Ny Prax: Statute Of Limitations

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Supreme Court Jurisdiction

Back 1

General --> Unlimited as to
(1) monetary amount of P's claim
(2) ability to assert equity claim
(3) residency of parties
(4) place where cause of action arose

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Forum Non Conveniens

Back 2

Court has DISCRETION upon motion to dismiss

If action LACKS ANY SUBSTANTIAL NEXUS to NY

Motion must be made by Defendant (court cannot dismiss sua sponte)

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Exceptions to Supreme Court's general jurisdiction

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(1) Areas of exclusive federal jurisdiction

(2) Claims for money damages in TORT or CONTRACT against the STATE of New York (can only bring these claims in the NY Court of Claims)

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NY Court of Claims

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Can only hear suits against STATE

Suits against employees, municipalities, etc. must be brought in Supreme Court

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Supreme Court has exclusive subject matter jurisdiction over

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(1) Matrimonial actions (court asked to adjudicate marital status -- divorce, separation)

(2) Judicial review of NY state and local govt administrative action

(3) Declaratory judgment action

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STATUTE OF LIMITATIONS

Back 6

an affirmative defense, based on the passage of time, to be raised by the defendant

Essay Q: what are the possible defenses?

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When S/L begins to run

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When cause of action accrues (e.g., injury occurs)

(1) Property damage action: date of injury
(2) Personal injury: date of injury
(3) Breach of contract: date of breach

NOT date the injury is discovered

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Infant injured in utero

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Child has no cause of action unless born alive

If born alive, S/L begins to run from birth

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Commencement of action (must be within S/L)

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Filing process with the clerk of the court

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Default S/L for personal injury or property damage actions

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3 years from the injury or property damage

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Default S/L for breach of contract

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6 years from the breach of contract

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Exceptions for Sat, Sun, Public holiday

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If last day for performing any procedural act falls on Saturday, Sunday or public holiday, P gets until end of next business day to perform the required act

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Medical Malprax S/L: Who Applies To?

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Doctors
Dentists
Podiatrists
Nurses
Hospitals

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Medical Malprax: S/L Period

Back 14

2.5 years from the date of malpractice

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Respondeat superior for medical malpractice S/L

Back 15

2.5 years from date of malpractice

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Tort of negligent hiring S/L
(E.g., hospital negligently hired dr. who committed malpractice)

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3 years from the date of injury to P

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Continuous Treatment Rule

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If physician continues to treat the patient after an operation for the SAME medical condition that gave rise to malprax

then S/L is 2.5 yrs from the end of the continuous treatment

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Foreign Object Rule

Back 18

If physician was responsible for introducing a foreign object into P's body and then leaves it behind, P gets whichever is longer:

(1) 2.5 years from date of operation

(2) 1 yr from date P discovers presence of object or should have discovered object with reasonable diligence

Foreign object: something the doctor did not intend to leave behind (NOT chemical substance, prosthetic device, fixation device) -- period is 2.5 yrs from date of malpractice

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LEARNED PROFESSION S/L: Who is member of learned profession?

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Architects
Engineers
Accountants
Attorneys

NOT insurance brokers, securities analysts, plumbers

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Malprax action against learned professional for FINANCIAL LOSS

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S/L = 3 years (tort AND contract)
Architect/engineer: starts when building is completed
Lawyer/accountant: starts when work product delivered to client

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Malprax Action against learned professional for BODILY INJURY

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S/L = 3 years
Starts on date of bodily injury

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Personal injury action brought
Against architects and engineers
More than 10 yrs after building completed

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P must serve notice of claim at least 90 days before suit

P may obtain pre-action discovery during 90 day period

If D moves for SJ, burden will be on P to show a SUBSTANTIAL BASIS to believe D's negligence was proximate cause of the injuries

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MUNICIPAL TORT LIABILITY S/L
(county, city, town, school district, municipal hospital)

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Personal injury & property damage: 1 yr and 90 days from date of accident

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Municipal torts: Notice of Claim

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P must serve notice of claim on municipal defendant within 90 days of ACCIDENT

Otherwise action will be dismissed (unless court in its discretion grants motion permitting service of a late notice of claim)

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Municipal torts: Commencing Action

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Must wait 30 days after notice of claim to commence action

