When the claim accrues: Generally, the claim accrues when the π's INJURY occurs
When is legal action Commenced?
Supreme Court: When the π FILES PROCESS (Summons and Complaint (or Notice)) with the clerk of the court
Justice Courts: When π SERVES PROCESS on the ∆.
S/L for Medical Malpractice?
Normal: 2 1/2 years from the date of INJURY
Continuous treatment exception: 2 1/2 years from end of continuous treatment for the same medical condition that gave rise to malpractice (note that a misdiagnosis is not part of "continuous treatment," rather it is a separate act of injury).
Foreign objects exception: (i) 2 1/2 years from the date of operation OR (ii) 1 year from the date of discovery of facts that would have lead to discovery of the foreign object
S/L for other "Professional" Malpractice?
Limitations Period: 3 years from TERMINATION of services that gave rise to malpractice
Meaning of "Professional": Member of a learned profession. Includes architects, engineers, accountants, attorneys. Does not include insurance brokers, securities analysts, and plumbers.
S/L on Architect's Malpractice?
Client: 3 years from the date services are completed.
Personal injuries: 3 years from the date of injury
Personal injuries occurring ≥ 10 years of completion: 3 years from date of injury AND must also provide (i) 90-days notice of suit in advance of filing claim, and (ii) "substantial basis" to believe that ∆'s negligence was the proximate cause of π's injuries.
S/L for torts by Municipalities?
Statute of Limitations: Must commence suit within ONE-YEAR and 90-DAYS from date of claim accrual (injury) AND
Notice of Claim Required: CONDITION PRECEDENT to suit. Must provide municipality ADVANCED NOTICE of suit within 90-DAYS of accrual of claim. Note: if the 90-day period has passed, π can make a motion to serve notice out of time
S/L for Products Liability?
Negligence: 3 years from date of injury
Strict productions liability: 3 years from date of injury
Breach of Warranty: 4 years from date ∆ delivered product
S/L for Indemnity and Contribution?
6 years from date of actual payment of judgment for which indemnity or contribution is sought
3 years S/L begins to run on the earlier of—
date of actual discovery of injury, or
date injury should have been discovered with reasonable diligence
Toll for ∆'s absence from NY state?
1) Absent when COA accrues: S/L does not begin running until ∆ returns to NY, OR
2) Continuously absent for ≥ 4 months: S/L tolled for entire period of absence
EXCEPTION: Applies to both A & B above: No tolling if π has a basis for PJ over absent ∆ such that ∆ could be served with process outside NY (e.g., long-arm statute)
Toll for π's infancy or insanity (legal disability)
Rule: S/L is tolled until legal disability clears (e.g., turns 18 or is no longer insane)
Original S/L ≥ 3 years: S/L expires on the later of (i) 3 years from end of disability, or (ii) statutory period measured from accrual
Original S/L < 3 years: Original S/L starts running from the end of legal disability
Outside limit of 10 years in what 2 situations?
Suit for medical malpractice tolled for infancy must be commenced within 10 years from date of accrual
Suits tolled for insanity must be commenced within 10 years from accrual, regardless of COA (whether for medical malpractice or otherwise)
TOLLS FOR DEATH OF POTENTIAL π's
When must an action be commenced for
1) Wrongful death claim?
2) Survival claim?
1) TWO-YEARS from date of death. Must be shown that S/L on underlying claim (e.g., 3 years for negligence) is still open.
2) LONGER OF
time remaining on S/L for underlying claim, OR
1 YEAR from date of π's death
EXTENSION OF TIME FOR DEATH OF POTENTIAL ∆s
By how long is the S/L extended?
18 MONTHS are always added to relevant limitations period where potential ∆ dies AT ANY TIME before the S/L expires
6-MONTHS GRACE PERIOD
1) What is it?
2) When is it available?
3) When is it NOT available?
1) PLAINTIFF GETS 6 MONTHS from date of dismissal to re-file same action and serve process on same ∆
2) AVAILABLE WHEN
Case is timely commenced, but
Dismissed before trial, and
S/L has expired or has less than 6 months remaining at time of dismissal
3) NOT AVAILABLE WHEN
Dismissal was on merits (claim preclusion)
Case voluntarily discontinued by π
Dismissed for neglect to prosecute (note: court must make finding on record of pattern of neglect and delay)
Lack of personal jurisdiction***
***dismissal for lack of subject matter jurisdiction is entitled to the 6-month extension
If a COA arises outside of NY, which state's S/L will a New York court apply? (hint: different treatment for π's that are non-residents)
1) π was NON-RESIDENT of NY when out-of-state claim arose—use the shorter S/L
2) π was NY RESIDENT when out-of-state claim arose—apply NY S/L
***borrowing statute based on residency, not domicile