Statute Of Limitations

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Statute of Limitations

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1. Purpose: SOL is designed to promote justice by prohibiting litigation of stale claims where evidence has been lost, memories have faded, and witnesses have died or disappeared

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2. Extension of SOL:

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a. CPLR 201 expressly prohibits courts from extending a SOL time period
b. The legislature can revive a time-barred civil claim by extending an existing SOL
i. HOWEVER, the Ex Post Facto Clause of the US Constitution prohibits legislatures from extending a criminal statute of limitations once it has expired because an expired criminal SOL becomes an irrevocable amnesty for criminal offenders

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3. When an action is “interposed” (commenced):

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the date an index number is purchased and π’s process is filed with the clerk of the county
a. A civil action accrues on the date when the lawsuit first could have been commenced measured between these 2 dates to determine whether the π’s claim was timely
4. Weekends & Holidays Rules: If the last date of the SOL OR the last date to fulfill a contractual condition (see Lecture 8 Conditions), falls on a Saturday, Sunday, or public holiday, then π has until the following business day to timely commence the action or to timely perform the contract condition. NYAA 179.

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5. How to object on SOL grounds:

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D should raise the SOL in a CPLR 3211(a) pre-answer motion to dismiss OR asserted in the answer as an affirmative defense
a. NY cts are very liberal in allowing amendments to pleadings to enable D to raise the SOL as a defense months or years after answer has been served (see Pleadings lecture)

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6. Defense of Laches

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a. This defense is available in an equitable action when the π has unreasonably delayed in seeking equitable relief, but the π has nevertheless commenced the claim timely, but it would be unfair for the ct to grant equitable relief
b. D must show:
i. An unreasonable delay by π in seeking equitable relief, AND
ii. A change in circumstances that would result in substantial prejudice to the D if the ct grants equitable relief to D
c. Laches is NOT available as a defense to a money action
d. If the ct dismisses π’s claim for specific performance based on laches, could the π then sue the D in a law action to recover $ damages for breach of K
e. Once a claim is brought to a final judgment, NY applies the restatement of judgment transactional approach not only on claims that were litigated in the prior action (specific performance), but also to all claims that could have been asserted in the prior action that arose out of the same transaction or occurrence asserted in the π’s orig complaint

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7. Three steps in any statute of limitation problem:

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a. What is the applicable time period? Memorize them.
b. When did the statutory period begin to run?
c. When was the claim interposed?

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TIME PERIODS
20 Years

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a. Money Judgment: judgment presumed fully paid after 20 years and the CPLR creates a presumption of payment of judgment
i. a suit to collect unpaid arrears for court-ordered maintenance (alimony) or child support. NYAA 577-78.
b. Claims for adverse possession against NYS
i. AP claims against municipalities is only 10 years
ii. Lands held as a proprietor can be lost to an adverse possessor BUT lands held for the public (streets, streams, parks, forest preservers) CANNOT be lost to an AP – those lands may never be conveyed

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Time Period-

10 Years

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a. Claims for adverse possession or claims for a prescriptive easements on all real property EXCEPT realty owned by NYS. CPLR 212.
b. An ejectment action against a trespasser
c. A recorded lien on real property created when a federal, sister state, or NY state money judgment is filed in a NY county where the judgment debtor owns real property
i. If the judgment lien is foreclosed by the sheriff, and he sells the debtor’s home, then under NY’s homestead exemption, the debtor will retain the first $75K up to $150K in equity, depending on where the debtor’s home is located
ii. The homestead exemption does NOT apply to a mortgage foreclosure
d. A filed $ judgment has no effect on the D’s personal property
i. This requires a 1-page judgment execution to be delivered to the sheriff, who will then seize the judgment debtor’s personal property
ii. 10% of the judgment debtor’s wages or trust income can also be seized by the sheriff

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Time Period-

6 Years

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1. SCARF CRIME

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S

SCARFCRIME

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a. S – specific performance of a K
i. Subject to the defense of laches

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C

SCARFCRIME

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b. C – breach of contract actions seeking $ damages, EXCEPT UCC Sale of Goods contract, i.e. real property contracts, employment contracts, construction contracts, or loan contracts
i. The 6 years starts to run when D breaches K, EVEN THOUGH π may be unaware of the breach
ii. Breach of Ks involving the sale of good have a 4 year SOL
iii. Under federal law, education loans are exempt from any SOL. NYAA 200.

