preliminary Jx and SOL

Question 1

Law?

Answer 1

CPLR

Question 2

How to bring civil action

Answer 2

A court must have subject-matter jx to hear and adjudicate type of controversy before it. The court in which an action is brought is referred to as a court of original subject-matter jx. If such ct has general jx, it has power to hear any type of action.

the only trial ct in NY that has general subject matter jx is the NY Supreme Court. If any SC has jx, all due irrespective of venue

Question 3

What is SC’s jx?

Answer 3

general: unlimited as regards
1) monetary amount of P’s claim
2) ability to assert an equity claim (unlimited equity jx)
3) residency of parties
4) place where cause of action arose

Question 4

How are other courts characterized?

Answer 4

by limited monetary jx

Question 5

Forum non conveniens

Answer 5

non-residency of parties in NY and lack of relationship of claim to NY do not deprive ct. of SM jx. But the court has discretion, upon motion, to dismiss on ground of forum non conveniens when action lacks any substantial nexus to NY. Motion must be made by D-ct. can’t dismiss on its own.

Question 6

Exceptions to SC’s general jx

Answer 6

1) cases as to which federal law confers exclusive jx on fed cts
2) claims for money damages in tort or K against state of NY (bring these in NY ct. of claims). ONLY state can be sued in ct of claims–employees of state and subdivisions of state must be sued in NY SC

Question 7

foreign corps in NY

Answer 7

suits by foreign corps without authority: unauthorized foreign corps doing business in NY can commence an action but cannot continue action until it pays all fees, taxes, and penalties for time it did business without authority

suits against foreign corps: NY residents or domestic corps can freely sue. Nonresidents or foreign corps may not sue a foreign corp unless underlying action has meaningful tie to state.

Question 8

contractual choice of NY law

Answer 8

it is enforceable if transaction involves at least $1M and K contains an agreement by nonresident or foreign corp to submit to NY jx

Question 9

SC’s exclusive SM jx

Answer 9

Over:

1) matrimonial action: action in which court is asked to adjudicate marital status
2) CPLR Art 78 proceedings (distinguish from claims against state in tort or k)
3) declaratory judgment action

Question 10

SOL

Answer 10

affirmative defense, based on passage of time, to be raised by D

begins to run when cause of action accrues (ie when injury first occurs), NOT date P discovers injury

an action is commenced on date of filing process with clerk

note: under substantive law, when an infant is injured in utero, child has no cause of action unless child is born alive, in which case SoL begins to run from date of birth

Question 11

satisfying SoL

Answer 11

action must be commenced no alter than last day of prescribed period of limitation by filing with county clerk

begin counting on day after triggering event

if last day for performing any procedural act falls on a Saturday, Sunday, or public holiday, P gets until end of next business day to perform required act

Question 12

commencement against party united in interest

Answer 12

if original summons omitted party who is added after SoL expired, timely commencement against original D will toll SoL against newly added party if i) both claims arise out of same conduct; ii) parties share liability; and iii)new party knew or should have known that but for P’s mistake in identifying parties, action would also have been brought against him

Question 13

counterclaims

Answer 13

if a counterclaim would have been timely as of date of P’s commencement, counterclaim is timely

Question 14

claims in amended pleadings

Answer 14

relates back to time of commencement of original action if original pleading gives notice of events on which newly added cause of action is based

Question 15

raising SoL as defense

Answer 15

must be raised in either preanswer motion to dismiss or as affirmative defense in answer itself (or waived)

Question 16

20 years

Answer 16

actions by state to recover real property; ENFORCEMENT OF JUDGMENTS; and actions to recover principal or interest on certain bonds

Question 17

10 years

Answer 17

RECOVER REAL PROPERTY; to annul letters patent; to redeem a mortgage

Question 18

actions by crime victims

Answer 18

7 years: actions against a convicted D (runs from date of crime) for any crime
10 years: specific serious crimes (from date of conviction) (and up to 3 years from discovery of D’s receipt of money or property from any source)

victims of rape-related crimes have longer of 5 years from date of criminal act or 5 years from end of criminal proceedings

Question 19

6 years

Answer 19

non-UCC K breaches; actions on mortgage notes; actions for public property; fraud actions and those based on mistake; shareholder derivative actions, or those by a corp against directors; all other civil actions not specified

Non-UCC Contracts [breach date]; fraud [longer 6 years from injury or 2 years from discovery date]; indemnity/contribution [actual payment date]; equity (recission, reformation, accounting)

