SOLs

Question 1

INDEMNITY AND CONTRIBUTION

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

START of SoL

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

SoL: 3 / 4 / 5 / 6 yrs

What actions have a SOL of 3 - 6 yrs?

Answer 3

1) 3 yrs

Injury: Personal injury based on negligence & strict PL: Start Trigger: accrual from date of injury UNLESStoxic substance, then it’s from date of discovery

Injury: Property damages (including conversion & replevin)

Injury: Non-medical professional malpractice (e.g. legal malpractice!)

2) 4 yrs
Injury: Ks governed by UCC Article 2 (Sales)
Start Trigger: accrual from tender of delivery (e.g. breach of warranty claim)

3) 5 yrs
Injury: Action by victim of rape-related felony
Start Trigger: 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
Injury: K breaches (express or implied; NOT UCC Art. 2) Start Trigger: accrual from date of breach regardless of knowledge of breach

Injury: Indemnity or contribution
Start Trigger: accural from date of payment for which indemnity/contribution is sought

Injury: Fraud
Start Trigger: π may sue w/in 6 yrs. of commission OR 2 years of discovery, whichever is longer

Injury: Equity actions (recission, reformation, accounting)

Question 4

SoL: 7 / 10 / 20 years

What actions have a SOL of 7 - 20 yrs?

Answer 4

1) 7yrs
Injury: Action by crime victim against convicted ∆ for ANY crime
Start Date: accrual from date of crime

2) 10yrs
Injury: Action to recover realty: same pd as adverse possession

Injury: Action by crime victim against convicted ∆ for a SERIOUS crime
Start Trigger: 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

Injury: Action on judgment

Question 5

TOLLING FOR DEATH

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

GRACE PERIOD

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 AND; 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… 1. A dismissal on the merits

2. A voluntary discontinuance by the π (dropped the suit)
3. If a dismissal was based on π’s neglect to prosecute(if it consisted of a general pattern of delay; BUT NOT merely one act)
4. A dismissal for lack of pjx
   NOTE: if dismissed for lack of smjx, then π IS entitled to 6 mo grace pd to refile
   NOTE: pjx encompass improper service of process, lack of a basis for jrx, improper form of summons

Question 7

SoL for Municipal Tort Liability

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

Separate “NOTICE OF CLAIM” Prerequisite: necessary to commence action against municipality (otherwise the action will be dismissed as “failure to state c/a”):

**IMPORTANT
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

Note: If the 9 day period to serve a Notice of Claim on te municipal ∆ has EXPIRED BUT the the time remaining on the 1 yr, 90 days SoL has not expired, P can make a motion requesting permission to serve a late notice of claim (motion to be determined at Ct’s discretion)

Question 8

SoL and TOXIC TORT CASES

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 EARLIER OF:

(i) the date of discovery of the injury; OR
(ii) the date that injury should have been discovered(w/ reasonable diligence)

“Toxic substance”= any inherently harmful toxin that has latent or slow-developing effects (e.g. asbestos, leaking petroleum, etc)
“exposure” = any sort of assimilation of toxic substance 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

COMPUTATION of SoL

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

SoL: Medical Malpractice

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)

JUST B/C it is a medical or other setting ALWAYS WATCH OUT ON BAR EXAM FOR WHAT THE ACTUAL CLAIM IS!

EXCEPTIONS to 2.5 yrs SoL starting from date of injury for medical malpractice situations:

1. CONTINUOUS TREATMENT RULE:
   after malpractice, if a physician continues to treat the patient after an operation FOR THE EXACT SAME CONDITION THAT GAVE RISE TO THE MALPRACTICE INJURY, then SOL is 2.5 yrs, accruing from the end of the treatmentfor that injury that gave rise to the malpractice claim
2. 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 EITHER:
   (i) 2.5 yrs from date of operation; OR
   (ii) 1 yr from the date of discovery or when item should have been discovered
   WHICHEVER IS LONGER

Note: Foreign object = something the doctor didn’t 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)
NOTE: Although 3 items listed do not qualify as foreign objects, there can still be a malpractice claim. Thus the SOL is 2.5 yrs from time that the object was placed in the body (not from when it was discovered)

Question 11

BORROWING STATUTE

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 designed 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) (basically apply shorter SoL)

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) (Basically always apply NY SoL if P π was resident when out-of-state claim arose)

Question 12

Tolling: Infants and Insane

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 ALSO get a toll until the disability ends (i.e. infant reaching 18 or insantiy clears up)

Once the disability ends…

1. If SOL for CoA 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
2. If SOL for CoA was LESS THAN 3 years : π gets specified statutory pd measured from the date of disability ending

NOTE: there is a 10yr ABSOLUTE ltd on SoL from original accrual for certain situations:

1. ALL Claims of insane πs barred after 10 yrs.
2. Infant’s claims for med malpracticebarred after 10 yrs

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

Satisfying SoL

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

SoL Tolling: Absent ∆s

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

SoL for PRODUCTS LIABILITY

What is the SOL for products liability claims?

Answer 15

SoL Depends on the tort theory…

1) Negligence Action:3 yrs. running from date from injury as against “all D’s in the chain of distribution”
2) Strict Products Liability Action: 3 yrs. running from date from injury
3) Breach of Warranty Action (UCC Art. 2 sales): 4 yrs.from date of delivery of productINTO THE CHAIN OF DISTRIBUTION as 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.

(i) Neg. & SPL against all D’s: 2011
(ii) 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

SoL for Learned Profession

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

Answer 17

WHO
This SOL applies to all members of a "learned profession" and applies for claims for economic injuries by clients against:
(i) Architects;
(ii) Engineers;
(iii) Accountants;
(iv) Attorneys			

BUT
"Learned" ≠ 
(i) insurance brokers; 
(ii) securities analysts; 
(iii) plumbers, etc.	

SoL Rules:
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. Specifically:
a. For architect or engineer, the 3 yr pd begins to run from the completion of building

b. For accountant or atty, the 3 yr pd begins to run from the delivery of work product to client

BUT
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 which is as follows:

FIRST: π must serve a notice of claim on the architect or engineer at least 90 days before suit (puts ∆ on notice);

SECOND: π may obtain pre-action discovery from the potential ∆ during the 90-day waiting pd; AND

THIRD: 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 maintenance)

Question 18

Tolling SoL for Death

What are the tolling rules for dead πs?

Answer 18

The tolling rules pertaining to death depend 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

3) IF a POTENTIAL ∆ dies at ANY TIME while a claim against that ∆ is still TIMELY according to the relevant SoL, then 18 MONTHS will be automatically added to the SoL regardless of whether a potential P needs the extra time