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?

Answer 3

1) 3 yrs Personal injury based on negligence & strict PL: accrual from date of injury UNLESStoxic substance, then it’s from date of discovery Property damages (including conversion & replevin) Non-medical professional malpractice (e.g. legal malpractice!) 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

1) 4 months CPLR Article 78 proceedings (judicial review of NY state/local gov’t administrative action) 2) 1 yr Intentional torts to the person (e.g. assualt, battery, false imprisonment) 3) 1 yr, 90 days Personal injury/property damage claims against municipal ∆s NOTE: only runs provided there is notice to muni ∆ w/in 90 days of accident 3) 2 yrs Wrongful death: runs fromdate of death AS LONG AS can also be shown that decedent’s personal injury claim had not expired on date of death 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) 4) 2.5 yrs Medical, dental & podiatric malpractice:from date of malpractice injuryUNLESS 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