Statute of Limitations

Question 1

What is the Statute of Limitations (S/L) defense?

Answer 1

Affirmative defense based on passage of time, to be raised by D

Question 2

When does the S/L begin to run?

Answer 2

When cause of action accrues—when injury occurs

Question 3

When must you commence a s/l action?

Answer 3

By filing process no later than last day of period (start period by starting the next day after event) Remember for any procedural act occurring on Saturday, Sunday or public holiday you get to the end of the next business day.

Question 4

What is the Medical Malpractice S/L?

Answer 4

2.5 years beginning on date of injury

Discovery of malpractice generally irrelevant

Question 5

What are the two exceptions to medical malpractice?

Answer 5

Continuous treatment rule and foreign object rule

Question 6

Explain the continuous treatment rule

Answer 6

2.5 years running from end of continuous treatment for same condition giving rise to malpractice (series of misdiagnoses is not continuous treatment because no treatment)

Question 7

Explain the foreign object rule

Answer 7

When Dr responsible for introducing foreign object into patient’s body and leaving it, LONGER of 2.5 years from operation OR 1 year from date P discovers or should have discovered object (not foreign objects: chemicals, prosthetics, fixation device)

Question 8

What is the other professionals such as architects, engineers, accountants, attorneys not brokers or securities analysts S/L?

Answer 8

For financial loss it is 3 years running from completion of particular services regardless of lack of awareness

Bodily injury is 3 years from bodily injury.

When the action is brought 10 years after on an architect or engineer, need a 90 day notice and pre-action discovery. P must show substantial basis/proximate cause

Question 9

What is the municipal tort S/L?

Answer 9

Action for personal injury or property damage against government subdivision of state: 1 year 90 days

Must serve notice of claim on municipal D within 90 days of accident or dismissed for failure to state cause of action (You can make a motion to extend this)

Question 10

What is the product liability negligence S/L?

Answer 10

3 years from date of injury against all D’s in chain of distribution

Question 11

What is the strict products liability S/L?

Answer 11

3 years from date of injury against all D’s in chain of distribution

Question 12

What is the Breach of warranty S/L?

Answer 12

4 years from date D delivered product

Question 13

What is the indemnity/contribution S/L?

Answer 13

6 years from date of actual payment of judgment

Question 14

What is the toxic substance S/L?

Answer 14

3 years from EARLIER of discovery of injury by P or date injury should have been discovered with reasonable diligence. FOR SUIT against manufacturer, distributor, supplier

Question 15

If D is not in NY when cause of action accrues…

Answer 15

SOL does not begin to run until D comes to NY unless you have basis for PJ over D so you could serve D outside NY

Question 16

If D is in NY when cause of action accrues but leaves thereafter for at least 4 continuous months…

Answer 16

SOL stops running for entire period of absence UNLESS P has basis for PJ over D so could serve D outside NY

Question 17

When infancy or insanity ends, how long does P have to sue?

Answer 17

If SOL 3 years or more, LONGER of 3 years from end of disability OR original SOL from date of accrual.

If SOL less than 3 years, period of original SOL from when disability ends

10 years from accrual MAX for infancy medmal and insanity

Question 18

What is the S/L on bringing an action that a P could have brought if still alive?

Answer 18

not limited to torts and includes all damages incurred by P prior to death

SOL: LONGER of time remaining on SOL OR 1 year from P’s death

Question 19

What is the S/L on bringing a wrongful death claim?

Answer 19

Only for tort claim for pecuniary damages (not GD of pain/suffering) of decedent’s statutory distributees

SOL: 2 years from date of death, but decedent must have had timely cause of action at death

Question 20

What if the D dies before the S/L expires?

Answer 20

Get 18 months added.

Question 21

What is the borrowing statute?

Answer 21

Borrowing statute If P NY resident when out-of-state claim arose, NY will apply its own SOL

If P non-resident NY when out-of-state claim arose, NY will apply shorter SOL

Question 22

If NY action timely commenced, dismissed before trial, and then SOL expired or less than 6 months remaining…

Answer 22

P gets 6 months from date of dismissal to refile same action and serve process on same D

EXCEPT

1. Prior dismissal on merits (res judicata)
2. Voluntary discontinuance by P
3. Dismissal for neglect to prosecute
4. Lack of personal jurisdiction

For a dismissal for SMJ in Fed Court (say lack diversity) get the 6 month extension.