SOLs

Question 1

What is the SOL for indemnity and contribution?

Answer 1

SOL = 6yrs running from the date of actual pmt of judgment for which indemnity or contribution is sought

Question 2

When does the SOL begin to run?

Answer 2

When the c/a “accrues” (i.e. when the injury first occurs) SOL is NOT measured from the date that the π DISCOVERS the injury (i.e. it runs even if the π is unaware of the injury)

Question 3

What actions have a SOL of 3 - 6 yrs? What about 2.5 yrs

Answer 3

NB - under tort doctrine, with some exception it is generally immaterial when P actually discovers that she was injured. SOL will run from the date she was ACTUALLY INJURED (not when she discovered the injury WHEN THE ACT OCCURRED), unless the claim is based on exposure of substance (bc of asbestos injuries occur future in the future) or based on the discovery of a foreign object left in the patient’s body (impossible to know esp if it is a very small object)

(b) SOL w/in 2.5 yrs.
- personal injuries from medical malpractice w/in 2.5 yrs of act, omission or failure to complain of, OR the last treatment when there is CONTINUOUS TREATMENT fir the SAME illness, injury or condition that have rise to act, omission, or failure
(b) SOL w/in 3 yrs
- personal injuries from negligent (only including non-medial malpractice) and strict liability (other than exposure to toxic substance) w/in 3 yrs of injury was discovered (tolled for minors (have up to w/in 3 yrs from/after 18yr b-day) and insane P)
- property damages (including conversion and replevin (recover the possession of items))
- personal injury from exposure to toxic substance (or combination of substance- w/in 3 yrs from the time at which the INJURY WAS DISCOVERED or reasonably should have been discovered … (nb-supplier of a component in a substance is only liable if is actual substance was defected and had control over complete product
- malpractice actions (other than medical malpractice, which are two and a half years) … these are NON-MEDICAL MALPRACTICE SUCH AS ACCTING, LAWYER ETC ECT
2) 4 yrs Ks governed by UCC Article 2 (Sales): accrual from tender of delivery (e.g. breach of warranty claim)
3) 5 yrs Action by victim of rape-related felony: accrural from date of crime (NOTE: if perp is prosecuted, victim gets EXTRA 5 yrs from termination of criminal proceedings nws outcome of trial)
4) 6 yrs K breaches (express or implied; NOT UCC Art. 2): accrual from date of breach regardless of knowledge of breach Indemnity or contribution: accural from date of payment for which indemnity/contribution is sought Fraud: π may sue w/in 6 yrs. of commission OR 2 years of discovery, whichever is longer Equity actions (recission, reformation, accounting)

Question 4

What actions have a SOL of 7 - 20 yrs?

Answer 4

1) 7yrs Action by crime victim against convicted ∆ for ANY crime: accrual from date of crime 2) 10yrs Action to recover realty: same pd as adverse posession Action by crime victim against convicted ∆ for a SERIOUS crime: accural from date of conviction (NOTE: victim may also sue for damages for up to 3 yrs from discover of ∆’s receipt of money/property from any source) 3) 20 yrs Action on judgment

Question 5

What are the tolling rules if a potential ∆ dies?

Answer 5

If potential ∆ dies AT ANY TIME before the SOL expires, 18 months (1.5 yrs) are always added to the relevant SOL pd (regardless of whether π needs the extra time)

Question 6

How can a π get a 6 month grace pd for SOL purposes?

Answer 6

If an action is timely commenced BUT dismissed before trial & at the time of dismissal SOL has EITHER expired OR has less than 6 months remaining → π gets 6 months from the date of dismissal to re-file the same action & serve process on ∆ 4 EXCEPTIONS where grace pd is NOT applicable… dismissal on the merits voluntary discontinuance by the π (dropped the suit) π neglects to prosecute(if it consisted of a general pattern of delay; BUT NOT merely one act) dismissal for lack of pjx (NOTE: if dismissed for lack of smjx, then π IS entitled to 6 mo grace pd to refile)

Question 7

What is the SOL for personal injury or property damage against a gov’t subdivision of the state (county, city, town, school district, or municipal hospital)?

Answer 7

The SOL is 1 yr, 90 days from the date of the accident Notice of claim requirement: necessary to commence action against municipality (otherwise the action will be dismissed as “failure to state c/a”): π must serve a notice of claim on the potential municipal ∆ w/in90 days from the date of the accident (NOTE: service of the notice is NOT a commencement of the action) After service of notice, the π must wait 30 days and THEN commence the action against the municipality The complaint must plead compliance with the notice of claim requirement

Question 8

How is the SOL measured in a toxic tort case?

Answer 8

SOL = 3yrs against the mnfr, distributor or supplier of the toxic substance running from the date of discovery ORshould have discovered(w/ reasonable diligence)the injury

“Toxic substance exposure”= any inherently harmful toxin that has latent or slow-developing effects (e.g. asbestos, leaking petroleum, etc) assimilated into π’sperson or property

NOTE: the toxic tort discovery rule does NOT apply to claims of medical malpractice (toxic tort cases are against the mnfr/distributor of the toxic substance)

Question 9

How do you compute the SOL pd?