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A

SCARFCRIME

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c. A – actions recognized by cts at common law for which the legislature has not prescribed an SOL (default = 6 years)
i. Ex. Commercial bribery; falsely notarizing a signature; equitable actions, including accounting actions or constructive trust; and arbitration proceedings must be commenced within 6 yrs from breach of K

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R

SCARFCRIME

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reformation of a K
i. 6 yrs starts to run from the date the K was executed

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F

SCARFCRIME

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fraud, deceit, or negligent misrepresentation
i. Includes: Ks for the sale of goods
ii. SOL for fraud is 6 years from the fraud, OR 2 yrs from when it was discovered, OR with reasonable diligence could have been discovered
1. Which ever period (6 years or 2 years) gives π more time to commence the suit (must π know about fraud??). NYAA 186.
iii. The extra 2 years to sue from discovering the fraud does NOT apply to:
1. Contracts for the sale of goods, or
2. Claims for constructive fraud
iv. Constructive Fraud → when debtor makes himself insolvent
f. arises when a debtor transfers assets for less than full consid, and is rendered insolt to existing creditors, OR where debtor believes that he faces debts in the near future (ie Law suit) and because of the gratuitous transfer, he will be unable to pay the future debts
g. If the transferor has been named as a D in a lawsuit, or a judgment has been obtained against him, then the transfer is deemed fraudulent WITHOUT regard to his intent

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F

SCARFCRIME-continued-"badges of fraud"

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h. Badges of Fraud: There are certain “badges of fraud” that are so commonly associated with a constructive fraud transfer that their presence gives rise to an inference of a fraudulent intent, SHIFTS:
i. S – secretly done
ii. H – hastily done
iii. I – inadequate consideration for the transfer
iv. F – made to a family member or a close friend
v. T – transferor continues to control the property
vi. S – scienter (knowledge) of the creditor’s claim, and inability to pay the claim after the transfer. NYAA 109; Walsh.
vii. An atty who knowingly participates and facilitates a fraud can be held liable for those deceptive acts. NYAA 6.
1. Under Judiciary Law 487, an atty who engages in or consents to fraud or deceit in a NY state ct proceeding directed at the ct, a client, or another party in the litigation resulting in damages, allows the ct to treble the damages and a successful π can recover atty’s fees
2. Such conduct also constitutes a misdemeanor

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2ND C

SCARFCRIME

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corporate derivative actions. NYAA 183.

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2ND R

SCARFCRIME

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rescission of a K
i. 6 yrs runs from when K was executed
ii. HOWEVER, rescission of a nuptial or pre-nuptial agreement has a 3 yr SOL, which does NOT start to run until one spouse: extends SOL
1. Dies, or
2. Is served with divorce papers

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I

SCARFCRIME

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indemnification and contribution (seek Lecture 4)
2. Runs from when judgment is paid, NOT when underlying action occurred

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M

SCARFCRIME

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mortgage foreclosures
i. 6 yrs begins to run from first date mortgage is in default

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E

SCARFCRIME

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other equitable claims, SUCH AS:
i. Unjust enrichment,
ii. Constructive trust,
iii. A claim for an accounting, which requires the existence of a fiduciary relationship between π and D, and
iv. A claim for breach of fid duty where the π is seeking equitable relief
1. If the π only seeks $ damages, then SOL is 3 years. NYAA 178.

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TIME PERIOD

5YRS

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Domestic Relations Law)
1. An action for divorce or a judicial separation based on cruel and inhumane treatment CANNOT be maintained more than 5 years after the complained of event
a. The adultery is measured from when the π first discovered the adultery
b. Where D’s spouse has been in prison for 3 consecutive years, it creates a continuing injury to the marriage, giving rise to a new 5 year SOL for each day the D remains incarcerated after the first 3 years of imprisonment. NYAA 183.

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TIME PERIOD

4YRS

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1. An action for breach of ANY K for the sale of goods
2. On a breach of warranty claim, 4 years runs from the date the defective good was first tendered by D in the vertical chain of privity, DESPITE π’s lack of knowledge of the breach
a. Thus, the 4 year SOL against a manufacturer starts to run from when it tendered the defective good to the wholesaler and NOT from the later date when the good was tendered to the π by the retailer
b. An exception to the 4 year warrantee rule running from the date of tender is where the warrantee expressly extends to the future performance of the goods
i. Ex. Tire manufacturer expressly warrants the tire for 3 years, or 50,000 miles. The 4 year breach of warrantee SOL accrues from the date of the breach OR when it was reasonably discovered by the buyer during the 3 year warranty period

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TIME PERIOD

3YRS

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A SOFT RAIN

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A

A SOFT RAIN

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a. A – actions which did NOT exist at common law, but were created by statute, and the legislature did not provide a statute of limitations for that claim (default). NYAA 179.

