NYP 3

When the claim accrues: Generally, the claim accrues when the π's INJURY occurs

• 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 ∆.

• 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

• 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.

• 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.

• 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

• 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

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

• 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)

• 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

• 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)

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

18 MONTHS are always added to relevant limitations period where potential ∆ dies AT ANY TIME before the S/L expires

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

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