Statute of Limitations

Question 0

Commencement of Action - General Rule

Answer 0

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

Question 1

Choice of Law Issues; Borrowing Statute

Answer 1

1. SoL of state where CoA arose controls
2. if CoA arises in multiple states, or another state and
   action is brought in NY,
   shortest SoL applies
   unless P is a NY Resident.

Question 2

When an Action is Commenced - Most Courts

Answer 2

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.

Question 3

Situations where Action is Commenced when D is served

Answer 3

situations where method other than “in hand”

1. Service by Publication - action commenced upon first publication so long as publication is completed.
2. Service by seizure of chattel - action commenced on date of seizure
3. 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.

Question 4

CoA with ONE year SoL

6

Answer 4

1. Intentional Torts
2. v. State Actors regarding Official Duties
3. Enforcement of Penalties or Forfeiture;
4. Recover Arbitration Awards;
5. Tenants v. Landlords for retaliation
6. Citizens enforcement of statutorily created penalty or forfeiture

Question 5

CoA with 2 Year SoL

1

Answer 5

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.

Question 6

Actions with a 30 month SoL

1

Answer 6

Medical Malpractice - 30 months of act, omission or failure

continuous treatment- as of date of last treatment.

Question 7

Actions with a 3 year SoL

5

Answer 7

1. Personal Injury or property damage (negligence)
2. Malpractice - other than medical
3. Annulment of marriage - grounds of fraud
4. Recovery of Statutorily or Judicially imposed Liabilities
5. Strict Product Liability actions (Accrual of Claim is date of injury)

Question 8

Actions with a 4 Year SoL

(3)

Answer 8

1. Claims under UCC (breach of contract under UCC)
2. Claims for residential rent overcharges
3. Claims for Default under a lease contract including breach of warranty or indemnity.

Question 9

Actions with a 6 year SOL

(6)

Answer 9

1. Breach of contract
2. Fraud or Mistake
3. Misbehavior of officer or director of a business entity
   
   • Except breach of Fiduciary Duty*
4. State claims for Misappropriation of Property
5. Negligence or breach of Fiduciary Duties of school district against a former member of a school board.
6. other claims Not Specifically Provided (default Rule)

Question 10

Actions with a 10 Year SoL period (2)

Answer 10

1. possession and recovery of real property
2. redeem property from a mortgage must be within 10 years of Date of breach, or date of the recording of deed to purchaser.

Question 11

Actions with a 20 Year SoL

4

Answer 11

1. recover on a bond
2. money judgement
3. Support, alimony, or maintenance
4. real property involving NY

Question 12

SoL for Civil Claims involving D who is subject to criminal action

Answer 12

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.

Question 13

Claims against Municipalities - Notice Requirements

Answer 13

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.

Question 14

Accrual of Claims

Answer 14

• 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.]

Question 15

Equitable Estoppel

Answer 15

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.

Question 16

Contractual Limitations and Extensions to Limitation period

Answer 16

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.

Question 17

Foreign Object Rule - Med-Mal

Answer 17

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.

Question 18

When is the SoL clock stopped for P

Answer 18

The date of the filing of the summons and complaint

Question 19

General Rule for Counterclaims and Defenses

Answer 19

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

Question 20

Set-Off

Answer 20

with related counterclaims,
D can use a set-off against damages
EVEN IF Claim would have been BARRED AT TIME P COMMENCED THE ACTION.

Question 21

3 Requirements to amend a party to a case AND have the original commencement date count against the amended parties

Answer 21

1. same event underlying action against first and second party.
2. other party knew or should have known they would be dragged in;
3. Unity of Interests between parties such that the party is forewarned. (partners, husband-wife, joint tenants to a property)

Question 22

Statute of Limitations for Torts against a municipality

Answer 22

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

Question 23

Actions that will Toll a statute of limitations - list

Answer 23

Disabilities
Absence Toll
Death of a party
New Action Toll

Question 24

Tolling - Disabilities

Answer 24

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.

Question 25

Statutory Period can be tolled where (2)

Answer 25

1. Forum non-conveniens is requested

2. request for arbitration tolling occurs from demand and final determination.

Question 26

Absence Toll

Answer 26

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.

Question 27

Tolling - Plaintiff Dies

Answer 27

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.

Question 28

Tolling - Defendant Dies

Answer 28

tolls statute for 18 months.

Question 29

“New Action” Toll

Answer 29

P has commenced an action that terminated,
P gets 6 months added from termination.

EXCEPT

1. voluntary termination
2. dismissal for failure to prosecute
3. final judgement on the merits
4. dismissal for lack of jurisdiction.

Question 30

Contractual SoL Provisions

Answer 30

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.

Question 31

Toxic Tort Rule

Answer 31

Where action for PI caused by exposure to substance

SoL runs from date exposure was or reasonably should have been discovered