Statute of Limitations

Question 1

What is the statute of limitations for a personal injury or property damage action?

Answer 1

It is 3-years, and it accrues on the date of the injury. No discovery rule applies except in cases of toxic substances.

Question 2

What is the statute of limitations for a breach of contract action?

Answer 2

It is 6 years and it accrues on the date of the breach, regardless of plaintiff’s lack of knowledge.

NOTE: This does not apply for UCC Article 2 contracts.

Question 3

What is the statute of limitations for an action on a judgment?

Answer 3

It is 20 years from the date of the judgment.

Question 4

What is the statute of limitations for an action to recover realty and adverse possession?

Answer 4

It is 10 years.

Question 5

What is the statute of limitations for action by crime victim against convicted defendant for a serious crime?

Answer 5

It is 10 years and it accrues from the date of the conviction.

Question 6

What is the statute of limitations for an action by a crime victim against convicted defendant for ANY crime.

Answer 6

It is 7 years and accrues from the date of the crime.

Question 7

What is the statute of limitations for indemnity and contribution?

Answer 7

It is 6 years and accrues on date of payment for which indemnity or contribution is sought.

Question 8

What is the statute of limitations for a UCC Article 2 contract?

Answer 8

It is 4 years and it accrues from breach of contract. However, breach of warranty claim accrues upon tender of delivery.

Question 9

What is the statute of limitations for an action of fraud?

Answer 9

It is 6 years within commission of fraud or 2 years of discover (actual or imputed), whichever is longer.

Question 10

What is the statute of limitations for equity actions (recission, reformation, accounting)?

Answer 10

It is 6 years.

Question 11

What is the statute of limitations for action by victim of rape-related felony?

Answer 11

It is 5 years and it accrues from the date of the crime. If the perpetrator is prosecuted, victim gets an extra 5 years from termination of the criminal proceeding, regardless of whether there is a conviction or an acquittal.

Question 12

What is the statute of limitations for professional malpractice (other than medical malpractice)?

Answer 12

It is 3 years, regardless of whether it is a tort or contract tort. It accrues regardless of the plaintiff’s lack of awareness.

For architect or engineer, the 3 year period begins to run from completion of the building; for accountant or attorney, from delivery of work product to client.

However, if a person suffers bodily injury, they have the usual 3 year SOL from the date of the bodily injury.

Question 13

What is the statute of limitations for medical malpractice?

Answer 13

It is 2 1/2 years and it accrues on date of malpractice.

Exceptions:

Continuous treatment - it accrues from the end of treatment.

Foreign Objects - one year from discovery if insufficient time under regular rules.

Question 14

What is and is not considered a foreign object for medical malpractice SOL exception?

Answer 14

A “foreign object” is something the doctor did not intend to leave behind, e.g. temporary surgical clamps, sponges, scalpels.

The following three things are NOT foreign objects:

Chemical substance (e.g. medicine, steroids)

Prosthetic device (e.g. plastic hip joint)

Fixation device: an item that the doctor deliberately placed in the body with the intent that it remain to serve some continuing treatment function (e.g. internal sutures, pacemaker, prophylactic diaphragm).

Question 15

What is the statute of limitations for wrongful death claims?

Answer 15

It is 2 years and it accrues from date of death. The plaintiff must also show that statute of limitations on decdent’s underlying personal injury claim had not expired on date of death.

Question 16

What is the statute of limitations for personal injury and property damage claims against municipal defendants?

Answer 16

It is 1 year and 90 days and it accrues from the day of the accident. Plaintiff must show that she served notice of claim on municipal defendant within 90 days of the accident.

Question 17

What is the statute of limitations for a survival claim?

Answer 17

If the plaintiff dies before the SOL expires, the estate representative gets whichever is longer: the time remaining on the applicable SOL running from the usual date of accrual, or 1 yeary from plaintiff’s death.

Question 18

What is the statute of limitations for intentional torts to the person?

Answer 18

It is 1 year.

Question 19

What is the statute of limitations for Article 78 proceedings?

Answer 19

It is 4 months.

Question 20

What are the statute of limitations in a products liability action?

Answer 20

For negligence and strict liability, it is 3 years from the date of injury as to all defendants in the chain of distribution.

For breach of warranty, it falls under the UCC, so there is a 4-year limitation which runs from date of delivery of the product.

Question 21

What are the rules for tolling during the defendant’s absence from NY?

Answer 21

If defendant is not in NY when cause of action accrues, the SOL does not begin to run until the defendant comes to NY. If the Defendant is in NY when the cause of action accrues and then thereafter leaves NY and is continuously absent for at least 4 months, then toll applies to entire period of absence.

SOL stops running while defendant is absent from NY and re-starts when the defendant returns NY.

UNLESS (applies to both situations): toll for absence is not available if plaintiff has a basis of personal jurisdiction that would allow you to serve process.

Question 22

What are the rules for tolling when the plaintiff has a legal disability?

Answer 22

If the plaintiff is under 18 or insane, they may sue within the regular SOL thorough a competent adult representative, but they also get the benefit of a toll. The SOL is tolled until the disability ends, i.e. until infant reaches age of 18 or until insanity clears up.

When the disability ends, if the original SOL was 3 years or more, the plaintiff gets, whichever is longer, either:

a. The usual SOL running from the usual date of accrual OR
b. 3 years accruing from the date the disability ends.

If the original SOL was less than 3 years, then the plaintiff gets the specified SOL when the disability ends.

There is an outside limit for the commencement of an action of 10 years from the date of accrual for medical malpractice claims and for any claims of insane plaintiffs.

Question 23

What happens if a potential defendant dies before the statute of limitation expires?

Answer 23

If a potential defendant dies at any time before the SOL expires, 18 months are always added to the relevant limitations period (regardless of whether plaintiff needs extra time).

Question 24

What is the 6 month grace period?

Answer 24

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

But there are 4 types of prior dismissals as to which the 6 month grace period is not applicable:

1. Dismissal on the merits (res judicata)
2. Voluntary discontinuance by plaintiff
3. Based on plaintiff’s neglect to prosecute - there is a general pattern of delay
4. lack of personal jurisdiction.

Question 25

What is the “borowing statute”?

Answer 25

If the cause of action arises outside of NY, a choice of law problem is presented if the SOL of the other state is different from that of NY. The borrowing statute is intended to prevent forum-shopping by non-resident plaintiffs seeking a longer SOL in NY.

1. If plaintiff was a non-resident of NY when the out of state claim arose, the NY court will apply whichever state’s SOL is shorter.
2. If plaintiff was a NY resident when the out of state claim arose, the NY courts will apply the NY SOL.