Glossary of New York Practice 2
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- Supreme Court
- 1. General Jurisdiction: Ability to hear any type of action.
2. Unlimited Monetary Jurisdiction
3. Full equity jurisdiction (i.e. injunction, specific performance, etc.)
- SUBJECT MATTER JURISDICTION
- A court must have subject matter jurisdiction to hear the type of controversy brought before it.
ii. Even with subject matter jurisdiction, the court can (upon motion of ∆) dismiss an action for forum non conveniens because of the absence of any substantial nexus to NY.
- Exceptions to SC’s general jurisdiction
- 1. Federal law confers exclusive jurisdiction on federal courts
2. Claims for money damages in tort or contract against the State of NY. → court of claims
- The SC has exclusive subject matter jurisdiction over…
- i. Matrimonial Actions
ii. CPLR Article 78 proceedings
iii. Declaratory judgment actions
- STATUTE OF LIMITATIONS
- a. Affirmative defense to be raised by the ∆.
i. Statute of Limitations begins to run when the action accrues. (injury occurs)
ii. Action must be commenced (filing process) on or before the last day of SOL.
iii. If the last day falls on a Sat., Sun., or holiday… ∏ gets until the end of the next business day.
- Medical Malpractice
- 2 ½ years
- Medical Malpractice Exceptions
- 1. Continuous Treatment Rule
a. You get 2 ½ years from termination of treatment if treating for same condition that gave rise to malpractice.
2. Foreign Object Rule
a. You get 2 ½ years from date of operation or 1 year from date ∏ discovers or w/ reasonable diligence should have discovered the presence of the object.
- Other Professional Malpractice (e.g. architects, engineers, accountants, attorneys, NOT insurance brokers)
- i. 3 year SOL running from the termination of the particular services in which the malpractice occurred.
ii. Subject to the continuous representation doctrine, which is similar to continuous treatment doctrine.
- Other Professional Malpractice (PI claim)
- iii. If PI is involved, injured person can sue for 3 years from date of injury.
1. If PI action is brought more than 10 years after completion of the building,
a. ∏ must serve a notice of claim on the architect or engineer at least 90 days before suit
b. ∏ may obtain discovery from the potential ∆ during the 90 day waiting period
c. After suit is commenced, if ∆ moves for SJ, the burden will be on ∏ to make an immediate evidentiary showing that there is a substantial basis to believe that ∆s negligence was the proximate cause of the injuries.
- Products Liability
- i. When defective widget causes PI, you can sue in:
1. Negligence: 3 yr SOL running from date of injury against all D in chain of distribution
2. Strict Products Liability: 3 yr SOL running from date of injury against all D in chain of distribution.
3. Breach of Warranty: Under UCC, 4 yr SOL running from date each particular D made sale of product
- Indemnity and Contribution
- 6 yr SOL running from date of actual payment of the judgment for which indemnity or contribution sought.
- Discovery rule in cases of exposure to Toxic Substances
- 1. SOL begins to run on the date the injury is discovered by ∏ or the date with reasonable diligence the ∏ would have discovered the injury.
- Toll for ∆’s Absence
- 1. If ∆ is not in NY when cause of action accrues, SOL does not begin to run until ∆ comes to NY or
2. If ∆ is in NY when cause of action accrues, but ∆ thereafter leaves the state and is continuously absent for at least 4 months, toll applies to entire period of absence.
a. UNLESS the ∏ has a basis of personal jurisdiction over ∆ such that process could be validly served on ∆ outside of NY.
- ∏s Infancy or Insanity
- 1. Infants (under 18) or insane ∏s may sue within regular SOL through a competent adult representative, but they also get the benefit of a toll:
2. If ∏ is an infant or insane at time cause of action accrues, the SOL is tolled until the disability ends.
a. If original SOL 3 yrs or more, you get 3 yrs from date disability ends.
b. If original Sol less than 3 years, you get period of original SOL from date disability ends.
3. When relying on toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from date of accrual.
4. Claims of insane ∏s, regardless of nature of action, become time barred after 10 years from date of accrual, when relying on toll for insanity.
a. ** In medical malpractice suits, run the continuous treatment toll and infancy toll separate and determine if the action is timely under either toll**
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