Statute of Limitations Flashcards
What is the procedural status of the statute of limitations in NY?
Affirmative defense (must be raised by D)
When does the SoL begin to run?
SoL begins to run when the cause of action “accrues” (i.e., when the injury first OCCURS)
What is the usual accrual rule?
When injury first occurs
(discovery rule generally used in NY)
How is the SoL satisfied?
To satisfy the SoL, the mction MUST BE commenced no later than the last day of the prescribed limitations period
(i.e., the filing must be mae with the clerk on or before the day before the last day of the SoL.)
What constitutes commencement for the SoL?
Commencement means filing of process, i.e.,
Summons and complaint, OR
Summons with notice
How is the running of the SoL computed?
To compute the running of the SoL, begin counting from the day after the triggering event
(e.g., If Breach on March 1: start running on March 2… the practical result is that the last available date to commence an action is an anniversary of the event)
What are the limitations periods? (12)
- Art. 78 proceedings: 4 months
- Intentional torts to the person: 1 year
- Personal injury and property damage claims against municipal Ds: 1 year + 90 days
- Wrongful death: 2 years
- Medical malpractice: 2.5 years
- Personal injury based on negligence/Property damage/non-medical malpractice: 3 years
- Contracts (UCC Art. 2): 4 years
- Action by a victim of a rape-related felony: 5 years
- Contracts (non-UCC Art. 2)/Indemnity and contribution/Fraud/Equity actions: 6 years
- Action by a crime victim against a convicted D for any crime: 7 years
- Action to recover realty/Action by crime victim against convicted D for a serious crime: 10 years
- Action on judgment: 20 years
What happens if a time period ends on a non-business day?
Extend until the next business day
To whom does the medmal SoL apply?
Doctors; dentists; podiatrists; nurses; hospitals (Includes vicarious liability of hospital)
What is the SoL for medmal?
2.5 years
When do medmal claims accrue?
When injury happens (NOT discovery of injury!)
What is the SoL for negligent hiring of a doctor?
Ordinary negligence claim—3 years
What are the two exceptions to the usual medmal accrual rule
- Continuous Treatment Rule
- Foreign Object Rule
(Both are narrowly applied)
What is the continuous treatment rule?
If D continues to treat the patient after an operation for the EXACT SAME medical condition that gave rise to the malpractice, then the claim accrues at the end of the continuous treatment
What is the foreign object rule?
If D is responsible for introducing a foreign object into P body and leaves the object behind, P gets the longer of:
- 2.5 years from injury, OR
- 1 yr from date P discovered or should have discovered the object with reasonable diligence
to bring the action.
What constitutes a foreign object?
Something doctor did not intend to leave behind
By statute, what things are NOT foreign objects? (3)
- Chemical substance (medicine; steroids)
- Prosthetic device (plastic hip joint)
- Fixation device (item left intentionally so that it would serve a continuing treatment function)
(Discovery rule unavailable in these cases; SoL period is 2.5 years, beginning from when the object(s) was/were left inside, i.e., the date of malpractice)
What is the interaction of the SoL when multiple claims are asserted?
Each claim works on its own SoL
What constitutes non-medical professional malpractice?
Claims for economic injury done by members of a learned professions
(Learned professions are those requiring special degree/license/ethics code, e.g., architects, engineers, accountants, attorneys)
What is the SoL for economic harm from nonmedical professional malpractice?
3 years (supersedes all other applicable periods, e.g., breach of contract)
Accrues at date of completion of services, regardless of ignorance of harm (i.e., for architect/engineer, 3 yrs from completion of the building; for accountant/atty, 3 yrs from delivery of work product to client)
What is the SoL for bodily injury from nonmedical professional malpractice?
3 years (supersedes all other applicable periods)
Accrues at date of injury, regardless of when services completed
What constitutes a non-medical professional?
Learned profession (e.g., Attorneys, accountants, engineers, architects)
What special procedures apply in personal injury actions against engineers and architects when action is brought more than 10 years after the building was completed?
(i.e., to compensate for problems of stale evidence)
If the building project was completed MORE THAN 10 years before P brings an action against his architect or engineer, THEN:
- P must serve a notice of claim at least 90 days before suit;
- P may obtain pre-action discovery from the potential D during the 90 day waiting period; AND
- If D moves for summary judgment, the burden is on P to make immediate evidentiary showing of “substantial basis” to believe D’s negligence was proximate cause of injury
What is municipal tort liability?
Municipal liability refers to claims against government SUB-DIVISIONS (i.e., county, city, town, school district, or municipal hospital); does not refer to claims against state!
What are the special rules for municipal tort liability?
- For personal injury or property damage (including medmal), municipal tort SoL is 1 year + 90 days from date of accident (supersedes all other periods)
- P must serve a notice of claim on the muni defendant no later than 90 days from the date of the accident.
(N.B. P must wait 30 days after notice of claim on muni D before commencing action)
What is the notice of claim requirement for municipal defendants?
Must serve notice no later than 90 days from date of the accident (This does not commence the action)
(N.B. Absent this notice, D may get action dismissed for failure to state a cause of action!)
What is the SoL and accrual rule for each products liability theory?
(N/SPL/BOW)
- NEGLIGENCE: 3 year SoL; from the date of P’s injury; as against all potential Ds in the chain of distribution.