Answer 9

To compute SOL (and ANY OTHER TIME PD IN CPLR), exclude the day upon which the triggering even occurs AND begin counting the next day Practically: SOL end dates always fall on “anniversary date” of the injury in question (e.g. if injury happens on June 1, 2012 with a 1 yr SOL, the last day for timely commencement = June 1, 2013) NOTE: if the LAST DAY of the SOL pd falls on a (i) Saturday; (ii) Sunday; or (iii) public holiday, then π gets until end of the next business day to commence action

Question 10

What is the SOL for medical malpractice (doctors, dentists, podiatrists, nurses and hospitals)?

Answer 10

General rule: the SOL pd. is 2.5 yrs, accruing from date of injury The date of π’s discovery of the malpratice is IRRELEVANT NOTE: if π is suing hospital for vicarous liability (respondeat superior), the SOL is 2.5 yrs, BUT if π is suing hospital for negl. hiring, then the SOL is 3 yrs (personal injury damages) EXCEPTIONS: Continuous Treatment Rule: after malpractice, if a physician continues to treat the patient after an operation FOR THE EXACT SAME CONDITION, then SOL is 2.5 yrs, accruing from the end of treament Foreign Object Rule: if the physician was responsible for introducing a foreign object into patient’s body (and leaves it behind), π gets SOL of (i) 2.5 yrs from date of operation; OR (ii) 1 yr from the date of discovery (or should have discovered), WHICHEVER IS LONGER Foreign object = something the doctor didnt intend to leave behind (e.g. surgical clamps, scalpels, etc) Foreign object ≠ (i) chemical substance (medicine); (ii) prosthetic device (plastic hip joint); (iii) fixation device (pacemaker, internal sutures, etc)&raquo_space; SOL is thus 2.5 yrs from malpractice (not discovery)

Question 11

What is the “borrowing statute”?

Answer 11

When the c/a arises outside of NY a choice of law problem occurs if SOL of the other state is different from NY The “borrowing statute” is desiged to prevent forum shopping by non-resident πs seeking a longer SOL in NY Rules: 1) If π was a non-resident when out-of-state claim arose → if SOL in state where COA arose is shorter, NY will apply it; otherwise NY SOL applies (which would be shorter) 2) If π was resident when out-of-state claim arose→will always apply NY SOL (regardless of whether the other state’s SOL is shorter/longer)

Question 12

What are the tolling rules for infants or the insane?

Answer 12

Infants (i.e. under 18) OR insane πsMAY sue w/in regular SOL (w/ competent adult rep.) BUT they could get a toll until the disability ends (i.e. infant reaching 18 or insantiy clears up) Once the disability ends… If SOL for c/a was 3+ yrs.: π gets the LONGER of (i) the usual SOL pd running from usual date of accrual; OR (ii) 3 yrs from date of disability ending If SOL for c/a was < 3 yrs: π gets specified statutory pd measured from the date of disability ending NOTE: there is a 10yr ABSOLUTE ltd on SOL from original accrual Claims of insane πs barred after 10 yrs. Claims for med malpracticebarred after 10 yrs (for infants and insane πs) ALSO NOTE: for med malpractice, continuous treatment toll and legal disability toll are separate so if applicable then run separately to see what’s best

Question 13

How does a π satisfy the SOL requirement?

Answer 13

To satisfy the SOL, the c/a must be “commenced” no later than the last day of the prescribed pd of limitations Commencement consists of “filing process” (process = summons and complaint OR summons with notice), which must be filed with the COUNTY clerk (the clerk for the ct)

Question 14

What are the tolling rules for absent ∆s?

Answer 14

1) If ∆ not in NY when COA accrues:SOL does not begin to run (i.e. it’s tolled) until he returns to NY 2) If ∆ in NY when COA accrues BUT thereafter leaves NY AND is continuously absent for at least 4 months:SOL tolls during time absent EXCEPTION: no tolling if π has a basis of pjxover absent ∆ that would allow process to be validly served (NOTE: this is often the case, so usually absence tolling isn’t available) E.g.: Texan comes to NY, punches someone & goes back to Texas. No tolling b/c long arm available b/c tortious act in NY (π has pjx).

Question 15

What is the SOL for products liability claims?

Answer 15

Depends on the tort theory… 1) Negligence:3 yrs. running from date from injury as against “all D’s in the chain of distribution” 2) Strict Products Liability: same as neg. (3 yrs) 3) Breach of Warranty (UCC Art. 2 sales): 4 yrs.from date of delivery of productas against whom the warranty claim is asserted Ex: Manufacturer sold scooter to wholesaler in 2003; wholesaler sold it to retailer in 2004; retailer sold it to consumer in 2005; consumer suffered PI in 2008 b/c of defect. Neg. & SPL against all D’s: 2011 Warranty: Man. = 2007, Whole = 2008, Retail = 2009

Question 16

What actions have a SOL of 0 - 2.5 yrs?