Note on fraud: claim accrues when P acts in reliance on fraud; may be commenced within 2 years after fraud was, or should have been, discovered despite 6 year period

Question 20

4 years

Answer 20

UCC ks [tender of delivery= breach of warranty]

Question 21

3 years

Answer 21

actions for nonpayment of money on execution; statutory liability; replevin; property damage and personal injury (based on neg, SL, and all malpractice other than medical); annulment; SL in tort

Negligence; personal injury; strict products liability; property damage (conversion/replevin) [injury date, unless discovery of toxic torts]; professional malpractice (non-medical)

Question 22

2.5 years

Answer 22

medical malpractice (doctors, dentists, podiatrists, nurses, and hospitals) (from date of malpractice, not discovery) (also 2.5 for vicarious liability suit against hospital)

note: if claim against hospital is based on own independent neg, standard 3 year SoL applies (from date of injury)

Exceptions to 2.5 yr rule:

(i) Continuous Treatment Rule: If doctor continues to treat P for same exact condition (only) giving rise to malpractice → P gets 2.5 years from termination of treatment
(ii) Foreign object rule (Discovery Option): If doctor places foreign object into body → P gets longer of (1) 2.5 years from date of insertion OR (2) 1.0 years from date P discovered (or should have discovered w/reasonable diligence foreign object)
- Foreign Object: Doctor introduced into body, not meant to be left behind (STRICT)
a. Excludes: (1) Chemical substance (medicine, drugs), (2) Prosthetic device (hip joint, limb), (3) Fixation device (item deliberately placed for continuing treatment function, e.g., sutures, pins, pacemaker, diaphragm) → these exclusions run from date of malpractice (the date thing placed into body)
(2) Misdiagnosis: Failure to detect/remove growth/object already in body is misdiagnosis (i.e. not a foreign object; e.g., cancer, tumor) → 2.5 years from date failed to remove.
(3) Object Already In Body: does not convert it into foreign object → misdiagnosis.

Question 23

2 years

Answer 23

Wrongful death (if underlying personal injury claim still timely) (statute begins to run when decedent dies, not when a legal representative is appointed)

Question 24

1 year, 90 days

Answer 24

Personal injury and property damage against government subdivisions/municipal defendants (notice filed 90 days after claim arises)

Question 25

1 year

Answer 25

Intentional Torts – assault, battery, false imprisonment, defamation (tolled for criminal prosecution), right of privacy

Question 26

4 mos

Answer 26

Article 78 administrative proceedings

Question 27

non-medical professional malpractice (learned professionals)

Answer 27

3 yr SoL generally, but with special considerations:
-3 years for all causes of action for financial loss (whether breach of K or tort) (from date service is completed, not date of discovery)
-Architect/Engineer—3 yrs from completion of building
-Accountant/Attorney—3 from delivery of work product
Continuous Representation Rule: 3 years from date of completion of services if claim arises during a continuing course of professional services on a specific matter.

• 3 year SOL for bodily injury/personal injury FROM DATE OF INJURY (regardless of date of completion), UNLESS
  (i) Special Rule: personal injury action against architect/engineer brought >10 years after building completed → three rules
  (1) Waiting Period: serve notice of claim >=90 days before filing suit
  (2) Pre-Action Discovery: P may obtain pre-action discovery during 90-day period; AND
  (3) P’s Burden on SJ: once action commenced/filed, if D moves for SJ → P burden to make immediate evidentiary showing of “substantial basis” to believe D’s negligence was proximate cause of injury (i.e., show no intervening cause).

Applies To: architects, engineers, accountants, attorneys; NOT insurance brokers, securities analysts, plumbers

Question 28

municipal tort liability

Answer 28

For suits for personal injury or property damage against government subdivision (county, city, town, school district) → SOL is 1 year + 90 days from date of accident

1) Notice of Claim Prerequisite: as condition prerequisite to tort action, P must serve notice to municipal D no later than 90 days from date of injury, ELSE failure to state cause of action
(a) Note: this is NOT commencement of action!
(b) after service of notice, P must wait 30 days and then commence the action; complaint must plead compliance with notice requirement
(c) if 90 day period has expired but 1 year 90 day SOL has not, P may motion requesting permission to serve a late notice of claim. Ct. has discretion to grant motion if municipal entity won’t be prejudiced

Question 29

products liability

Answer 29

Injured consumer P has 3 possible claims for personal injury from defective product:

1) Negligence: 3 years from date of injury against ALL Ds in chain of distribution
2) Strict Products Liability: 3 years from date of injury against ALL Ds in chain of distribution (same as negligence)
3) Beach of Warranty: 4 years (UCC) from date of sale/delivery (breach) by the particular D sued (so if against manufacturer, on date manufacturer tendered delivery of product, even if to 3P who sold it to P)
(a) Applied on seller-by-seller basis.
4) Indemnification and Contribution: 6 year SOL from date of actual payment in full of judgment for which indemnity or contribution sought (not date of original injury/issuance of judgment).

