice?

Client's cause of action for malpractice against a non-medical professional for financial loss has an exclusive S/L of 3 years. The 3-year period applies regardless of whether the claim is based on tort or breach of contract.

As to all three exclusions from the definition of foreign object, the 2 ½-year period runs not from the day of discovery, but from?

Date of doctor's malpractice. Date doctor placed the chemical or medical device.

Assume Dr. Evil, a doctor employed by Mercy Hospital, bungles a hemorrhoid operation on Austin on June 1, 2012. Austin does not discover the malpractice until September 1, 2014. The last timely date for commencement of Austin's action against Dr. Evil is:

December 1, 2014. Does not run from the date malpractice was discovered.

Assume Dr. Evil, a doctor employed by Mercy Hospital, bungles a hemorrhoid operation on Austin on June 1, 2012. Austin does not discover the malpractice until September 1, 2014. The last timely date for commencement of Austin's action against Mercy Hospital on a theory of respondent superior (vicarious liability) would be?

December 1, 2014. When suit is based on vicarious liability, you use the same 2 and a half year period.

Assume a timely action is dismissed from a federal district court in NY. If S/L has expired in the meantime, will π get 6 months to start over again in a NY state court: If the dismissal was due to a defect in the form of the summons? Or due to improper service of process? Or due to out-of-state service in a case where long-arm jurisdiction was lacking?

Defect in personal jurisdiction so no six month extension.

What is the S/L for survival claim?

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 usual date of accrual, or 1 year from plaintiff's death.

What is the S/L as to breach of warranty and when does it begin to run?

Governed by U.C.C. and there is a four year statute of limitation. Includes breach of warranty. Four year period begins to run when the particular defendant against whom claim is asserted made its delivery. You got to look at each defendant separately.

What is the rule if defendant dies any time before the S/L expires?

If potential Δ 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). E.g., if Gaga dropped dead 3 weeks after the June 1, 2010 accident, Papa would have until December 1, 2014 to commence a negligence action against Gaga's estate. This is three years from 2010 and then eighteen months are added. D died w/ S/L

What happens if the plaintiff has not served the notice of claim within ninety days but the S/L has not expired?

If the 90 day period to serve a notice of claim on a municipal defendant has expired, but the time remaining on the one year and 90 days statute of limitations has not expired, the plaintiff can make a motion requesting permission to serve a late notice of claim. The court has discretion to grant the motion if the municipal defendant will not be prejudiced, as, for example, where it had actual knowledge of the facts within 90 days of the accident.

What is the borrowing statute?

If the cause of action arises outside of NY, a choice of law problem is presented if the S/L of the other state is different from that of NY. The "borrowing statute" is intended to prevent forum-shopping by non-resident π's seeking a longer S/L in NY.

What are the rules for the last day if it falls on a weekend or public holiday?

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 (hereinafter "π") gets until the end of the next business day to perform the required act.

What do you do whenever multiple tolls apply?

If they apply to the same set of fact, always give plaintiff the benefit of whatever benefits him the most.

What is the four month standard for tolling for defendant's absence?

If Δ is in NY when cause of action accrues (e.g., B in the prior example is in NY but is supposed to be in TX performing the contract), and Δ thereafter leaves NY and is continuously absent for at least 4 months, then toll applies to entire period of absence. S/L stops running while Δ is absent from NY and re-starts when Δ returns to NY.

What is the toll for defendant's absence?

If Δ is not in NY when cause of action accrues, S/L does not begin to run until Δ comes to NY. Example: In TX, A (of NY) hires B (of TX) to perform a contract in TX. B breaches the contract in TX in 2010. B comes to NY in 2015. SIL is tolled until 2015. A gets 6 years from 2015.

What is the S/L for a personal injury action against municipal defendant?

In an action for personal injury (including medical malpractice) or property damage against a municipal defendant, the statute of limitations is one years and ninety days from the date of the accident. This supersedes all other tort S/Ls.

What is the caveat for the outside limitation on medical malpractice cases relying on infancy toll?

In medical malpractice cases, the continuous treatment toll and infancy toll are separate tolls. Do not add the tolls together when computing the statute of limitations. If both tolls are applicable, run each toll separately and determine if the action is timely under either toll.

Assume Consumer is injured by a product in 2005. Consumer gets a judgment against Retailer that is paid in full on May 1, 2013. Retailer's claim for indemnity or contribution against Wholesaler and/or Manufacturer would be timely through:

May 1, 2019.

Assume that Dr. Evil failed to detect the presence of a tumor in Austin's body during the operation, and sews him back up with the tumor left behind. Austin discovers the tumor three years later. Will the foreign object exception apply?

No, a tumor is not a foreign object. The doctor was not responsible for introducing tumor into body. Simply failed to detect it. Failure to detect a growth or something that is already there does not make it a foreign object. The action must be commenced within two and one half years from the failure to discover the tumor. This is essentially a misdiagnosis.

Will the continuous treatment rule apply if Dr. Evil continues to treat Austin for the next two years for ingrown toenails?

No, the continuous treatment must relate to the exact same medical condition that gave rise to the malpractice.

Assume architect Mike Brady negligently designs a building which is completed in 2008. In 2012, the building collapses. Would the owner's suit against Brady for the cost of restoring the building, alleging breach of contract for negligent performance of the contract, be timely if brought in 2013?

No, this is a claim for non-medical professional malpractice. Period began to run in 2008.

What does municipal tort liability refer to?

Not to claims against the state of NY, but to claims against government subdivisions: county, city, town, school district, or municipal hospital (hereinafter "municipal defendant")

Any person who suffers bodily injury as a result of a non-medical professional's malpractice has a 3-year S/L running from?

The date of the bodily injury, regardless of the date of completion of the work.

What is the S/L not measured from?

The date that the plaintiff discovers the injury. NY does not follow a date of discovery rule. Even if P is unaware that he has been injured. We go by the date of injury.

This S/L begins to run when the services (professional malpractice) are completed, regardless of?

The plaintiff's lack of awareness

What is the S/L for negligently hiring or retaining a medical staff member?

The separate tort theory that a hospital was negligent in hiring or retaining a medical staff member reasonably known to be incompetent is considered ordinary negligence, with a three-year limitations period running from the date the employee's conduct injured the patient.

How is the S/L measured in a toxic substance-exposure case?

The three year S/L for suit against the manufacturer, distributor or supplier of the toxic substance begins to run upon the earlier of either: 1. Discovery of the injury (plaintiff becomes aware of symptoms) or 2. The date the injury should have been discovered with reasonable diligence. The toxic-substance discovery rule does not apply to claims of medical malpractice.

What are the special procedures that apply to personal injury actions against architects and engineers?

To compensate for problems of stale evidence, special procedures apply to personal injury actions against architects and engineers 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.

What is the formula for computing S/L?

To compute S/L, AND ANY OTHER TIME PERIOD IN THE CPLR, exclude the day upon which the triggering event occurs and begin counting the next day. E.g., if breach occurs on March 1, start the count on March 2. Practical result: the last day for commencing the action will usually be the anniversary date of the event: third anniversary of a personal injury or sixth anniversary of a breach of contract.

When must the action be commenced in order to satisfy S/L?

To satisfy S/L, the action must be commenced no later than the last day of the prescribed period of limitations. Commencement consists of filing process (process (papers used to commence the action) = summons and complaint, or summons with notice). The filing must be made with the clerk of the court on or before the last day of S/L.