In complaint, must plead compliance with notice of claim requirement (otherwise failure to state cause of action)

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PRODUCTS LIABILITY: Negligence

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S/L: 3 yrs from date of P's injury

Applies against all of defendants in the chain of distribution

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Products Liability: Strict Products Liability

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S/L: 3 yrs from date of P's injury

Applies against all defendants in chain of distribution

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Products Liability: Breach of Warranty

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S/L: 4 yrs from date D made its delivery of product

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Indemnity and Contribution Claims

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S/L: 6 years from date of actual payment of judgment for which indemnity or contribution is sought

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TOXIC SUBSTANCES EXPOSURE

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(1) Toxic substance: any inherently harmful toxin that has latent or slow-developing effects

(2) Exposure: any sort of assimilation into one's body or property

(3) Latent injury: injury not immediately perceptible

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S/L for toxic substance cases

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3 yrs

S/L begins on the EARLIER of
(1) discovery of injury or
(2) date the injury should have been discovered with reasonable diligence

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Toll for D's ABSENCE (out of state when cause accrues)

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D is not in NY when cause of action accrues --> S/L begins to run when D comes to NY

UNLESS there is personal jurisdiction over D outside NY

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Toll for D's Absence (leaves state after accrues)

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D is in NY when cause of action accrues but then leaves state and is continuously absent for 4 months or more
---> toll applies to period of absence

UNLESS there is PJ over D outside NY

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INFANCY or INSANITY

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may sue within regular S/L through a competent adult representative

Insanity: any mental disorder that causes an overall inability to function in society

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Infancy or Insanity Toll

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if P is infant or insane at time cause of action accrues, S/L is tolled until disability ends

Disability ends when (1) infant reaches 18 or (2) insanity clears up

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S/L for disabled plaintiff

If original S/L was 3 years or more

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P gets whichever is longer

(1) usual S/L period running from usual date of accrual OR

(2) 3 years from date that legal disability ends

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S/L for disabled plaintiff

If original S/L was less than 3 years

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P gets specified statutory period measured from date legal disability ends

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Toll for infancy + claim for medical malprax -- time bar

Back 38

Claim must be commenced no later than 10 yrs from date of accrual

UNLESS continuous treatment toll allows for later claim

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Toll for insanity -- time bar

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Claim must be commenced no later than 10 years from date of accrual

UNLESS continuous treatment toll allows for later claim

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Survival claim

Back 40

Survival claim: any cause of action P could have brought if she were still alive

Not limited to torts

Recoverable damages include all damages incurred by P prior to death, incl pain and suffering

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Wrongful death claim

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Tort claim only
Economic damages only
Brought by surviving spouse, children
Punitive damages
NOT emotional suffering

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Executor

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one who sues on behalf of decedent's estate if decedent died WITH a will

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Administrator

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one who sues on behalf of decedent's estate if decedent died WITHOUT a will

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S/L for survival claim

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Estate representative gets whichever is longer

(1) time remaining on applicable S/L running from date of accrual or

(2) 1 year from P's death

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S/L for wrongful death claim

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2 years from date of death

Decedent MUST have had a timely cause of action at time of death

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Death of Potential Defendant

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If potential D dies at any time before S/L expires

18 MONTHS are always added to relevant limitations period

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6 month grace period

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Action timely commenced
Then dismissed before trial (incl. for lack of SMJ)
At time of dismissal S/L has expired or has < 6 mos
THEN P gets 6 mos from date of dismissal to re-file same action and serve process on same D

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EXCEPTIONS where 6 month grace period is NOT applicable

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(1) dismissal was on merits
(2) dismissal was voluntary discontinuance by P
(3) neglect to prosecute consisting of a general pattern of delay
(4) dismissal was for lack of personal jurisdiction

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Reasons for dismissal where 6 month grace period won't be applied

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Defect in form of summons
Improper service of process
Out of state service where long arm jurisdiction was lacking

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The BORROWING STATUTE (cause of action arises outside NY)

If P is non-resident of NY when out-of-state claim arose

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If the other state's S/L is SHORTER --> NY court will apply S/L of state where claim arose

If the other state's S/L is LONGER --> NY court will apply its own S/L

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Borrowing Statute where P is NY resident

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NY will always apply the NY S/L