Question 30

toxic torts

Answer 30

3 year SOL from earlier of date: (1) injury discovered OR (2) should’ve been discovered with reasonably diligence, BUT: this doesn’t apply if medical malpractice.

1) Toxic Substance: any inherently harmful toxin (chemical substance) w/slow-developing effects (DES, HIV, leaking petroleum)
2) Exposure: any assimilation into one’s body or property.

if P, at time of discovery, doesn’t know cause was exposure to toxic substance, has: 1 year from discovery of cause (provided discovery occurs less than 5 years after discovery of injury AND technical or medical knowledge connecting injury and cause that demonstrates it couldn’t have been ascertained within 3 years of injury)

Question 31

tolling SOL for D’s absence

Answer 31

If D Not in NY when Action Accrues → SoL doesn’t start until D returns to NY.

If D Is In NY when Action Accrues, BUT Leaves NY and Continuously Absent for at least 4 months → SOL tolled for entire period of absence (NOT available though if P has basis of personal jx over absent D such that process can be validly served on D outside NY)

Question 32

toll for P’s infancy (<18) or insanity

Answer 32

if insane or infant at time cause of action accrues, SOL tolled until disability ends (turn 18; regain competence)

1) Disability Ends:
(a) Infancy: P turns 18
(b) Insanity: P’s insanity clears (i.e., factual; any mental disorder causing overall inability to function in society; app’t of guardian not necessary)
2) From Date Disability Ends:
(a) If Original SOL 3+ Years → P gets longer of (a) time remaining on original or (b) 3 years
(b) If Original SOL < 3 Years → P gets original SOL, starting on date disability end
3) Exception: Special 10 Year Limitation
(a) Infancy Toll: medical malpractice must be commenced (filed) within 10 years, even if still infant.
(i) But, P gets longer of infancy or continuous treatment tolls → P gets later of (1) for infancy, 10 years from date of injury or foreign object discovery, or (2) for continuing treatment, 2.5 years from date termination.

(b) Insanity Toll: all claims are timed-barred after 10 years from date of accrual (no exceptions)

Question 33

tolls for death

Answer 33

can bring both wrongful death and survival claims together (but separate SOLs).

1) Wrongful Death: Plaintiff-Survivors (spouse/children) have 2 year SOL from date of death, so long as decedent’s underlying personal injury claim was still timely on date of death.
(a) Wrongful Death: Tort suit for pecuniary (economic) losses and punitive damages (no decedent pain/suffering, no survivor’s emotional) suffered by spouse/children. Only loss of support.

2) Survival Claims: P-Estate has longer of (1) time remaining on original SOL OR (2) 1 year from date of death, so long as underlying claim was still timely on date of death.
(a) Survival Claim: any claim P could have brought, if still alive. Usually in tort context. Includes not just torts/damages, but also damages to P prior to death personal injury damages (pain and suffering).

3) Potential D Dies: If potential D dies at any time before SOL, P always gets extra 18 months.
4) 6 Month Grace Period: If NY action is timely commenced (filed) and later dismissed before trial + SOL expired after dismissal (or less than 6 months remaining) → P gets 6 months from date of dismissal to re-file same action and service process on same D.
(a) Exceptions: 6-month grace period disallowed if:
(i) dismissal was on the merits;
(ii) P voluntarily discontinued action;
(iii) P exhibited general pattern of delay (negligence) in prosecuting—not minor/one-time negligent
(iv) dismissal based on lack of personal jurisdiction—not subject matter
(1) Example: if dismissed from federal court for lack of diversity (so SM jx) → 6 months to re-file in state
(2) Example: if improper summons, service of process, out-of-state-service of process (if no long-arm statute → no grace period.

Question 34

Borrowing Statute

Answer 34

action arises outside NY: may have problem with differing SOLs

SO, to prevent forum shopping:

1) If P Non-NY Resident → NY Court applies shorter of (1) state-where-claim-arose OR (2) NY’s SOL
2) If P NY-Resident → NY Court applies NY SOL