Statutes of Limitations

Question 1

What is the SOL for indemnity and contribution?

Answer 1

SOL = 6yrs running from the date of actual payment of judgment for which indemnity or contribution is sought

Question 2

When does the SOL begin to run?

Answer 2

When the COA “accrues” (i.e. when the injury first occurs)

SOL is NOT measured from the date that the π DISCOVERS the injury (i.e. it runs even if the π is unaware of the injury)

Question 3

What actions have a SOL of 3 - 6 yrs?

Answer 3

3 YEARS

- Personal injury from negligence or strict products liability (accrual from date of injury UNLESStoxic substance, then it's from date of discovery)
- Property damages (including conversion & replevin)
- Non-medical professional malpractice 

4 YEARS
- Contracts governed by UCC Article 2 (Sales) (accrual from tender of delivery)

5 YEARS
- Action by victim of rape-related felony: accrural from date of crime (NOTE: if perpetrator is prosecuted, victim gets EXTRA 5 years from termination of criminal proceedings notwithstanding outcome of trial)

6 YEARS

- Contract breaches (express or implied; NOT UCC Art. 2) (accrual from date of breach regardless of knowledge of breach)
- Indemnity or contribution: accural from date of payment for which indemnity/contribution is sought
- Fraud: π may sue within 6 yrs. of commission OR 2 years of discovery, whichever is longer
- Equity actions (recission, reformation, accounting)

Question 4

What actions have a SOL of 7 - 20 yrs?

Answer 4

7 YEARS
- Action by crime victim against convicted ∆ for ANY crime: accrual from date of crime

10 YEARS

- Action to recover realty: same pd as adverse possession
- Action by crime victim against convicted ∆ for a SERIOUS crime: accural from date of conviction (NOTE: victim may also sue for damages for up to 3 yrs from discover of ∆'s receipt of money/property from any source)

20 YEARS
- Action on judgment

Question 5

What are the tolling rules if a potential ∆ dies?

Answer 5

If potential ∆ dies AT ANY TIME before the SOL expires, 18 months (1.5 years) are always added to the relevant SOL period (regardless of whether π needs the extra time)

Question 6

How can a π get a 6 month grace period for SOL purposes?

Answer 6

If an action is timely commenced BUT dismissed before trial & at the time of dismissal SOL has EITHER expired OR has less than 6 months remaining → π gets 6 months from the date of dismissal to re-file the same action & serve process on ∆

4 EXCEPTIONS where grace period is NOT applicable…

- dismissal on the merits
- voluntary discontinuance by the π (dropped the suit)
- π neglects to prosecute(if it consisted of a general pattern of delay; BUT NOT merely one act)
- dismissal for lack of personal jurisdiction (NOTE: if dismissed for lack of subject matter jurisdiction, then π IS entitled to 6 month grace period to refile)

Question 7

What is the SOL for personal injury or property damage against a government subdivision of the state (county, city, town, school district, or municipal hospital)?

Answer 7

The SOL is 1 year, 90 days from the date of the accident

Notice of claim requirement: necessary to commence action against municipality (otherwise the action will be dismissed as “failure to state COA”):

1) π must serve a notice of claim on the potential municipal ∆ within90 days from the date of the accident (NOTE: service of the notice is NOT a commencement of the action)
2) After service of notice, the π must wait 30 days and THEN commence the action against the municipality
3) The complaint must plead compliance with the notice of claim requirement

Question 8

How is the SOL measured in a toxic tort case?

Answer 8

SOL = 3yrs against the manufacturer, distributor or supplier of the toxic substance running from the date of discovery ORshould have discovered(with reasonable diligence)the injury

Toxic substance exposure= any inherently harmful toxin that has latent or slow-developing effects (e.g. asbestos, leaking petroleum, etc) assimilated into π’sperson or property

NOTE: the toxic tort discovery rule does NOT apply to claims of medical malpractice (toxic tort cases are against the manufacturer/distributor of the toxic substance)

Question 9

How do you compute the SOL period?

