NY Practice - STATUTE OF LIMITATIONS

Question 1

When does Statute of Limitations begin to run?

Answer 1

When the Cause of Action “ACCRUES” - i.e. when injury first occurs

e.g. - In a PERSONAL INJURY or property damage action, the cause of action ACCRUES on the date of the injury (personal injury is 3 year S/L)

e,g 2 - In a BREACH OF CONTRACT action, the COA ACCRUES on the date of the breach (6 yr S/L)

Note: S/L is NOT measured from the date that the plaintiff DISCOVERS the injury, it runs from the date of the injury or breach EVEN if the plaintiff is unaware of the injury or breach

Note: INFANTS INJURED IN UTERO - under the substantive law, when an infant is injured in utero, the child has no COA unless the child is born alive, in which case the S/L begins to run from DATE OF BIRTH

Question 2

Breach of Contract - when does the COA accrue, and what is the standard statute of limitations for such an action?

Answer 2

COA accrues on the “date of the breach”

“Breach of Contract” claims have a - 6 YEAR STATUTE OF LIMITATIONS

Question 3

Statute of Limitations rule for infant injured “IN UTERO”

Answer 3

the child has no cause of action unless the child is born alive, and if born alive, the S/L begins to run from the date of birth

Question 4

To Satisfy the S/L the action must be “COMMENCED” - How does one “commence” an action

Answer 4

“COMMENCEMENT” consists of FILING PROCESS (process = summons and complaint, or summons and notice). The filing must be made with the clerk of the court on or before the last day of S/L

Question 5

Note on Computing Time periods for S/L and other purposes

Answer 5

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. breach occurs on March 1, begin counting on March 2.

So the last day for commencing the action will be an “anniversary date” of the breach or collision

e.g. assume car driven by Billy negligently smashes into Mayor Bloomberg’s mansion on June 1, 2012. The last day for timely commencement of Bloomberg’s action against Bily for damages for personal injury and/or property damages would be JUNE 1, 2015

Note: 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 P) gets until the end of the NEXT BUSINESS DAY to perform the required act

Question 6

What happens if the last day of performing a procedural (such as commencing an action by filing, or serving papers) falls on a Saturday, Sunday or public holiday?

Answer 6

Plaintiff gets until the end of the next business day to perform the required act

Question 7

Statute of Limitations for “MEDICAL malpractice” ?

Answer 7

2 and 1/2 years

applies to doctors, dentists, podiatrists, nurses and hospitals

Cause of Action generally accrues on date of malpractice.
– Date of P’s DISCOVERY of the malpractice is generally irrelevant

e. g. Dr. Evil bungles hemorrhoid operation on Austin on June 1, 2010. Austin discovers malpractice Sept, 1, 2012. Last timely date for commencement = Dec. 1, 2012.(2.5 yrs from date of malpractice)
- –last timely date for commencement of austin’s action against Mercy Hospital under theory of “respondeat superior” would also be Dec. 1, 2013 (bc still suing for the same med mal, just trying to recover from employer, so same S/L)
- –BUT if sued Mercy Hospital for negligent hiring, would get 3 yr S/L so would get till June 1, 2013 bc this is just a “negligence” action

2 EXCEPTIONS:
(1) EXCEPTION FOR CONTINUOUS TREATMENT: 2.5 yr period runs from end of treatment, if the continuous treatment is for the same condition that gave rise to the medical malpractice

(2) EXCEPTION FOR FOREIGN OBJECTS: if the physician is responsible for introducing a foreign object into the patient’s body and then leaves it behind, P gets WHICHEVER IS LONGER - EITHER
(i) 2.5 years from date of operation OR
(ii) ONE-YEAR FROM DISCOVERY or date when should have been discovered with reasonable diligence

• • a “FOREIGN OBJECT” is something the dr. did NOT intend to leave behind - e.g. temporary surgical clamps, sponges, scalpels.
• – does NOT include
  (i) chemical substances (e.g. medicine)
  (ii) Prosthetic Devices (e.g. plastic hip joint)
  (iii) Fixation device - item that the dr. deliberately placed in the body with the intent that it remain to serve some continuing treatment function (e.g. internal sutures, pacemaker, prophylactic diaphragm)
• —- for these 3 things, get standard 2.5 yr from date of Dr malpractice (aka date he put device in)

also “foreign object” doesn’t apply to things like tumors in patient’s body (e.g. dr. fails to remove a tumor, can’t get the extra S/L for him failing to remove it bc he didnt put it there)

Question 8

Statute of Limitations for “WRONGFUL DEATH” ?

(Statutory cause of action in favor of decedent’s distributes where D’s tortious conduct caused death; damages limited solely to distributees’ economic losses)

Answer 8

2 years

Two years runs from date of death, except it must ALSO be shown that
(i) S/L on decedent’s underlying personal injury claim had not expired on date of death

If criminal proceeding is brought against D, executor gets optional and independent one-year period from termination of criminal proceedings (regardless of whether conviction or acquittal)

Question 9

Statute of Limitations for “Professional malpractice, other than medical malpractice” ?