- STRICT PRODUCTS LIABILITY: Same as negligence
- BREACH OF WARRANTY: 4 year SoL (UCC); from the date of the product’s delivery by the D against whom action asserted
What is the SoL for indemnity and contribution claims?
6 year SoL; Runs from date of actual (final?) payment of judgment for which indemnity/contribution is sought
What is the accrual rule for exposure to toxic substances?
Suit against manufacturer, distributor, or supplier of the toxic substance(s) must be brought within 3 years, running from the EARLIER OF:
- P’s actual discovery of the injury (i.e., P aware of symptoms) OR
- Date when injury should have been discovered with reasonable diligence
What constitutes a toxic substance?
Any inherently harmful toxin that has latent or slow-developing effects (e.g., asbestos, insecticides, HIV-virus, etc)
What constitutes exposure to a toxic substance?
Any sort of assimilation into one’s body or property
What type of claim is explicitly excluded from toxic torts?
Medmal (claims against doctors, rather than, say, manufacturers)
What is a toll?
A “time-out” – the toll keeps the SoL from running during a period of time, which extends it
What are the four general tolls?
- D’s absence
- P’s infancy or insanity
- Death
- 6 month dismissal grace period
When is a claim tolled for D’s absence? (2 scenarios)
- IF D is not in NY when action accrues, SoL tolled until D comes to NY
- IF D is in NY when action accrues, but leaves for at least 4 continuous months, SoL tolled during entire period of absence
(BUT see exception)
What is the exception to tolling for D’s absence?
If P has a basis of PJ over absent D, such that valid process COULD be served on D while outside of NY, then toll for absence is not available AT ALL!
(i.e. We don’t want to allow the SoL to be tolled if NY P could have gotten jurisdiction)
(*Upshot: P is rarely entitled to an absence toll)
When is a claim tolled for P infancy or insanity?
(i.e., When P has a “legal disability”)
If P is an infant (i.e., under age 18) or insane when claim accrues, SoL is tolled until disability ends (i.e., P reaches age 18 or is no longer mentally incompetent)
What constitutes insanity for tolling?
Any mental disorder that causes an overall inability to function in society
(P does NOT need to have been certified insane)
What are the rules for determining the available time to bring an action that has been tolled due to P’s infancy or insanity?
- IF original SoL was 3 yrs or more: P has longer of (i) original period running from usual date of accrual, or (ii) 3 yrs from date disability ends to sue.
- IF original SoL less than 3 yrs: Specified statutory period from date disability ends.
When does the outer limit on tolling for P infancy or insanity apply?
- When relying on toll for infancy, a medmal claim MUST be commenced no later than 10 years from date of accrual.
- When relying on toll for insanity, any claim of any sort MUST be brought no later than 10 years from date of accrual
When multiple tolls are available, which applies?
The most P friendly
(i.e., If P has two causes of action that have multiple tolls and rely on the same facts, the P can apply the longer of them to bring both SoLs)
What are the types of tolling for death?
For potential plaintiffs: Must distinguish Survivial claims from Wrongful death claims…
What is a survival claim?
Any claim the decedent could have brought if they had lived
Recoverable damages include all damages suffered by decedent before death (incl pain and suffering)
What is a wrongful death claim?
Exclusively tort claim
Allows (only) pecuniary loss for decedents statutory distributees (no pain and suffering of anybody)
What is the SoL for survival claims?
If P dies before SoL expires: longer of (i) applicable period from usual accrual OR (ii) 1 yr from P’s death
What is the SoL for wrongful death claims?
2 yrs from date of death IF decedent had a timely personal injury claim at time of death
What is the SoL for claims tolled due to death of D?
If D dies before SoL runs, always add 18 months to the SoL
(e.g., If A hits B in a car, giving B’s estate a claim for negligence, and then A dies before B’s SoL runs, tack on 18 additional months to B’s SoL.)
When is rule for tolling pursuant to the 6-month grace period?
IF a NY action is:
- Timely commenced BUT
- Thereafter dismissed before trial AND
- at the time of dismissal the SoL had less than 6 months remaining (or had expired),
P gets an additional 6 months from date of dismissal to re-file and re-serve process on same D.
What are the four exceptions to the 6-month grace period tolling?
- Dismissal on merits;
- Voluntary discontinuance by P;
- Dismissal based on P neglect to prosecute, IF neglect to prosecute consists of general pattern of delay; OR
- Dismissal for lack of PJ (incl improper service; lack of basis; improper form of summons) (lack of SMJ does get the grace period)
What is the borrowing statute?
IF the cause of action arises OUTSIDE of NY, a choice of law problem exists if the other state’s SoL for that action is different than NY’s. The borrowing statute prevents forum-shopping by allowing non-resident Ps to seek longer SoL in NY.
What is the analysis for determining SoL when borrowing statute applies?
- IF P was a non-resident of NY when claim arose AND SoL of state where claim arose is shorter: P gets other state’s SoL.
- IF P was a non-resident of NY when claim arose BUT SoL of NY is shorter: P gets NY SoL.
- IF P was NY resident when claim arose: Always apply NY SoL
(i. e., Goal here is to limit length of SoL to prevent P’s “shopping” for longer SoLs)