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S

ASOFT RAIN

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strict products liability (3 distinct DIM claims – see Lecture 13)

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O

A SOFT RAIN

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c. O – misappropriation of a corporate or partnership opportunity

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F

ASOFT RAIN

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breach of fiduciary duty where $ damages are sought
i. HOWEVER, if π seeks equitable relief (injunction or an accounting), then it’s governed by a 6 year SOL, even if $ damages are also sought with the equitable relief. NYAA 178.

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T

A SOFT RAIN

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damages for a D’s trespass on π’s land

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R

A SOFT RAIN

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replevin or conversion
2. There are 3 theories on when the conversion or replevin SOL starts to run:
1. Upon commission of the tort,
2. When the theft was discovered, or should have been discovered,
3. A demand to return the stolen property and the D’s refusal to do so (only NY)
3. The 3 year SOL for these claims begins to run:
a. Against the thief from the date of conversion, OR against a good-faith possessor (i.e. someone who purchased the stolen property from the thief in good faith, or where the goods were bailed to the D) from the date the D refuses π’s demand to return the property or earlier when she disposed (sold) the property. NYAA 198.

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2ND A

A SOFT RAIN

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b. A – annulment of a marriage for fraud
i. 3 yrs runs from the date the fraud was discovered

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I

A SOFT RAIN

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c. I – tortious interference with another’s K
i. A π must prove the D was a KID
1. K – D knew of the π’s valid enforceable K
2. I – D intentionally procured its breach
3. D – breach proximately caused π damages. MLO 109.

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N

A SOFT RAIN

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d. N – negligence, as well as, malpractice by a professional (EXCEPT for medical malpractice)
i. Malpractice is 3 years REGARDLESS of whether the underlying theory of π’s claim is based on K or tort. CPLR 214(6).
ii. An action for professional malpractice MUST be commenced within 3 years from the date the malpractice was committed and NOT from when client discovered it
iii. NY adopts the minority view → a lawyer who negligently drafts a will CANNOT be sued by beneficiaries of the will since there is no privity of K between lawyer and beneficiaries (MULTI-STATE DOESN’T FOLLOW THIS RULE – can sue lawyer because K between client and lawyer created 3d pty beneficiaries of K)
1. NY now allows decedent’s estate’s representative (NOT beneficiaries) to sue a lawyer for negligent estate planning. NYAA 24.

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Negligence in malpractice

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1. The 3 yr SOL runs from date of injury and NOT from later date when injury was discovered
2. Exception: When a NY π sues for a latent injury to her person or property, and the injury was caused by exposure to a toxic substance, SOL begins to run from when the injury was first discovered = when the symptoms first became apparent
a. “exposure” = contact, inhalation, or injection
b. Ex. Can sue former partner for AIDS when you first become aware of symptoms, not when you had sex with them.
c. Ex. Can sue for oil leak in your home when you first discover it, even though been leaking for years. NYAA 187-191
3. CPLR 214-c does not apply to claims for medical malpractice to the intentional tort of battery

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v. Loss of Consortium

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1. When one spouse suffers personal injury during marriage, this gives the other spouse a cause of action for loss of consortium = simply an injury to the marital relationship
2. Allows the other spouse to sue tortfeasor for:
a. loss of injured spouse’s services AND
b. loss of conjugal fellowship
c. NYAA 791.
3. Must be married at the time the injury is inflicted!
a. Otherwise, married damaged goods.
4. Must join! A spouse’s loss of consortium claim MUST be joined with injured spouse’s personal injury claim. NYAA 791 (2d case).

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2 ½ Years Medical Malpractice

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a. MM → a failure to use that degree of skill and learning ordinarily used under similar circumstances by a similarly trained doctor
i. To establish a MM claim, usually requires expert testimony to prove D’s departure from accepted professional practices AND also to testify that the deviation by D proximately caused π’s injuries
ii. Expert’s testimony MUST be based on a reasonable degree of medical certainty
1. It CANNOT be based on supposition or conjecture
b.