Answer 9

To compute SOL (and ANY OTHER TIME PERIOD IN CPLR), exclude the day upon which the triggering even occurs AND begin counting the next day

Practically: SOL end dates always fall on “anniversary date” of the injury in question (e.g. if injury happens on June 1, 2012 with a 1 year SOL, the last day for timely commencement = June 1, 2013)

NOTE: if the LAST DAY of the SOL period falls on a

(i) Saturday; 
(ii) Sunday; or 
(iii) public holiday, then π gets until end of the next business day to commence action

Question 10

What is the SOL for medical malpractice (doctors, dentists, podiatrists, nurses and hospitals)?

Answer 10

General rule: the SOL period is 2.5 yrs, accruing from date of injury(the date of π’s discovery of the malpratice is IRRELEVANT)

** NOTE: if π is suing hospital for vicarous liability (respondeat superior), the SOL is 2.5 yrs, BUT if π is suing hospital for negligent hiring, then the SOL is 3 yrs (personal injury damages)

EXCEPTIONS:

Continuous Treatment Rule: after malpractice, if a physician continues to treat the patient after an operation FOR THE EXACT SAME CONDITION, then SOL is 2.5 yrs, accruing from the end of treament

Foreign Object Rule: if the physician was responsible for introducing a foreign object into patient’s body (and leaves it behind), π gets SOL of (i) 2.5 yrs from date of operation; OR (ii) 1 year from the date of discovery (or should have discovered), WHICHEVER IS LONGER

Foreign object = something the doctor didnt intend to leave behind (e.g. surgical clamps, scalpels, etc)

Foreign object ≠ (i) chemical substance (medicine); (ii) prosthetic device (plastic hip joint); (iii) fixation device (pacemaker, internal sutures, etc)&raquo_space; SOL is thus 2.5 yrs from malpractice (not discovery)

Question 11

What is the “borrowing statute”?

Answer 11

When the COA arises outside of NY a choice of law problem occurs if SOL of the other state is different from NY

The “borrowing statute” is desiged to prevent forum shopping by non-resident πs seeking a longer SOL in NY

Rules:

1) If π was a non-resident when out-of-state claim arose → if SOL in state where COA arose is shorter, NY will apply it; otherwise NY SOL applies (which would be shorter)
2) If π was resident when out-of-state claim arose→will always apply NY SOL (regardless of whether the other state’s SOL is shorter/longer)

Question 12

What are the tolling rules for infants or the insane?

Answer 12

Infants (i.e. under 18) OR insane πsMAY sue within regular SOL (with competent adult representative) BUT they could get a toll until the disability ends (i.e. infant reaching 18 or insantiy clears up)

Once the disability ends…

If SOL for COA was 3+ yrs.: π gets the LONGER of (i) the usual SOL pd running from usual date of accrual; OR (ii) 3 yrs from date of disability ending

If SOL for COA was: π gets specified statutory pd measured from the date of disability ending

• *NOTE: there is a 10yr ABSOLUTE ltd on SOL from original accrual
  
  • Claims of insane πs barred after 10 years
  • Claims for medical malpracticebarred after 10 years (for infants and insane πs)

** ALSO NOTE: for medical malpractice, continuous treatment toll and legal disability toll are separate so if applicable then run separately to see what’s best

Question 13

How does a π satisfy the SOL requirement?

Answer 13

To satisfy the SOL, the COA must be “commenced” no later than the last day of the prescribed pd of limitations

Commencement consists of “filing process” (process = summons and complaint OR summons with notice), which must be filed with the COUNTY clerk (the clerk for the court)

Question 14

What are the tolling rules for absent ∆s?

