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NY Practice - General Tolls and Extensions
Terms in this set (7)
Toll for Defendant's Absence - what is the general reality?
There is no need for the absence toll if P can get valid personal jurisdiction over def. even though def. is outside NY. Therefore, the exception usually swallows the rule and a plaintiff is rarely entitled to an absence toll.
Toll for Defendant's Absence - what is it if
1) def. is gone when cause of action accrues?
2) def. left for some time?
1) If def. is not in NY when cause of action accrues, S/L does not begin to run until def. comes to NY.
2) toll applies to absence
Toll for Plaintiff's Infancy or Insanity - how do you calculate the new S/L for
a) if original S/L was 3 years OR MORE
b) less than 3 years
If P is infant or insane at time cause of action accrues, the S/L is tolled until the disability ends, i.e., until infant reaches age of 18 or until insanity clears up.
a) (at least) 3 years from when disability end
b) specified statutory period from when the disability period ends
What are the two situations in which there is an outside limit of 10 years for causes of action?
1) When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from date of accrual.
2) Claims of insane Ps, regardless of nature of cause of action, become time-barred after 10 years from date of accrual, when relying on toll for insanity.
Tolls for Death
1) Wrongful Death Action?
2) Survival Claim?
3) Potential Defendant dies before S/L expires?
1) 2 years from death
2) (at least) 1 year from death
3) toll of 18 months
If a NY action is timely commenced, but is thereafter dismissed before trial, AND
at the time of dismissal the S/L has either expired or has less than 6 months
remaining, P gets 6 months from date of dismissal to re-file the same action and
serve process on same D - WHAT ARE THE FOUR EXCEPTIONS?
1) dismissal on merits
2) dismissal on voluntary discontinuance
3) dismissal for neglect to prosecute (general pattern of delays)
4) if a dismissal was for personal jurisdiction
Borrowing Statute - what is it and how does it affect SOL?
The borrowing statute is intended to
prevent forum-shopping by non-resident P's seeking a longer S/L in NY.
1. If P was a non-resident of NY when out-of-state claim arose, NY Court will use shorter SOL.
2. If P is NY resident, always use NY SOL.
Other sets by this creator
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NY Practice - Personal Jurisdiction
NY Practice - Methods of Serving Process
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