Answer 9

3 years

NOTE: for FINANCIAL LOSS this is an EXCLUSIVE S/L of 3 years that applies regardless of whether the claims are based on “tort” or “breach of contract”

S/L begins to run when the services are completed, regardless of P’s lack of awareness of the malpractice

HOWEVER, if person suffers BODILY INJURY as a result of non-medical professional’s malpractice, P has 3 year S/L from date of the bodily injury, regardless of date of completion of the work

Question 10

What counts as a “foreign object” ? (for purposes of medical malpractice, where Dr. leaves a “foreign object” in someone)

Answer 10

Foreign object = something the doctor did not intend to leave behind - e.g. temporary surgical clamps, sponges, scalpels

The following are NOT foreign objects (thus, no discovery rule):

(1) chemical substance (e.g. medicine)
(2) Prosthetic Device (e.g. plastic hip joint)
(3) Fixation Device (an item Dr. deliberately placed in the body with the intent that it remain to serve some continuing treatment function [e.g. internal sutures, pacemaker, prophylactic diaphragm])

for these three things, 2.5 year period runs not from date of discovery but from date of Dr.’s malpractice

Question 11

Statute of Limitations for “personal injury based on NEGLIGENCE or STRICT PRODUCT LIABILITY” ?

Answer 11

3 years

Personal injury and property damage claims accrue on date original injury occurs. no discovery rule applies except in case of toxic substances.

Question 12

Which professions count as “Learned Professions” to which the S/L for “other professional malpractice” applies?

Answer 12

Architects, Engineers, Accountants, Attorneys

“Learned Profession” DOES NOT include:

• Insurance Brokers
• Securities Analysts
• Plumbers, etc.

Question 13

Statute of Limitations for “Personal Injury and Property Damage Claims against a Municipal Defendant” ?

Answer 13

1 year and 90 days

P must also show that she served NOTICE OF CLAIM on the municipal D within 90 days of the accident. The court has discretion to allow a late service of notice claim, but in no event may such notice extend beyond the statute of limitations period plus any applicable tolling provision

Question 14

Statute of Limitations for “INDEMNITY and CONTRIBUTION?”

Answer 14

6 years

Accrual on date of payment for which indemnity or contribution is sought

Question 15

Statute of Limitations for “Intentional Torts to the person (e.g. assault, battery, false imprisonment, defamation)” ?

Answer 15

1 year

Question 16

Special Procedures for personal injury action against architects and engineers when action is brought MORE THAN 10 YEARS after the building was completed:

(professional malpractice)

Answer 16

3 Requirements:
(1) P must serve a notice of claim on the architect or engineer at least 90 days before suit

(2) P may obtain pre-action discovery from the potential D during the 90-day waiting period; and
(3) after suit is commented, if D moves for

summary judgment, the burden will be on P to make an immediate evidentiary showing that there is a “substantial basis” to believe that D’s negligence was the proximate cause of the injuries (i.e. it wasn’t on account of faulty maintenance)

Question 17

How is Statute of Limitations measured in a “Toxic Substance-exposure” case?

Answer 17

“TOXIC SUBSTANCE” is any inherently harmful toxin that has latent or slow-developing effects - They include: DES, asbestos, insecticides, HIV-virus, leaking petroleum

“EXPOSURE” is any sort of assimilation into one’s body or property

The 3 year S/L for suit against the manufacturer, distributor or supplies of the toxic substance begins to run upon the earlier of either:

(1) Discovery of the injury (i.e when the P becomes aware of the symptoms); and
(2) the date that the injury should have been discovered with reasonable diligence

NOTE: toxic substance discovery rule does not apply to claims of medical malpractice - e.g. for giving patient liver medication that injures liver - medication IS NOT a “toxic substance” - so 2.5 yr S/L would run from time of injection of medicine

Question 18

Tolls of S/L in Defendant’s absence from the jurisdiction

Answer 18

(1) If D is not in NY when cause of action accrues, S/L does not begin to run until D comes to NY
(2) If D is in NY when cause of action accrues, and D thereafter leaves NY and is continuously absent for at least 4 months, then toll applies to entire period of absence

UNLESS (exception to both) - Toll for absence is not available if P has a basis of personal jurisdiction over the applicable D, such that process could be validly served on D outside NY (no need for absence of toll if can get valid personal jurisdiction over D even though outside NY)

Question 19

Rule for “Infants” and “Insane” under statute of limitations (aka “Disability”)

Answer 19

INFANTS (under 18) or insane P’s may sue within regular S/L through a competent adult representative, but also get the benefit of a toll until the disability ends (i.e. until the infant turns 18 or the insanity clears up)

When the Disability ends, P gets whichever is longer:

(1) the usual S/L period running from the usual date of accrual; or
(2) 3 years from the date that the legal disability ends

e. g. Assume a breach of contract claim accrues in 2010 in favor of 16-yr-old Harry Potter. when he reaches 18 in 2012, how much time does he have within which to sue?
- under usual statutory per for breach (6 yrs) he would have until 2016, 3 years from turning 18 would only give him until 2015, so gets then longer 2016

e. g. 2 - what if breach of contract occurred in 2004?
- he gets until 2015 (3 years from turning 18)

IF the original S/L was less than 3 years:
then when disability ends, P gets the specified statutory period, measured from the date the disability ends

e.g. Assume 12 yr old Harry was assaulted by an evil wizard. When he reaches his 18th bday, harry has - 1 year from his 18th bday bc assault has a 1 year s/L

Question 20

2 situations where there is an outside limit of 10 years within which to commence an action

Answer 20

(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
- e.g. 3 yr old infant injured by medical malpractice on Jan 10, 2000. Claim against doctor becomes time barred after Jan 10, 2010.