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2 ½ Years Medical Malpractice-continued

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A MM claim generally accrues on the date of the malpractice
i. Except, if the negligent doctor continues to treat the known injury, SOL is tolled (frozen) until the related treatment ceases
ii. This doctrine is available ONLY if doctor’s efforts are to treat the known condition resulting from the malpractice.
“Continuous representation” applies to other professionals, such as lawyers, accountants, architects, or engineers.
c. Mostly, doctor will assert the affirmative def of comparative negligence of the π under the “avoidable consequences” theory
d. MM complaint MUST be accompanied by an affidavit of merit based on the atty consulting with a doctor who concludes the π has a meritorious claim
i. Without, ct will summarily dismiss!
ii. Two Exceptions:
1. Lawyer was unable to obtain a consultation after consulting with three doctors
2. Where SOL was about to expire, π is excused from this req PROVIDED within 90 days from when D is served with process, the affidavit of merit is obtained

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Foreign Object Rule:

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If the π’s personal injury was caused by a foreign object negligently left in the π’s body, and that object had no continuing treatment purpose, SOL for π’s claim is EITHER 2 ½ years from date of malpractice OR 1 year from discovering the foreign object – WHICHEVER PERIOD IS LONGER. NYLB 77.
i. Mostly 4x4 gauze pads left inside bodies
ii. Limit: Items implanted with the intent they remain in the body are NOT considered foreign objects
1. Ex. Fixation devices (pins), prosthetic devices, or misplaced stitches. NYAA 194 & 195.

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Doctrine of informed consent

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is based on the concept that everyone has a right to determine what should be done to one’s own body
i. A doctor has a duty to adequately apprise a patient of the foreseeable risks involved AND the alternative treatments available
ii. Doctor is liable for failing to inform patient BUT ONLY if treatment prescribed when weighed against the risks would NOT have been agreed to by a reasonable person in π’s position
iii. There is NO DUTY to obtain informed consent if the patient is a BEAR: disjunctive
1. B – it was in the best interest of the patient not to disclose the risks
2. E – emergency treatment was required because of a danger of death or serious injury to the patient
3. A – the patient asked the doctor to proceed, regardless of any risk
4. R – the risks were so commonly-known
g. Where a patient consents to one procedure but ANOTHER is performed, patient’s claim is battery, and NOT MM

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Whether conduct is negligence (3 yr SOL) or MM (2.5 yrs)

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is determined by whether the acts or omissions complained of involved matters of medical science not possessed by a layperson
i. Thus, a doctor’s misdiagnosis, a chemotherapy overdose, giving the patient the wrong blood type, or giving too much blood thinner is MM
ii. HOWEVER, a claim against a hospital for retaining an unfit doctor OR where the patient fell on a slippery floor in the hospital/doctor’s office is ordinary negligence governed by the 3 yr SOL. NYLB 81 para. 7.
1. Depends on whether a layperson can make the right judgment

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Time Periods

2 Years Wrongful Death Claims

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i. When a D’s tort proximately causes π’s death, the tort claim (negligence, MM, battery, or strict products liability) survive the death as an asset of π’s estate
ii. An additional wrongful death claims also arises, but belongs to the intestate distributees of decedent (not to estate) if they have suffered an economic loss because of decedent’s death
iii. Both claims are commenced by estate’s representative, but WD recovery is paid directly to heirs and NOT to estate
iv.

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Time Periods

2 Years Wrongful Death Claims -continued

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A NY WD recovery is limited ONLY to recovering for the economic injuries ($) suffered by intestate distributees . Examples:
1. Decedent’s lost earnings that would have passed to heirs
2. Monetary value of decedent’s services that were made to intestate distributees before death
3. Loss of heir’s inheritance
4. Decedent’s medical and funeral expenses resulting from WD
v. WD claim arises ONLY if AT THE MOMENT OF DEATH the underlying personal injury claim (negligence, MM) had not been settled, gone to judgment or was barred by SOL
vi. WD 2 yr SOL applies ONLY if π had not commenced a tort claim prior to death
1. HOWEVER, if on date of death π’s personal injury claim was pending against D, then WD claim is NOT governed by 2 yr SOL
2. Personal injury complaint is simply amended at any time after death to add the WD cause of action
vii. Pun Damges may be awarded in a WD recovery BUT ONLY if such damages could have been recovered for the tort that caused the π’s death
i.e. not for MM or neg