Answer 16

SOL w/in 4 months

4 months CPLR Article 78 proceedings (judicial review of NY state/local gov’t administrative action)

• An Article 78 proceeding is named after Article 78 of the New York Civil Practice Laws and Rules. Relief that was previously obtained by writs of certiorari to review, mandamus or prohibition can be obtained in a proceeding under this article. However a proceeding under this Article shall not be used to challenge a determination that is not final or one that is made in a civil action or criminal matter unless it is an order summarily punishing a contempt committed in the presence of the court. A proceeding under this Article being a special proceeding canbe brought only in the Supreme Court of the County.
• Mandamus compels action and only applies to purely ministerial duties. Prohibition prevents body from overstepping its jurisdiction. The third writ, certiorari, reviews administrative determinations post hearing. Article 78 cases often straddle the line between these writs.

SOL w/in 1 yr

• intentional torts to the ‘person’ (e.g. assualt, battery, false imprisonment) and (i think) intentional tort of intentional infliction of emotional distress (IIED) and trespassing
• wrongful death (optional and independent) - w/in 2 yrs from from date of death as long as can also show that decedent’s personal injury claim had not expired on date of death …or …if criminal proceeding is brought against D, 1 year after the termination of a criminal action against the D arising of death or

SOL w/ 1 yr and 90 days

• personal injury and property damage claims against municipal defendants ( against a city, town, village, fire or school district)
• NB - there is also a condition precedent that a notice of claim be served on the municipal defendant within 90 days after the claim arises/of accidence

SOL w/in 2yrs

• wrongful death (suit bought on behalf of dead person) from date of death as long as can also show that decedent’s personal injury claim had not expired on date of death … or (optional and independent) … w/in 1 year after the termination of a criminal action against the D arising of death
• for wrongful death permits the decedent’s representative estate to sue for pecuniary losses (medical and funeral exp, loss of support, loss of parental guidance, and loss of probable inheritance) also can have punitive damages, BUT NOT noneconomic losses such as personal grief,pain and suffering (bc dead cant have pain and suffering)
• pecuniary losses-estimated in and compensated by money; not merely the loss of money or salable property or rights, but all such loss, deprivation, or injury as can be made the subject of calculation and of recompense in money.

NOTE: If criminal proceeding is brought against ∆, executor gets optional & independent 1 yr. from termination of criminal proceeding (TOTALLY INDEPENDENT FROM OTHER RUNNING OF SOL)

SOL w/in 2.5 yrs

• personal injuries from medical malpractice w/in 2.5 yrs of act, omission or failure to complain of, OR the last treatment when there is CONTINUOUS TREATMENT fir the SAME illness, injury or condition that have rise to act, omission, or failure
  2. 5 yrs Medical, dental & podiatric malpractice: from date of malpractice injury UNLESS continuous treatment (end of treatment) OR foreign objects (1 yr. from discovery)

Question 17

What is the SOL for non-medical malpractice (architects, engineers, accountants, attys)?

Answer 17

1) if client has financial loss: there is an EXCLUSIVE (supercedes all other relevant SOL) 3 yr SOL, which applies REGARDLESS of whether the claims are based on tort or breach of K The SOL begins to run when the services are completed, REGARDLESS of the π’s lack of awareness of malpractice For architect or engineer, the 3 yr pd begins to run from the completion of building For accountant or atty, the 3 yr pd begins to run from the delivery of work product to client 2) If client has bodily injury: there is a 3 yr SOL running from the date of the bodily injury REGARDLESS of the date of completion of the work NOTE: there is a special procedure for architects/engineers for c/as brought more than 10 yrs after the building was completed: π must serve a notice of claim on the architect or engineer at least 90 days before suit; π may obtain pre-action discovery from the potential ∆ during the 90-day waiting pd; AND After suit is commenced, if ∆ moves for summary jdgmt, the burden will be on π to make an immediate evidentiary showing that there is a “substantial basis” to believe that ∆’s negl. was the proximate cause of π’s injuries (i.e. there were no intervening causes like faulty maintanence) NOTE: this SOL applies to all members of a “learned profession” “Learned” ≠ insurance brokers; securities analysts; plumbers, etc.

Question 18

What are the tolling rules for dead πs?

Answer 18

Depends on whether it’s a wrongful death or survival claim… 1) Survival Claim =any c/a π could have brought if still alive Damages = any incurred by π prior to death (including pain and suffering); not ltd to tort damages SOL = if claim still timely on date of death,executor gets time remaining running from date of accrual OR 1 yr. from date of death (whichever is LONGER) 2) Wrongful Death Claim =tort claim for economic (pecuniary) damages of decedent’s statutory distributees (e.g. surviving spouse, etc) Damages = economic + punitive BUT NOT emotional suffering of distributees or π’s p&s. SOL =if claim still timely on date of death, 2yrsfrom date of death NOTE: wrongful death actions and survival claims are often asserted in ONE action, but you have to apply different SOL rules