Statute of Limitations

Question 1

Action enforcing a $ Judgment

Answer 1

20 years from date of judgment

-clock starts re-running when P receives partial payment from D OR parties agree to a longer period in a signed writing

Question 2

Action enforcing child support/alimony payments due but not year paid

Answer 2

20 years

Question 3

Action to recover realty

Answer 3

10 years

Question 4

Action by crime victim against convicted defendant for a SERIOUS crime

Answer 4

10 years

- period runs from date of crime

Question 5

Action by crime victim against convicted defendant for ANY crime

Answer 5

7 years from date of crim

Question 6

Breach of Contract (express or implied; other than UCC Article 2 sales; includes breach of warranty under Article 2A for lease of goods)

Answer 6

6 years

- accrual on date of breach

Question 7

Indemnity and contribution claim

Answer 7

6 years

- accrual starts on the date of actual payment of the judgment for which indemnity or contribution is sought

Question 8

Fraud

Answer 8

Typically 6 years

• P may sue w/in 6 years of commission of fraud OR 2 years of discovery (actual or imputed), WHICHEVER IS LONGER.

Question 9

Equitable actions

Answer 9

6 years under the statutory catch-all for any action w/ no specific SoL

Question 10

Actions for divorce/separation grounded on cruel and inhuman treatment, adultery, etc.

Answer 10

DRL – 5 years

Question 11

Action by victim of rape-related felony

Answer 11

5 years

• period runs from date of crime
• if perp is prosecuted, victim gets an extra 5 years from termination of the criminal proceeding (regardless of convicted or acquitted)

Question 12

Sales Contracts Governed by UCC Article 2

including breach of warranty

Answer 12

4 years

- breach of warranty claim accrues upon tender of delivery

Question 13

Personal injury based on negligence and strict products liability

Answer 13

3 years

• claim accrues on date of original injury
• No discovery rule EXCEPT in cases of toxic substances (but note- the toxic-substance discovery rule does not apply to claims of medmal, just claims against the manufacturer)

Question 14

Property Damage (incl. conversion and replevin)

Answer 14

3 years

- accrues on date of damage

Question 15

Professional Malpractice (other than medical/dental/podiatric)

Answer 15

3 years
- either from completion of the work (building built, work-product turned over to client) OR from date of bodily injury regardless of date of completion

NOTE: Professional is not just license; it involves formal educ. & training. e.g. vet, accountant, lawyer, architect, engineer, BUT NOT insurance brokers and agents. D’s that are not “professional” subject to 6 yr SoL for ordinary breach of K claim.

Question 16

Medical, dental, and podiatric malpractice

Answer 16

2 1/2 years

• suit against hospital for vicarious liability for malpractice gets same SoL
• accrues on date of the malpractice
• foreign object exception- foreign object cases either get 2.5 years from time of malpractice OR 1 year SoL from discovery of the foreign object or from the date of discovery of facts which would reasonably lead to such discovery
• continuous treatment acts as a toll
• Covers all MD: chiropractor, psychiatrists [but not psychologists], orthodontist, etc
• nurses, emergency responders, can fall under this IF providing “medical” services not just making bed, driving the ambulance, etc. Otherwise 3 yr.
• Labs- if you sue the lab, its 3 years, except if it’s a lab that reads the films and the radiologist is an MD then it’s 2 ½

Question 17

EPTL wrongful death actions

Answer 17

2 years running from date of death so long is it is ALSO shown that the SoL on decedent’s underlying claim had not expired on date of death

NOTE: if criminal proceeding is brought against the D, executor gets optional and independent 1 year period from termination of criminal proceedings

Question 18

Tort actions against a municipality

Answer 18

1 year 90 days

• P must also show that she served a notice of claim on the municipal D w/in 90 days of the accident. After service of the notice of claim, P must wait 30 days and then commence the action.
• no notice of claim –> D entitled to dismissal for failure to state a CoA
• complaint must be verified & must plead compliance w/ the notice of claim requirement

NOTE: If the 90 day period to serve a notice of claim on a municipal entity has expired, but the time remaining on the one year and 90 days statute oflimitations has not expired, the plaintiff may make a motion requesting permission to serve a late notice of claim. The court has discretion to grant the motion if the municipal entity will not be prejudiced, as, for example, where it had actual knowledge of the facts within 90 days of the accident

Question 19

Intentional torts to the person (assault, battery, false imprisonment, defamation)

Answer 19

1 year

• defamation “First Edition Rule”- accrual at the moment the actionable words are published

Question 20

confirmation of arbitration award

Answer 20

1 year

Question 21

Article 78 Proceedings

Answer 21

4 months

- measured from when determination becomes final (certiorari) or when demand for performance is refused (mandamus)

Question 22

When is an action deemed commenced/interposed?

