Statute of Limitations Flashcards
Commencement of Action - General Rule
CoA commence within SoL period
from time claim arose.
Filing summons and complaint or summons and notice commences action. S&C or S&N must be served Action deemed commenced on date of filing
Choice of Law Issues; Borrowing Statute
- SoL of state where CoA arose controls
- if CoA arises in multiple states, or another state and
action is brought in NY,
shortest SoL applies
unless P is a NY Resident.
When an Action is Commenced - Most Courts
on filing of complaint.
must be served w/i 120 days of filing.
If properly effected, action commenced as of filing date,
not date of service.
Situations where Action is Commenced when D is served
situations where method other than “in hand”
- Service by Publication - action commenced upon first publication so long as publication is completed.
- Service by seizure of chattel - action commenced on date of seizure
- Service by delivery of summons to the Sheriff, date P delivered summons to the sheriff. In such case P must have made reasonable inquiry to determine D’s residence, place of employment, or place of business unsuccessfully.
CoA with ONE year SoL
6
- Intentional Torts
- v. State Actors regarding Official Duties
- Enforcement of Penalties or Forfeiture;
- Recover Arbitration Awards;
- Tenants v. Landlords for retaliation
- Citizens enforcement of statutorily created penalty or forfeiture
CoA with 2 Year SoL
1
Wrongful Death
Must be brought within 2 years of Death of P’s decedent.
CoA will lie if decedent had CoA against D at the time of death.
P’s case is derivative.
The underlying action must be viable for P to have a claim.
Actions with a 30 month SoL
1
Medical Malpractice - 30 months of act, omission or failure
continuous treatment- as of date of last treatment.
Actions with a 3 year SoL
5
- Personal Injury or property damage (negligence)
- Malpractice - other than medical
- Annulment of marriage - grounds of fraud
- Recovery of Statutorily or Judicially imposed Liabilities
- Strict Product Liability actions (Accrual of Claim is date of injury)
Actions with a 4 Year SoL
(3)
- Claims under UCC (breach of contract under UCC)
- Claims for residential rent overcharges
- Claims for Default under a lease contract including breach of warranty or indemnity.
Actions with a 6 year SOL
(6)
- Breach of contract
- Fraud or Mistake
- Misbehavior of officer or director of a business entity
- Except breach of Fiduciary Duty*
- State claims for Misappropriation of Property
- Negligence or breach of Fiduciary Duties of school district against a former member of a school board.
- other claims Not Specifically Provided (default Rule)
Actions with a 10 Year SoL period (2)
- possession and recovery of real property
- redeem property from a mortgage must be within 10 years of Date of breach, or date of the recording of deed to purchaser.
Actions with a 20 Year SoL
4
- recover on a bond
- money judgement
- Support, alimony, or maintenance
- real property involving NY
SoL for Civil Claims involving D who is subject to criminal action
1 year from termination of criminal action to commence civil action except:
criminal action involves rape, or other sex crime
will have 5 years from termination of criminal action.
Claims against Municipalities - Notice Requirements
tort actions v. public corporation
must serve “Notice of Claim” within 90 days of date claim arises.
Notice of claim is condition precedent to filing against a municipality.
- Notice of Claim is sworn affidavit naming claimant, attorney, and describing claim.
- served personally or by registered mail.
- Defects of service are waived on showing actual receipt of notice or demands for examination of the P.
Accrual of Claims
- date of the event - claim accrues. SoL begins the next day.
- series of events is necessary - SoL runs the day after the final event.
- indemnification or contribution - accrue after payment of damages - [can extend SoL on underlying tort or contract claim.]
Equitable Estoppel
affirmative conduct causes a SoL to expire,
D is barred from asserting statute as a defense.
Equitable Estoppel will extend the SoL period in Medical Malpractice if intentional concealment of malpractice from patient or
misrepresented the possibility of a cure resulting in injury.
P must establish action was brought within a reasonable period of time after facts giving rise to estoppel have ceased to be operational.
Contractual Limitations and Extensions to Limitation period
Parties may shorten SoL by contract so long reasonable and not contract of adhesion.
agreements to lengthen SoL is invalid if made before the CoA accrued.
if made after accrual, are enforced if in writing and signed by the party to be charged, whether or not for consideration.
Foreign Object Rule - Med-Mal
SoL runs on date the object was or should have been discovered.
The action must commence in one year of discovery or when it should have been discovered.
A foreign object is something that is dropped into the body.
A fixation device or object placed with purpose,
not a foreign object even if negligently left there.
When is the SoL clock stopped for P
The date of the filing of the summons and complaint
General Rule for Counterclaims and Defenses
deemed interposed when SERVED
NOT time barred if not time barred when P filed the action
counterclaim or defense need not be related to P’s claim
Set-Off
with related counterclaims,
D can use a set-off against damages
EVEN IF Claim would have been BARRED AT TIME P COMMENCED THE ACTION.
3 Requirements to amend a party to a case AND have the original commencement date count against the amended parties
- same event underlying action against first and second party.
- other party knew or should have known they would be dragged in;
- Unity of Interests between parties such that the party is forewarned. (partners, husband-wife, joint tenants to a property)
Statute of Limitations for Torts against a municipality
One year 90 days
Notice of a claim must be filed within 90 days.
Court can grant an extension of the time to file a notice of claim in some circumstances but never beyond the SoL
Actions that will Toll a statute of limitations - list
Disabilities
Absence Toll
Death of a party
New Action Toll
Tolling - Disabilities
Infancy and Insanity
SoL > 3 years - term of disability tolls the SoL.
Limitation period is added to end of disability.
SoL < 3 years - add 3 years to the end of the disability if needed.
LIMIT - maximum of 10 years for insanity - from when CoA acrued
Infancy and Med-Mal - max of 10 years from the accrual of the claim.
Statutory Period can be tolled where (2)
- Forum non-conveniens is requested
2. request for arbitration tolling occurs from demand and final determination.
Absence Toll
D is absent from state or hiding under assumed name.
Will not apply to D that can be served under NYS Long Arm Statute.
Occurs where no personal jurisdiction over D and
D is not in the state,
on the outside chance they happen into the state.
Tolling - Plaintiff Dies
P dies prior to expiration of accrual period for claim,
representative may commence action within one year of death.
*Primarily where claimant dies inside one year of expiration of the SoL.
Tolling - Defendant Dies
tolls statute for 18 months.
“New Action” Toll
P has commenced an action that terminated,
P gets 6 months added from termination.
EXCEPT
- voluntary termination
- dismissal for failure to prosecute
- final judgement on the merits
- dismissal for lack of jurisdiction.
Contractual SoL Provisions
Parties can shorten the SoL by contract if period is reasonable and not a contract of adhesion.
Lengthening the SoL is invalid if made before CoA accrued.
Toxic Tort Rule
Where action for PI caused by exposure to substance
SoL runs from date exposure was or reasonably should have been discovered
