Statutes of Limitations

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 133-252

Chapter 3

STATUTES OF LIMITATIONS

QUICK VIEW

Definition: The statute of limitations is the time period within which an action must be commenced, or it is

barred forever.

Scope of Chapter: How to calculate the limitations period; how a claim is interposed; limitations periods for

particular actions; modifying the limitations period by agreement; accrual rules; tolls.

Strategies and Tactics: Conservatively estimate the last day for bringing a claim. Calendar that date and try to

commence suit well in advance of it. If a claim appears time-barred, consider pleading it as a different cause of

action to get a longer limitations period or later accrual date. Consider also whether the claim can be saved by

estoppel, a tolling rule, or the relation back doctrine.

Statutes and Rules: CPLR 201-218; Court of Claims Act §10; Gen Mun L §50-I; EPTL §5-4.1; Gen Constr L

§§20,24,30,58; Gen Oblig L §17-103; UCC §§2-A-506, 2-725.

Related Topics: Service of Process, Ch 9; Pleadings, Ch 15; Default Judgment, Ch 39; Summary Judgment, Ch 37.

Forms: See Form 3:10, Notice of Claim Against Municipality, in digital access.

TABLE OF CONTENTS

I. Overview

A. General Points

§3:01 Definition

§3:02 Purposes

§3:03 No Rationale for Particular Periods

§3:04 Court Cannot Extend Period

§3:05 Raising Statute of Limitations

B. Sources of Law

§3:10 CPLR Article 2

§3:11 Other Sources

§3:12 Borrowing Statute

C. Conditions Precedent Distinguished

§3:20 What Is a Condition Precedent

§3:21 No Waiver or Tolling

NEW YORK CIVIL PRACTICE BEFORE TRIAL 3-2

D. Laches Distinguished

§3:30 What Is Laches

§3:31 Application to Actions at Law

§3:32 Combining Years and Days

II. Calculating Limitations Period

A. General Points

§3:40 Is Claim Timely

§3:41 Period Runs From Accrual to Interposition

§3:42 Accrual

§3:43 Tolls and Extensions

§3:44 When Claim Is Interposed

§3:45 Which Period Applies

§3:46 Pleading to Maximize Limitations Period

B. When Period Expires

§3:60 Periods Measured in Years

§3:61 Periods Measured in Months

§3:62 Periods Measured in Days

§3:63 Last Day on Weekend or Holiday

III. Interposing Claim

A. Claims in Complaint

1. BY FILING

§3:70 When Claim Is Interposed

§3:71 Exceptions to Commencement by Filing

§3:72 Filing Extension

§3:73 What Constitutes Filing

§3:74 Service Within 120 Days

§3:75 Motion to Dismiss or Extend Period for Service

§3:76 Proof of Service Need Not Be Filed

§3:77 Caution: Summons Must Meet Jurisdictional Requirements

2. BY SERVICE

§3:90 When Claim Is Interposed

§3:91 Commencement by Service Courts

§3:92 Publication

§3:93 Commencement by Delivery to Sheriff or Clerk

§3:94 When Service Is Two Step Process

§3:95 Danger of Commencement by Service

B. Relation Back Doctrine

1. COUNTERCLAIMS, CROSS-CLAIMS, AND THIRD PARTY CLAIMS

§3:100 Counterclaims in Original Answer

§3:101 Time-Barred Counterclaims Asserted as Set-Off

§3:102 Case Examples: Claims That Arose Out of Same Transaction

3-3 STATUTES OF LIMITATIONS

§3:103 Case Examples: Claims That Did Not Arise Out of Same Transaction

§3:104 Cross-Claims and Third-Party Claims

2. AMENDED PLEADINGS

§3:110 Pleadings Amended as of Right

§3:111 Pleading Amended by Leave of Court

§3:112 Notice

§3:113 Wrongful Death Claims

§3:114 Valid Pending Action Required

§3:115 New Defendants

§3:116 Third-Party Defendants

§3:117 Additional Plaintiffs

§3:118 Cross-Claims

3. PARTIES UNITED IN INTEREST

§3:130 Application of Relation Back Rule

§3:131 Requirements for United in Interest Relation Back

§3:132 “United in Interest” Defined

§3:133 Rationale

§3:134 Unity Must Exist When Action Accrued

§3:135 Mistake Need Not Be Excusable

§3:136 Pending Action Required

IV. Determining Applicable Period

A. Torts

1. PERSONAL INJURY AND INJURY TO PROPERTY

§3:150 Three-Year Period

§3:151 Personal Injury

§3:152 Injury to Property

§3:153 Conversion/Replevin

2. PROFESSIONAL MALPRACTICE (NON-MEDICAL)

a. General Points

§3:160 Three-Year Period Regardless of Legal Theory

§3:161 Retroactive Application

§3:162 Who Can Be Sued for Malpractice

§3:163 Legal Theory Still Significant for Non-Professionals

§3:164 Can There Be a Breach of Contract Claim Against a Professional

b. Architects, Engineers, and Surveyors

§3:170 Events Occurring More Than 10 Years Ago

§3:171 Covered Claims

§3:172 Notice of Claim

§3:173 Discovery

§3:174 Commencement of Suit

§3:175 Motion to Dismiss or for Summary Judgment

3. MEDICAL MALPRACTICE

§3:180 Two and One-Half Year Period