(2) claims of INSANE plaintiffs, regardless of nature of cause of action, become time-barred after 10 years from date of accrual, when relying on toll for insanity

BUT - CONTINUOUS TREATMENT TOLL to be computed on its own, and action can be brought under either

e.g. Assume Dr. Seuss commits med mal on 3-yr-old Bart on Jan 10, 2000, and continued treatment for same condition until Jan 10, 2012. Bart’s action is timely up through July 10, 2014 (2.5 years from end of treatment). Under the infancy toll, the action expired in Jan 2010, but “continuous treatment” toll operates independently and gives any eligible patient, including an infant 2.5 years from termination of treatment

Question 21

Distinguish between a “SURVIVAL CLAIM” and a “WRONGFUL DEATH” claim

(Tolls for DEATH)

Answer 21

SURVIVAL CLAIM - is any cause of action that P herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include all damages incurred by P prior to death (e.g. pain and suffering)

• If plaintiff dies BEFORE S/L (on underlying COA) expires, estate representative gets WHICHEVER IS LONGER:
  (i) the time remaining on the applicable S/L running from the date of accrual, OR
  (ii) 1 year from plaintiff’s DEATH

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
-2 year S/L from DATE OF DEATH, but it must also be shown that the decedent possessed a timely COA at the time of death.

Note: the wrongful death and survivor claim are often asserted in one action

E.g. Assume auto accident on June 1, 2009 in which Lady Gaga’s negligence caused Papa Razzi’s eventual death on May 1, 2012. The last date for timely commencement of an action for Papa’s pain and suffering is:
– May 1, 2013 - bc at time of Papa’s death, his personal injury claim was still timely (still had 1 mo. left before usual 3-yr rule had expired) - so he gets the longer “1 yr from date of death”

The last timely commencement of action for Papa’s wrongful death claim is:
– May 1, 2014 - 2 years from date of death for wrongful death claim - available bc underlying personal injury claim was still timely on May 1, 2012 so get 2 years from date of death

Question 22

What result with respect to the original claim if Potential DEFENDANT dies before the S/L on that original claim expires?

Answer 22

18 months added to the relevant limitations period (regardless of whether P needs extra time)

e.g. accident in which D negligently injures P happens on June 1, 2009. S/L for negligence is 3 years, so normally, S/L would run out on June 1, 2012. however, if potential D dies before that time. We add an extra 18 months onto the end of the 3 year period. So S/L for plaintiff to bring a NEGLIGENCE suit against D’s estate (bc D is dead) will end on Dec. 1, 2013 (18 months from June 1, 2012)

Question 23

6 month grace period for DISMISSALS - when does it apply and what are the exceptions?

Answer 23

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

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

BUT 4 types of dismissal to which 6-mo grace period is NOT APPLICABLE: (MVP-Delay)

(1) dismissal was on the MERITS
(2) a VOLUNTARY discontinuance by P (P dropped lawsuit)
(3) dismissal for lack of PERSONAL JURISDICTION
(4) dismissed based on P’s NEGLECT to prosecute, “consisting of general pattern of DELAY”

NOTE: dismissal for lack of “subject matter” jurisdiction gets the 6 month extension

Assume a timely action is dismissed from a fed district court in NY. If S/L has expired in the meantime, will P get 6 months to start over again in NY state court?
–If dismissal was due to lack of diversity of citizenship? – YES bc lack of diversity is defect in SUBJECT MATTER jurisdiction

-but if instead, for instance, dismissal was due to defect in form of summons, or improper service of process, or due to out-of-state service in case wher long-arm jurisdiction was lacking - NO 6 MONTH grace period bc each of these is a defect in PERSONAL JURISDICTION

Question 24

The “Borrowing Statute”

in COA arising outside of NY, what S/L will NY courts apply?

Answer 24

if P is NON-RESIDENT of NY when the out-of-state claim arose - NY will apply S/L of state WHERE CLAIM AROSE if the other state’s S/L is shorter than that of NY - AND If NY S/L happens to be shorter than that of the state where COA arose, NY will apply is own S/L (basically, apply the shorter one either way [discourage forum shopping])

e.g. - IF P was a NY resident when the out-of-state claim arose – APPLY NY S/L regardless of whether it is shorter or longer than state where COA arose

Question 25

Statute of Limitations for “Article 78 Proceedings” ?

Art. 78 proceedings - judicial review of state and local government administrative action

Answer 25

4 months

Question 26

Statute of Limitations for “Contracts governed by UCC Article 2-Sales” ?

Answer 26

4 years

Breach of warranty claim accrues upon tender of delivery