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50 Cards in this Set
- Front
- Back
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Art 78 Proceedings
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4 months
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Intentional Torts
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1 year
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Professional Malpractice, excluding Medical
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3 years
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When does the SOL for professional malpractice begin to run?
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From termination of date of services
(completion of building, delivery of work product) |
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Who is included in professional malpractice?
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architects, accountants, engineers, attorneys
not insurance brokers |
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What if a personal injury claim for professional malpractice arises more than 10 years after building is completed?
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(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. |
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UCC Art 2
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4 years
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Toxic exposure
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3 years of discovery of the exposure
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Indemnity and contribution
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6 years
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Crime
(against convicted defendant) |
7 years
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Serious crime
(c/a against convicted defendant) |
10 years
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Realty
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10 years
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Action on a judgment
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20 years
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Medical malpractice
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2 years, 6 months
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Who does the medical malpractice SOL apply to?
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Doctors, nurses, podiatrists, dentists
(hospitals also but only if the c/a is based on medical malpractice, not some other tort) |
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When does the SOL for medical malpractice begin to run?
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From the date of the injury.
(2.5 years) |
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Property damage
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3 years
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What if a hospital is sued for negligent hiring of an incompetent staff?
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3 years - use negligence SOL because the c/a is for hospital's own negligence, not the medical malpractice it caused
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What if a hospital is sued under respondeat superior for staff's mistakes?
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2.5 years medical malpractice SOL
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What is the exception to the 2.5 year medical malpractice SOL?
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Continuous treatment
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What is the continuous treatment exception?
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SOL for med mal begins on the last day of continuous treatment for the exact medical condition that gave rise to the c/a.
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What is not 'treatment' for purposes of the continuous treatment exception?
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(1) A misdiagnosis.
(2) Treatment unrelated to the medical condition underlying the c/a. |
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What is the SOL when a foreign object is left in a patient's body?
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The longer of:
(1) 2.5 years from the date of operation. (2) 1 year from P's discovery or reasonably should have discovered |
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How many potential causes of action does a products liability P have?
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(1) Negligence: 3 years
(2) Strict products liability: 3 years (3) Breach of warranty: 4 years from date D delivered the product |
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What is the date of delivery of product for a retailer?
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The date of sale.
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When do indemnity and contribution SOLs begin to run?
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From the date of ACTUAL PAYMENT of the judgment
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When does the SOL toll?
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(1) Ds absence
(2) P infancy or insanity. (3) Death (4) Six month grace period for dismissal |
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How long must D be absent for toll to apply?
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At least four months.
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Who is insane for SOL tolling?
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Anyone with a mental disorder that causes an inability to function in society. Need not be adjudicated incompetent or have a guardian.
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What might prevent tolling of SOL for Ds absence?
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If the P can get personal jurisdiction some other way, like long-arm, the SOL does not toll for Ds absence.
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When disability ends how long does P have to sue?
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(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 |
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Are there any restrictions to the SOL toll for infancy or insanity?
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(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. |
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How does the SOL run / toll for a med mal claim by an infant P who was continuously treated for the same condition?
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The toll for infancy and toll for continuous treatment run concurrently.
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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?
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July 15 2008. The two tolls do not add up, infant has to bring within 10 years.
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Jan 10 2000 med mal on 3 year old. Continuous treatment until Jan 10 2012. When does SOL expire?
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July 10 1012. Continuous treatment gives an extra 2.5 years after end of treatment.
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What is a survival claim?
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Any c/a P could have brought while alive.
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What is wrongful death?
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C/a in Ps family for economic damages to dead person's distributees
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What is recoverable for wrongful death?
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Lost wages,
Any other financial losses due to death, Punitive damages |
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What is not recoverable for wrongful death?
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Loss of companionship,
distributees' emotional suffering, decedent's pain and suffering before death. |
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What is the SOl for wrongful death?
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2 years
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What must be shown to succeed on wrongful death?
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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. |
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What is the SOL for survival claims?
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Time remaining on the SOL or 1 year from date of death, whichever is longer.
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How much time is added to the SOL when a potential D dies?
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18 months.
It is added on top of other tolls for Ps death and remaining time on underlying SOL. |
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Why would Ps get a grace period?
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For dismissal of c/a with SOL that has expired or has six months or less remaining.
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When does the grace period not apply?
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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. |
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What about dismissal from Federal Court?
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If not on the merits, yes, P gets 6 months grace to refile in state court.
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What is a dismissal on the merits, which prohibits 6 month grace?
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Defect in the form of the summons
Improper service of process Out of state service where long-arm jurisdiction is lacking Expiration of SOL |
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When can 6 month grace apply to dismissals from Federal Court
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Remand/ Dismissal for lack of diversity of citizenship. P gets 6 months to refile in NYS court.
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When does the 6 month grace never apply?
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Dismissal from an out-of-state court.
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What if a NY P has a c/a arising in another state?
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Always apply NY SOL
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