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Time Periods

1 Year & 90 Days

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i. A TORT claim against a municipality MUST be commenced within 1 year & 90 days
1. “municipality” = county, town, city, village, school district, water district, or volunteer fire district
ii. As a condition precedent to a tort claim against a municipality, a sworn notice of claim must be served on municipality within 90 days of π’s injury (Essay 4 Feb 2011)
1. Duplicate copies of the notice of claim AND subsequent complaint can now be served on Sec of State in Albany, who will forward to municipality. NYLB 78.
iii. Ct has discretion to extend 90 day time period by π commencing a special proceeding before the SOL expires which automatically stops SOL from running (tolls) until ct makes its determination
1. The new law does NOT apply to tort claims against NY state

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Time Periods

1 yr

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A DIMPLE FIB
A – arb awrds must be confirmed by commencing a sp procding in the Sup Ct w/in 1 yr from awrd
D – D has 1 yr to open/appeal the def jdgmnt frm the time D was served with a copy of that jdgmnt
I – to recov excess interest on usurious loan (int exceeds 16% annually)
M – claim for malicious prosec
P – right to publicity, "right to privacy" based on D’s unauthorized commercial use of π’s name, pic, voice for ad purposes w/o π’s written consent
L – libel/ slander
E – claim by a residential tenant for a landlord’s retaliatory evic because the tenant reported health or safety violations on a dwelling with four or more residential units. Rebuttable presumption that this is retaliatory in this circumstance
F – false imprison or arrest- runs from when the π was released from confinement
I – iied
B – assault or battery-Under CPLR 215(8), if a criminal case is pending because of this tort, then 1 yr tolled til crim prcding is terminated,REGARDLESS of whether the crim def convcted

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Time Period

4 Months - An Article 78

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i. ✪comes up occasionally, but not nearly as frequently as jurisdiction or SOL
ii. An Article 78 is a special proceeding commenced in Sup Ct to quickly challenge state or municipal administrative agency determinations
iii. Under CPLR 306-b, whenever a SOL is 4 months or less (Art 78), then process MUST BE FILED with a county clerk and an index number purchased within 4 months from when administrative determination became final and service of process must be made no later than 15 days from date SOL on π’s claim expired
1. Ct can extend 15-day period to serve process “in the interest of justice” or “for good cause shown”

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Special Proceedings (Art 4)

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1.SP permit certain claims to be summarily decided by a ct with speed of a mtn
2.ONLY THE PETITION (complnt) is filed with the cnty clerk when the index number is purchased
3.The notice of petition (summons) OR order to show cause used instead of the petition must first be submitted to the judge who then fixes the date that the matter is to be quickly heard in court. That doc must then be filed within 5 days.
Generally, in SPs, process MUST be served on the respondent (D) with at least 8 days notice BEFORE the matter is heard in ct and the answer is served 2 days before the ct date
a. HOWEVER, for an Art 78 SP, process must be served on respondent at least 20 days before the ct date and respondent’s answer must be served 5 days before the ct date
In any SP, ct permission is reqd when seeking AID:

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Special proceedings

(AID)

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A – to take an immediate appeal of a ct’s order
I – for a D to implead a 3d pty into the SP
D – pre-trial disc is not available in a SP EXCEPT for notices to admit or bills of particular, which can be used w/o the ct’s permission

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Four types of Article 78’s

(1. to compel an administrative act)

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where the act is NOT discretionary, but mandated by law
a. Used to compel a public servant to perform an act required by law
b. ✪Not frequently tested on essays, but on multiple choice
c. because NY corps are chartered by the state, they are considered quasi-governmental bodies
i. *Thus, an Art 78 can be used by a min SH to compel a corp to permit inspection of its books and records (Essay 5 Feb 2010)

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Four types of Article 78’s

2. To prohibit a judge from proceeding without SMJ (subject matter jurisdiction)

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a. It acts as an injunction against a judge
b. Ex. A criminal defendant commences an Art 78 to prevent:
i. A double-jeopardy violation
ii. A trial or a crime that was not committed within the ct’s jurisdiction
iii. To prohibit a judge from allowing defense counsel to inspect grand jury minutes
c. Art 78 only comes into play when judge exceeds his authority to act; otherwise, an appeal
d. When seeking to prohibit a SC or county ct judge, Art 78 must be commenced in the appellate division

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Four types of Article 78’s

3. Reviewing agency’s discretion: A Supreme Ct review of whether an administrative agency determination was arbitrary or capricious

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a. *great deference given to administrative agencies
b. When an agency’s decision does not adhere to its own precedent, and does not indicate any reason for reaching a different result on essentially the same facts, then that decision is arbitrary and capricious

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Four types of Article 78’s

4. An appellate division review of an agency’s quasi-judicial trial-type hearing where evidence was taken under oath and a transcript was made of the hearing.

