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50 Cards in this Set

  • Front
  • Back
Art 78 Proceedings
4 months
Intentional Torts
1 year
Professional Malpractice, excluding Medical
3 years
When does the SOL for professional malpractice begin to run?
From termination of date of services
(completion of building, delivery of work product)
Who is included in professional malpractice?
architects, accountants, engineers, attorneys

not insurance brokers
What if a personal injury claim for professional malpractice arises more than 10 years after building is completed?
(1) P must serve notice of claim on architect or enfineer at least 90 days before suit

(2) P may obtain discovery from D during 90 day waiting period.

(3) After suit is commenced, if D moves for summary judgment, the burden will be on P to make immedidate showing that there is a 'substantial basis' that D's negligence was the proximate cause of the injuries.
UCC Art 2
4 years
Toxic exposure
3 years of discovery of the exposure
Indemnity and contribution
6 years
Crime
(against convicted defendant)
7 years
Serious crime
(c/a against convicted defendant)
10 years
Realty
10 years
Action on a judgment
20 years
Medical malpractice
2 years, 6 months
Who does the medical malpractice SOL apply to?
Doctors, nurses, podiatrists, dentists

(hospitals also but only if the c/a is based on medical malpractice, not some other tort)
When does the SOL for medical malpractice begin to run?
From the date of the injury.

(2.5 years)
Property damage
3 years
What if a hospital is sued for negligent hiring of an incompetent staff?
3 years - use negligence SOL because the c/a is for hospital's own negligence, not the medical malpractice it caused
What if a hospital is sued under respondeat superior for staff's mistakes?
2.5 years medical malpractice SOL
What is the exception to the 2.5 year medical malpractice SOL?
Continuous treatment
What is the continuous treatment exception?
SOL for med mal begins on the last day of continuous treatment for the exact medical condition that gave rise to the c/a.
What is not 'treatment' for purposes of the continuous treatment exception?
(1) A misdiagnosis.

(2) Treatment unrelated to the medical condition underlying the c/a.
What is the SOL when a foreign object is left in a patient's body?
The longer of:

(1) 2.5 years from the date of operation.

(2) 1 year from P's discovery or reasonably should have discovered
How many potential causes of action does a products liability P have?
(1) Negligence: 3 years

(2) Strict products liability: 3 years

(3) Breach of warranty: 4 years from date D delivered the product
What is the date of delivery of product for a retailer?
The date of sale.
When do indemnity and contribution SOLs begin to run?
From the date of ACTUAL PAYMENT of the judgment
When does the SOL toll?
(1) Ds absence

(2) P infancy or insanity.

(3) Death

(4) Six month grace period for dismissal
How long must D be absent for toll to apply?
At least four months.
Who is insane for SOL tolling?
Anyone with a mental disorder that causes an inability to function in society. Need not be adjudicated incompetent or have a guardian.
What might prevent tolling of SOL for Ds absence?
If the P can get personal jurisdiction some other way, like long-arm, the SOL does not toll for Ds absence.
When disability ends how long does P have to sue?
(1) If SOL is more than 3 years, P gets 3 years from end of infirmity

(2) If SOL is less than three years, get the original SOL beginning at the end of infirmity
Are there any restrictions to the SOL toll for infancy or insanity?
(1) Medical malpractice c/a by infant must be brought w/i 10 years of accrual.

(2) Claims by insane Ps must be brought within 10 years of accrual.
How does the SOL run / toll for a med mal claim by an infant P who was continuously treated for the same condition?
The toll for infancy and toll for continuous treatment run concurrently.
July 15 1998 4 year old infant injured by doctor's negligence and continued to be treated by same doctor for that condition until Jan 1 2006. When does SOL expire?
July 15 2008. The two tolls do not add up, infant has to bring within 10 years.
Jan 10 2000 med mal on 3 year old. Continuous treatment until Jan 10 2012. When does SOL expire?
July 10 1012. Continuous treatment gives an extra 2.5 years after end of treatment.
What is a survival claim?
Any c/a P could have brought while alive.
What is wrongful death?
C/a in Ps family for economic damages to dead person's distributees
What is recoverable for wrongful death?
Lost wages,
Any other financial losses due to death,
Punitive damages
What is not recoverable for wrongful death?
Loss of companionship,
distributees' emotional suffering,
decedent's pain and suffering before death.
What is the SOl for wrongful death?
2 years
What must be shown to succeed on wrongful death?
That the SOL hadn't expired on the underlying c/a at the time of death.

Decedent could have brought the underlying claim herself at the time of death.
What is the SOL for survival claims?
Time remaining on the SOL or 1 year from date of death, whichever is longer.
How much time is added to the SOL when a potential D dies?
18 months.

It is added on top of other tolls for Ps death and remaining time on underlying SOL.
Why would Ps get a grace period?
For dismissal of c/a with SOL that has expired or has six months or less remaining.
When does the grace period not apply?
Dismissal on the merits:
(1) Expired SOL
(2) Voluntary discontinuance
(3) Neglect to prosecute (failure to participate in discovery/ disclosure)
(4) Lack of Personal Jurisdiction.
What about dismissal from Federal Court?
If not on the merits, yes, P gets 6 months grace to refile in state court.
What is a dismissal on the merits, which prohibits 6 month grace?
Defect in the form of the summons
Improper service of process
Out of state service where long-arm jurisdiction is lacking
Expiration of SOL
When can 6 month grace apply to dismissals from Federal Court
Remand/ Dismissal for lack of diversity of citizenship. P gets 6 months to refile in NYS court.
When does the 6 month grace never apply?
Dismissal from an out-of-state court.
What if a NY P has a c/a arising in another state?
Always apply NY SOL