Answer 22

Commencement consists of filing process. The filing must be made w/ the clerk of the court on or before the last day of the SoL.

process = summons and complaint OR summons w/ notice.

Question 23

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

Answer 23

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 discover from the potential D during the 90 day waiting period; and
3- after suit is commenced, if D moves for SJ the burden will be on P to make an immediate evidentiary showing that there is a “substantial basis” to believe that Ds negligence was the proximate cause of the injuries.

Question 24

Toll for D’s Absence (2)

Answer 24

1- If D is not in NY when CoA accrues, SoL does not begin to run until D comes to NY

2- If D is in NY when CoA accrues, and thereafter leaves NY and is continuously absent for at least 4 months, then toll applies to the ENTIRE period of absence.

EXCEPTION: A D is not considered to be absent if:

• he has an agent in NY for service of process
• he is regularly in NY (like for work daily), even though residing somewhere else
• he is subject to NY’s long arm jurisdiction (NOTE: this exception pretty much swallows the rule)

Question 25

Toll for Plaintiff’s Infancy or Insanity (Legal disability)

Answer 25

• can sue w/in regular SoL through a competent adult rep
• If P is infant or insane @ time of accrual, SOL is tolled until the disability ends.

Note: Insanity is defined as any mental disorder that causes an overall inability to function in society. To be “insane” P need not have been adjudicated insane and appointed a guardian.

Question 26

When a legal disability ends, how long does P have to sue?

Answer 26

Infancy:

• if SOL was 3 years or more, P gets whichever is longer between: (i) the usual SoL running from usual date of accrual (w/o the toll), OR (ii) 3 years from 18th birthday
• If SOL was less than 3 years, P gets the original SoL measured from his 18th birthday
• MedMal is capped at 10 years from date of malpractice. If P is not 18 by 10 years from occurrence/discovery then his guardian must bring a suit on his behalf

Insanity:

• if SOL was 3 years or more, P gets whichever is longer between: (i) the usual SoL running from usual date of accrual (w/o the toll), OR (ii) 3 years from regaining sanity
• If SOL was less than 3 years, P gets the original SoL measured from regaining sanity
• BUT NOTE: Insanity CANNOT result in an extension beyond 10 years from accrual of claim (even if the person is still insane 10 years later).

Question 27

Distinguish between “Survival Claim” from “wrongful death claim”

Answer 27

• Survival claim is any cause of action π herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include all damages incurred by π prior to death, e.g., pain and suffering
• 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 he distributees or the decedent’spersonal painand suffering. Recovery is not part of the estate, but paid directly to the distributes in the proportions ordered by the court. LOSS OF CONSORTIUM is not compensable in a wrongful death action in NY.
• The party who sues on behalf of the decedent’s estate as to either type of claim is the executor (if the decedent died with a will) or administrator (if the decedent died without a will)
• each claim is governed by its own SoL rules
• The wrongful death action and survival claim are often asserted in one action

Question 28

Wrongful death cause of action

Answer 28

2 years from the date of death, but it must also be shown that decedent possessed a timely cause of action at the time of death

Question 29

Survival claim

Answer 29

If plaintiff dies before the S/L expires, the estate representative gets whichever is longer: the time remaining on the applicable S/L running from the date of accrual OR 1 year from plaintiff’s death

Question 30

Toll for Death of Defendant

Answer 30

If potential Δ dies AT ANY TIME before the S/L expires, 18 months are always added to the relevant limitations period (regardless of whether π needs extra time)

NOTE:

• suit must be brought against decedent’s personal rep
• if a claim does not accrue to P until after D’s death then the claim is NOT against Ds, but against D’s estate, and thus gets no death extension [exception- when both parties dies in a common disaster, Ps estate gets the 18 month extension]

Question 31

6-Month Grace Period Toll After Dismissal

• what is it?
• what are the exceptions?

Answer 31

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

BUT there are 4 types of prior dismissals where the 6-month grace period is NOT applicable:
1- voluntary discontinuance
2- dismissal on the merits
3- some dismissals for failure to prosecute– neglect to prosecute due to general pattern of delay = no grace period; 1 act of neglect or delay = still get grace period
4- dismissal for failure to obtain PJ over D (includes defective summons, improper service, etc.)

Question 32

The Borrowing Statute

Answer 32

• Use when a claim accrues outside of new york to a non-resident P (including a foreign corp).
• NY SoL and the law of the situs are compared and the shorter of the two is applied
• The periods compared are the “net” periods – NY period w/ all relevant extensions & tolls vs. foreign SoL w/ all applicable foreign extensions& tolls
• If the SoL has expired under either jurisdictions law, the claim is barred