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For example:
i. A hearing on unemployment benefits
ii. Civil service disciplinary hearings
iii. A denial of Medicaid benefits after a hearing
iv. A grievance committee’s disbarment of an atty
b. Standard of Review: whether the record is supported by SUBSTANTIAL EVIDENCE = whether it has some credible evidence to support the determination
i. Hearsay alone, if credible and believable, can be “substantial evidence”. NYAA 106-07.
ii. *Seigel says that this standard is basically the same as “arbitrary and capricious” and that therefore there’s not much difference between this type and type 3
iii. If the only issue raised in an Art 78 is the substantial evidence question, then, because there’s already a full transcript record, the Sup Ct must transfer the Art 78 to the appellate division
1. HOWEVER, if the Sup Ct could decide some other issue that would terminate the Art 78 (MOP, SOL, or SPARE RIBS), then the Sup Ct must first decide those issues before transferring it to the app div

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Suing NYS v Art 78-differences

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vi. When suing the state of NY for $ damages, the π’s action must be commenced in the Court of Claims, but when suing the state for Art 78 relief, the Sup Ct is the proper forum, and it can award $ damages against the state, BUT ONLY if it is incidental to the Art 78
1. This usually arises where the state has a statutory duty to pay money to petitioner. Lecture 5.
vii. Do not confuse an art 78 with declaratory judgment action! (CPLR 3001), which allows the Sup Ct to declare the rights of the parties involved in a controversy
1. It is frequently used:
a. To challenge the constitutionality of a statute
b. To determine the rights and obligations of the parties in a disputed contract
c. To declare the validity or invalidity of a foreign divorce decree
2. Dec Jud Actions generally governed by a 6-year SOL
a. BUT ct will always look to see whether π missed the Art 78 4-month SOL and is now attempting to disguise the Art 78 as a declaratory judgment action

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Time Periods

Thirty Days

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Divers Jd: Non-domicile sued in a NYS ct has 30 days from when he can “intell ascertain” that div jd exists HOWEVER, if any of the named Ds is a NYdomicile this automatically prevents removal of that action from state ct into fed ct on dvsty grounds
Appeal: A party has 30 days to take an immediate app from the ct’s intermediate order OR from a final judgment-35 days if order for jdgmnt was mailed to the appellate bc whenever a time period is measured from the service of papers and the service is by mail, ADD 5 DAYS TO PERIOD! CPLR 2103(b)(2).
2. The 30 day period does not begin to run until the order or jdgmnt is served BY A PARTY (srvce by the ct does not start the 30-day period)
3. The notice of appeal must be served on the adversary and also filed with the clerk of the ct from where the appeal is being taken
4. The 30 days does not begin to run if the order or jdgmnt served on the adversary does NOT contain “notice of entry” → the date in which the clek of the ct entered that doc

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Tolling and Extending Provisions:

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If the SOL has expired on the π’s claim, then the π should consider the tolling and extending provisions in NY – LEAP DAD’S CAT-this is uniform in all states

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L

LEAPDADSCAT

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lengthening the SOL
1. The parties can lengthen or agree not to plea the SOL, BUT ONLY in a signed writing executed after π’s cause of action has accrued
2. Any such provision contained in the original K between the parties is against public policy and unenforceable. NYAA 193.
3. Query: Can the SOL be shortened by the parties? CPLR 201 says yes, PROVIDED it is conspicuous and placed in writing (it’s usually in the parties’ original K), but it must be shortened to a reasonable period
a. 90 days was held reasonable in a construction contract. NYAA 199.
b. In a K involving the sale of goods, the SOL can be shortened but NOT to less than 1 year

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E

LEAPDADSCAT

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equitable estoppel preventing a D from pleading the SOL. NYAA 184-86.
1. This π’s remedy is rarely successful, but available in both law and equity actions when the SOL has expired because of the D’s deceitful wrongdoing that produced the delay in the π commencing the lawsuit
2. Mere silence or a failure to disclose wrongdoing generally is NOT SUFFICIENT to invoke this doctrine; must be an affirmative misrep
3. Does D have to prevent you from initiating suit knowingly? YES - it has to be an affirmative misleading.
4. But if π had been notified that should not have relied on false information, won’t grant equitable estoppel

