Statute of Limitations

Question 1

When did the claim interpose:

Answer 1

Summons and complaint (process) to county clerk - paid the fee and obtained index number.

Question 2

6 Year Statute Of Limitations for:

• SCARF CRIME

Answer 2

6 Year Statute Of Limitations for: SCARF CRIME

• S: SPECIFIC performance of a contract:
• C: Breach of CONTRACT action seeking money damages:
  
  • Except UCC Sale of Goods K
• A: ACTIONS recognized at common law that have no SOL
• R: REFORMATION of a K (runs from when K executed)
• F: FRAUD, deceit, or negligent misrepresentation:
  
  • Whichever is longer:
    
    • 6 yrs from Fraud, OR
    • 2 yrs from when it could or should have been discovered
      
      • Constructive Fraud = NO 2 yr extension:
  • BUT: Inference may be made of intent to fraud IF: SHIFTS:
    
    • S: SECRETLY done:
    • H: HASTILY done:
    • I: INADEQUATE consideration for asset transfer:
    • F: Made to FAMILY member or close FRIEND
    • T: TRANSFEROR continues to control prop
    • S: SCIENTER, and inability to pay claim after transfer
• C: CORPORATE derivative actions
• R: RESCISSION of K (runs form when K was executed)
• I: INDEMNIFICATION & contribution:
  
  • Runs from when someone pays more than they should have
• M: MORTGAGE foreclosures:
• E: Other EQUITABLE claims
  
  • E.g. unjust enrichment, constructive trust, etc.

Question 3

3 Year Statute of LImitations for:

• A SOFT RAIN

Answer 3

3 Year Statute of LImitations for: A SOFT RAIN

• A: ACTION did not exist at common law & statute did not have SOL
  
  • E.g. Dram Shop Act, state discrim, UCC Art 9 Breach of Peace
• S: STRICT products liability: (runs from P’s injury)
• O: Corp OPPORTUNITY Misappropriated
• F: Breach of FIDUCIARY duty: P seeking only money damages
  
  • 6 yrs: if seeking equitable relief
• T: Claim for TRESPASS damages:
• R: REPLEVIN or conversion
  
  • Runs from when chattel was stolen, or
  • From when P demanded return, if acquired in good faith
• A: ANNULMENT of marriage for fraud (runs when fraud discovered)
• I: Tortious INTERFERENCE w/ P’s contractual rights:
  
  • To establish Prima Facie Case:
  • P MUST prove D was a KID:
    
    • K: KNEW of the Contract
    • I: INTENTIONALLY procured its breach
    • D: Proximately caused P’s DAMAGES
• N: NEGLIGENT or professional malpractice (NOT Med Mal=2.5 yrs)
  • Runs from when malpractice was committed
  • Except for latent or hidden injuries

Question 4

1 Year SOL for:

• A DIMPLE FIB

Answer 4

A DIMPLE FIB has a 1 year SOL:

• A: ARBITRATION award must be confirmed by S.CT w/in 1 year
• D: DEFAULT judgments:
  
  • D = 1 year to open / vacate
  • P = 1 year to enter
• I: To recover excess INTEREST on usurious loans
  
  • Unethical loan unfairly enriching the lender
• M: Claim for MALICIOUS prosecution:
  
  • Begins to run upon favorable determination (i.e. dismissed)
• P: Right to PUBLICITY claim: based on D’s unauthorized use of:
  
  • Living person’s name, image, or voice, for advertising
• L: LIBEL & Slander:
• E: Tenant claim against LL for wrongful EVICTION
  
  • Including claim for constructive or retaliatory eviction
• F: FALSE imprisonment or arrest:
  
  • Runs from when P is released
• I: INTENTIONAL infliction of emotional distress
• B: Assault or BATTERY

Question 5

If the SOL has expired:

• Tolling and extending provisions:
• LEAP DADS CAT

Answer 5

If the SOL has expired: NY’s Tolling and extending provisions: are LEAP DADS CAT:

• L: Parties can agree to LENGTHEN or not to plead the SOL:
  
  • In signed writing, after cause of action accrued
  • Original K: CAN’T extend or waive SOL
    
    • ​CAN shorten SOL if:
      
      • ​writing, conspicuous, reasonable period (90 days construction K)
    • ​Sale of goods K: NOT less than 1 year
• E: EQUITABLE estoppel:
  
  • Prevents D from pleading SOL if:
    • P’s SOL expired b/c of D’s deceitful wrongdoing, AND
    • P actually relied on D’s fraudulent misrepresentation
• ​​A: D’s written, signed ACKNOWLEDGMENT of an old debt: (GOL)
  
  • ​Renews the SOL only on the amount promised to repay:
    
    • “I will pay you 3K of the 7K debt” = revives 3K (not 7K)
• **P: PART PAYMENT w/ acknowledgement that more is owed: **(GOL)
  
  • New promise on original consideration
  • P must show payment was for old debt and present intent to pay:
    
    • Not payment alone: Need Implied or express acknowledgement
  • SOL starts anew from date of acknowledgment
• D: DISABILITY of the P: (CPLR)
  
  • Max of 3 years after disabilty ceases or 18th birthday (or for 10 yrs if MM):
  • 10 year rule: Must commence w/in 10 yrs from when claim accrued
    
    • for any disabled claim or infant MM only:
      
      • E.g. 5 yr old hit by car + MM: 15 years later = Car-ok, MM-expired
• ​​​A: AMEND pleading to add new party or time barred claim to timely filed claim:
  
  • _​Adding related Clai_m: ANT
    
    • A: New claim AROSE out of same transaction or occurence = related claim
    • N: NOTICE to D in original complaint: new claim based on same facts in pleadings
    • T: TIMELY: P must have originally timely filed complaint w/ CC
      
      • I.e. date index # was obtained
  • Adding new D requires:
    
    • Claim against both D’s arose from same T or O
    • New D had notice: but-for P’s mistake D would have been named originally

​Must be united in interest: judgment would affect both: (i.e. POPE vicarious)

        * **P: _PARTNERS_: J&S liable for torts in furtherance of partnership**

• O: OWNERS:
  
  • ​NY: auto: if express or implied permission = driver’s negligence
    
    • ​NOT commercial leases (Hertz)
  • ​Real Prop: ALL Joint owners: J&S
• ​P: PRINCIPAL & Agent if act was committed:
  
  • ​In furtherance of employer’s interest &
  • w/in scope of duty
• ​E: EMPLOYER / Employee
• D: DEATH of party prior to being sued:
  
  • ​D’s Death **= **Tolled 18 months from D’s death:
  • P’s Death = P’s estate has @ least 1 year (or SOL - whichever longer)
• S: SERVICE member (military)
  
  • ​Time served = tolled
• C: COUNTERCLAIMS are deemed interposed as of date P filed claim:
  
  • ​If D’s Counterclaim not timely = can only be asserted to reduce P’s judgment
• A: Claims ARISING outside NY against non-NYer:
  
  • Tolled until person juris can be obtained anywhere
    
    • IF non-NYer wants to sue in NY:
      
      • Timely = NY SOL or SOL of his state (whichever’s shorter)
    • IF injury is purely economic = Location of injury is where P resides
    • IF D hides, leaves state for 4 months or more, or changes name
• T: TERMINATION of timely action based on technical defect:
  
  • 6 months to recommence same action
  • UNLESS: JP MD
    
    • J: P Failed to obtain MOP JURISDICTION over D:
    • P: P neglected to PROSECUTE - rsulting in dismissal
    • M: Dismissal was on MERITS:
    • D: P voluntarily DISCONTINUED 1st action:
    • Blurf