Statute of Limitations: Tolling, Grace Period, and Borrowing Statute

Question 1

If D is away from NY when the cause of action accrues, when does the S/L begin to run?

Answer 1

When D comes back to NY.

Question 2

If D is in NY when the cause of action accrues, but leaves NY, what happens to the S/L?

Answer 2

If D is continuously absent from NY for 4 or more months, the S/L is tolled for his period of absence.

Question 3

If D is not in NY but P is allowed to serve D in another state - is the S/L tolled during D’s absence?

Answer 3

No - if P can serve, he doesn’t get a break for D’s absence.

Question 4

What is the tolling rule for infants and insane people?

Answer 4

Infants and insane people can sue within the regular S/L period through a competent adult representative, but the S/L will be tolled until:

• If original S/L is 3+ years: the longer of that period or 3 years after they turn 18/become sane.
• If original S/L is <3 years: when they turn 18 (or become sane), the clock begins to run.

Question 5

Is there a cap on tolling for infants and adults?

Answer 5

Yes - 10 years for medical malpractice (subject to the continuous treatment exception)

and people who are insane always have a 10 year cap on all their claims.

Question 6

What is the tolling rule for a survival claim?

Answer 6

1 year, running from the LONGER of

• the date of P’s death, or
• the remaining time on the applicable S/L

Question 7

What is the tolling rule for wrongful death actions?

Answer 7

2 years, running from the date of death, so long as decedent had a timely cause of action at death.

Question 8

What is the tolling rule when a defendant dies?

Answer 8

18 months is always added if D dies before the S/L has run.

Question 9

What happens if P timely commences an action, but it is dismissed before trial, and the S/L has expired (or has less than 6 months left)?

Answer 9

P will get an extra 6 months extended to the end of the S/L to cure the defect and re-file.

Question 10

What are the 4 exceptions to getting a grace period of 6 months when your case has been dismissed and there is less than 6 months remaining on your S/L?

Answer 10

1. dismissal on the merits
2. dismissal by P’s voluntary discontinuance
3. dismissal b/c of P’s neglect to prosecute (because of a general pattern of delay - not just one instance)
4. dismissal for lack of personal jurisdiction
   (defect in summons, service, or no long arm for an out-of-state defendant)

Question 11

What is NY’s borrowing statute?

Answer 11

If D is not a NY resident, and the court has to choose between S/Ls of two different states - it will compare and give plaintiff the shorter of the NY or out of state S/L.