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A

LEAPDADSCAT

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written acknowledgment of an old debt. NYLB 96-97; NYAA 207.
1. When a debtor signs a writing acknowledging an old contractual debt and it doesn’t contain anything inconsistent with the debtor’s intent to repay it, then it renews the SOL on the amount promised to be repaid “I know I owe you $5,000 and I will pay you as soon as I can.”
2. If the writing promises to pay only part of the debt, it is nevertheless enforceable, but ONLY for the amount acknowledged because π’s action is now based on the new promise, RATHER than on the time-barred original promise
a. Thus, π’s recovery is limited to the partial debt.
3. Hypo: After the SOL expired, X wrote to Y that since X gave Y a fir coat last year, X was only going to pay Y $3,000 of the $7,000 ten-year old debt. X’s writing would revive $3,000 of the debt, but not the remaining $4,000. *The new promise does not have to be supported by any new consideration.
4. But wait!...

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P

LEAPDADSCAT

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part-payment – where a debtor pays part of a debt together with an express or implied unqualified acknowledgment that more money is owed, then this starts the SOL running anew on the balance of the debt.
1. i.e. indicate on each payment check how much of the total balance you’re paying off

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1ST D

LEAPDADSCAT

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π is under a disability (either infancy or mental disability) same rule in multi-state and CPLR
1. If at the moment a COA first accrued, the person entitled to commence the action was an infant or was mentally incompetent, this tolls the SOL.
2. Limit: The disability toll doesn’t apply to derivative claims, such as spouse’s claim for loss of consortium OR a parent’s claim for loss of injured child’s services
3. Mental Incompetence
a. A π’s mental incompetency MUST render her unable to protect her legal rights because of an overall inability to function in society. NYAA 187.
b. Any claim by a mental incompetent must be commenced within 10 years, otherwise, the claim is barred
4. Infancy
a. SOL is tolled until infant’s 18th birthday
5. For both (subject to the 10-year rule):
a. If the SOL is less than 3 years, then apply the applicable period from when the disability ceases, OR
b. If the SOL is 3 yrs+, apply a flat 3-year period from when disability ceases/turns 18

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The Ten-Year Rule

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a. If π’s disability is either: a) mental incompetency for any cause of action, or b) infancy in a medical malpractice claim only, then under the 10-yr rule, regardless of the continuation of π’s disability, the action must be commenced w/IN 10 yrs from date it first accrued, OTHERWISE, it’s time-barred
b. The continuous treatment theory CANNOT further extend the 10-yr period
d. The 10-yr rule for infants is applied ONLY for an infant under age 11 when the MM first accrued
i. A child 11+ yrs old will never have a full 10 yrs to sue the D
ii. Ex. I was celebrating her 11th birthday when Dr. X committed MM. I will have 7 yrs until her 18th birthday, and 2 ½ yrs from when the disability (infancy) ceased for a total of 9 ½ yrs to sue Dr. X.
1. Thus, the 10-yr rule would not be applied.
2. HOWEVER, if I was celebrating her 7th birthday when she was injured by Dr. X’s MM, under the 10-yr rule, her claim must be commenced by her parents no later than her 17th birthday (10 yr rule applies).

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2ND A

LEAPDADSCAT

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amending pleadings under the relation-back doctrine to add related claims or new parties after the SOL has expired:

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Adding a related claim

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a. If the date before the SOL expired, π timely commenced a lawsuit, but months or years later, makes a motion to amend her complaint to add a new claim that is now barred by the SOL, that new claim is timely PROVIDED ANT: conjunctive?
i. A – it arose out of the same transaction pleaded in original complaint; it’s a related claim
ii. N – the original complaint gave D notice of the new claim sought to be added to the complaint
1. That is, the new claim is based on facts already pleaded in the original complaint
iii. T – it was timely when the π first commenced the action on the date process was filed with county clerk
b. For SOL purposes, an amendment to a pleading to add a related cause of action (arose out of same transaction), “relates back” to the date that process was originally filed with clerk of the court.