Answer 14

1) If ∆ not in NY when COA accrues:SOL does not begin to run (i.e. it’s tolled) until he returns to NY
2) If ∆ in NY when COA accrues BUT thereafter leaves NY AND is continuously absent for at least 4 months:SOL tolls during time absent

EXCEPTION: no tolling if π has a basis of personal jurisdictionover absent ∆ that would allow process to be validly served (NOTE: this is often the case, so usually absence tolling isn’t available)

E.g.: Texan comes to NY, punches someone & goes back to Texas. No tolling because long arm available because tortious act in NY (π has personal jurisdiction).

Question 15

What is the SOL for products liability claims?

Answer 15

Depends on the tort theory…

1) Negligence:3 years running from date from injury as against “all D’s in the chain of distribution”
2) Strict Products Liability: same as negligence (3 yrs)

3) Breach of Warranty (UCC Art. 2 sales): 4 yearsfrom date of delivery of productas against whom the warranty claim is asserted

Question 16

What actions have a SOL of 0 - 2.5 yrs?

Answer 16

4 MONTHS
- CPLR Article 78 proceedings (judicial review of NY state/local gov’t administrative action)

1 YEAR
- Intentional torts to the person (e.g. assualt, battery, false imprisonment)

1 YEAR + 90 DAYS
- Personal injury/property damage claims against municipal ∆s (NOTE: only runs provided there is notice to muni ∆ w/in 90 days of accident)

2 YEARS
- Wrongful death: runs fromdate of death AS LONG AS can also be shown that decedent’s personal injury claim had not expired on date of death NOTE: If criminal proceeding is brought against ∆, executor gets optional & independent 1 year from termination of criminal proceeding (TOTALLY INDEPENDENT FROM OTHER RUNNING OF SOL)

2. 5 YEARS
   
   • Medical, dental & podiatric malpractice:from date of malpractice injuryUNLESS continuous treatment (end of treatment) OR foreign objects (1 year from discovery)

Question 17

What is the SOL for non-medical malpractice (architects, engineers, accountants, attorneys)?

Answer 17

1) if client has financial loss: there is an EXCLUSIVE (supercedes all other relevant SOL) 3 yr SOL, which applies REGARDLESS of whether the claims are based on tort or breach of K

** The SOL begins to run when the services are completed, REGARDLESS of the π’s lack of awareness of malpractice

** For architect or engineer, the 3 year pd begins to run from the completion of building

** For accountant or attorney, the 3 year pd begins to run from the delivery of work product to client

2) If client has bodily injury: there is a 3 yr SOL running from the date of the bodily injury REGARDLESS of the date of completion of the work

** NOTE: there is a special procedure for architects/engineers for COAs brought more than 10 years after the building was completed:

a) π must serve a notice of claim on the architect or engineer at least 90 days before suit;
b) π may obtain pre-action discovery from the potential ∆ during the 90-day waiting period; AND
c) After suit is commenced, if ∆ moves for summary judgment, the burden will be on π to make an immediate evidentiary showing that there is a “substantial basis” to believe that ∆’s negligent was the proximate cause of π’s injuries (i.e. there were no intervening causes like faulty maintanence)

NOTE: this SOL applies to all members of a “learned profession” (“Learned” ≠ insurance brokers; securities analysts; plumbers, etc.)

Question 18

What are the tolling rules for dead πs?

Answer 18

Depends on whether it’s a wrongful death or survival claim…

1) Survival Claim =any COA π could have brought if still alive

Damages = any incurred by π prior to death (including pain and suffering); not limited to tort damages

SOL = if claim still timely on date of death,executor gets time remaining running from date of accrual OR 1 yea. from date of death (whichever is LONGER)

2) Wrongful Death Claim =tort claim for economic (pecuniary) damages of decedent’s statutory distributees (e.g. surviving spouse, etc)

Damages = economic + punitive BUT NOT emotional suffering of distributees or π’s pain and suffering.

SOL =if claim still timely on date of death, 2yearsfrom date of death

NOTE: wrongful death actions and survival claims are often asserted in ONE action, but you have to apply different SOL rules