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Adding a new defendant

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a. If a π makes a motion to amend the complaint to add a new D to action, but the SOL has expired against the new D, then the amendment is nevertheless timely PROVIDED the new party is “united in interest” with a D already named in the lawsuit
b. This amendment is permitted, but ONLY IF:
i. The claims against both Ds arose out of the same transaction,
ii. The new D had notice of the lawsuit and knew that but-for π’s mistake, the new party should have been named in the original complaint (NYAA 206), AND
iii. The new party is united in interest with the original D, so that they stand or fall together in that lawsuit
1. Thus, a judgment against one would likewise affect the other
2. Generally, two active joint-tortfeasors are NOT considered united in interest
3. Parties united in interest frequently involve the vicarious liability relationships of POOPE parties:

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Adding a new defendant (POOPE parties)

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P – prtnrs who are j/s liable for each other’s trts or malprct cmmttd in frthrnce of the prtnrshp biz
O – under NY (VTL), a NY vehicle ownr is vic liab for driver’s negl if the vehic used with owner’s express/implied permiss+ the accident occurred in NY
i. strong rebuttable presump of permiss use of an auto/boat/ATV/snowmob
ii. However, this vic liab isNT extended to commercial lease comps bc fed law has preempted .
O – joint owners of real prop-tc, jt, et
P – prin/agent are vic liab, torts of the agent are imputed to the prin
E – employer/ee The doc of resp sup renders an employer vic liab for the torts committed by an employee while acting w/in scope of employ where the purp in performing was to further the employer’s interest, or to carryout duties that employee had undertaken in frthrnce of employer’s biz Conversely, where an employee’s acts are wholly for pers motives, then employer is NOT vic liable But can sue for negligent retention of an unfit employee = tort all on its own

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2nd D

LEAPDADSCAT

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D’s death prior to being sued automatically extends the SOL period by 18 months
1. Extended form death or when original sol expires?
2. The only time a π’s death affects the SOL is if at the moment of death, π’s SOL had less than 1 year to go
3. This guarantees a π’s estate at least one year from date of death to pursue a claim

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S

LEAPDADSCAT

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Service Members Civil Relief Act (military)
1. Both fed and NY law provide that any period of military service of a π or D SHALL NOT be included in computing a SOL period

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C

LEAPDADSCAT

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ix. C – counterclaims to reduce π’s judgment, NOT to recover damages
1. For SOL purposes, the timeliness of a D’s counterclaim is measured back to the date π first commenced the action when process was filed with county clerk’s office
2. If D’s claim was timely from that date, it CANNOT be barred by SOL REGARDLESS of date D asserts that claim
3. Even if D’s counterclaim was time-barred when π commenced the action, it may still be asserted if it is related to π’s claim
a. It must arise out of the same transaction or occurrence asserted in π’s complaint
4. Equitable Recoupment: value of the time barred related counterclaim is limited and can ONLY be used by a D as an offset to reduce π’s judgment
a. Will never actually recover damages for this time barred counterclaim, only to reduce π’s judgment

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3RD A

LEAPDADSCAT

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A – coa arising outside state
1. Under CPLR 207, coa arsng outsde NY against a non-NYer over whom pers jd cant be obtnd in a NY ct (no DIAL DC) indef tolls the SOL TIL jd can be obtnd in NY
2. Under CPLR 202 “Borrowing Stat”, when a non-res’s coa arose outside of NY, and that non-NYer comes into NY to sue, to prvnt forum shopping, NY ct will apply the NY SOL or will borrow the SOL of state where coa accrued, whichever period is shorter-the Stat reqs a non-res’s claim to be timely under both NY law and the law of the state where claim arose
b. Where an allgd injury is purely econ (breach K) the place of inj is where the π resides, becaus that is where the π sustained the econ loss.
3. CPLR 207 also provides when the coa accrues in NY, and D leaves the state for 4+ consec mnths, goes into hiding, or takes on assumed name, AND service cannot be made on D to obtain personal jurisdiction, THEN SOL is tolled indefinitely
a. This tolling provision is rarely available because of CPLR 308(5)

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T

LEAPDADSCAT

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termination of a timely action AFTER SOL has expired.
1. If π’s action is timely commenced in any state or fed ct, BUT is subsequently dismissed due to a technical defect, which can be remedied in a new action (not res judicata), then even though SOL has expired at the time first action is dismissed, π is given additional 6 months from termination to re-file and re-serve same D
2. Exceptions: This 6-month allowance CANNOT be used if the first action was terminated because of JPMD:
a.

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JP MD

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J – first case was failure to obtain jurisdiction over D (MOP)
i. Thus, there was no pending action on which the 6 months can be attached
b. P – the first claim was dismissed for a π’s neglect to prosecute
i. PROVIDED the ct’s order of dismissal expressly sets forth π’s conduct constituting the neglect
ii. Ct’s order MUST indicate a general pattern of delay
c. M – on the merits (SJ)
i. Thus, res judicata prohibits a second suit.
d. D – π voluntarily discontinues the first action, which can be done:
i. Before service of the answer,
ii. By stipulation between parties (D agrees), OR
iii. By court order