New York

 
 
 
 
 
 
 
 
 
 
 
 
 
 

Statutes of Limitations (NEW YORK)

Personal Injury - 3 yrs. [CPLR § 214]

Property Damage - 3 yrs. [CPLR § 214]

Med Mal - 2.5 yrs. [CPLR § 214-a]

Malpractice (other than Med Mal)* - 3 yrs. [CPLR § 214]

Wrongful Death - 2 yrs. (after death) [EPTL § 5-4.1]

Contract of Sale and Breach of Warranty - 4 yrs. (from tender of delivery) [McKinney's U.C.C. § 2-725]

Contracts (Written and Oral) - 6 yrs. [CPLR § 213]

 

*If the parties are in contractual privity, a cause of action to recover damages for professional malpractice for defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship [Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603 (N.Y. App. 2013)].

 

Usually no “discovery rule,” depends on type of action.  

 

 

 

Statutes of Repose (NEW YORK)

Products - None.

Construction of Real Property - None.  However, if the parties are in contractual privity, a cause of action to recover damages for professional malpractice for defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship [Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603 (N.Y. App. 2013)].  Also, CPLR § 214-d provides that Plaintiff who has a claim against a licensed architect/engineer/surveyor based upon the professional performance by such licensed professional occurring more 10 yrs, prior to the date of such claim, must give a written notice at least 90 days before suit can be filed.

 

 

 

Claims Against Public/Gov. Entities (NOTE: “Sovereign Immunity” Limitations May Apply) (NEW YORK)

Against City/County - Notice within 90 days; Suit within 1 yr. and 90 days [McKinney's General Municipal Law §§ 50-e; 50-i]

Against State - Claim must be filed and served upon Attorney General within 90 days (6 mos. for contracts); or, if a written notice of intention to file a claim is served within this period, then the claim must be filed and served within 2 yrs [Court of Claims Act Sect. 10].

 

 

Comparative Negligence (NEW YORK)

Pure comparative (Plaintiff can recover even if 99% at fault) [CPLR § 1411]

 

 

 

Made Whole Doctrine (MWD) (NEW YORK)

MWD applies in “limited funds” situations.  If the sources of recovery ultimately available are inadequate to fully compensate Insured for its losses, then Insurer has no right to share in the proceeds of Insured’s recovery from Tortfeasor [Winkelmann v. Excelsior Ins. Co., 650 N.E.2d 841 (N.Y. 1995)].  Under MWD, Insurer may seek equitable subrogation against only those funds and assets that remain after Insured has been compensated [Fasso v. Doerr, 903 N.E.2d 1167 (N.Y. 2009)]

 

 

 

Economic Loss Doctrine (ELD) (Assuming No Injury to Person or Damage to “Other Property”) (NEW YORK)

Recognized/applied.  Purchaser of a used helicopter could not recover in tort against manufacturer of helicopter which malfunctioned but which only caused injury to the helicopter itself; although purchaser had no contractual remedies against the manufacturer, purchaser could have bargained for warranties from the seller rather than buying the helicopter “as is” [Bocre Leasing Corp. v. General Motors Corp., 840 F.Supp. 231 (E.D. N.Y. 1994)].  Where a product fails to perform as promised due to negligence in either the manufacturing or installation process, Plaintiff is precluded from recovering tort damages for its economic loss [Suffolk Laundry Servs. v Redux Corp., 238 A.D.2d 577 (N.Y. App. 1997)].  Negligence action seeking recovery for economic loss will not lie [MCI Telecommunications Corp. v. John Mezzalingua Associates, Inc., 921 F.Supp. 936 (N.D. N.Y. 1996)]

 

However, under limited circumstances, an exception may exist for negligent performance of contractual services.  [MCI Telecommunications Corp. v. John Mezzalingua Associates, Inc., 921 F.Supp. 936 (N.D. N.Y. 1996)].  Also, business owners were not limited to breach-of-contract remedies on cause of action alleging that contractor negligently installed the music-on-hold system where the cause of action asserted valid tort claim because the damages sustained by owners did not arise from failure of the music-on-hold system to perform as intended, but arose instead from an abrupt, cataclysmic occurrence (fire) caused by Defendant’s negligence.  The breached legal duty was the failure to exercise reasonable care while connecting electrical wires and did not arise solely from the contract.  [State Farm Fire & Cas. Co. v. Southtowns Tele-Communications, Inc., 245 A.D.2d 1028 (N.Y. App. 1997)]

 

 

 

Certificate/Affidavit Of Merit Requirements (Claims Against Licensed Professionals) (NEW YORK)

In any Med Mal action, the complaint must be accompanied by a certificate executed by Plaintiff’s attorney, declaring that the attorney has reviewed the facts of the case and has consulted with at least one physician in medical malpractice actions and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action [CPLR § 3012-a]

 

 

 

Landlord/Tenant Subrogation (NEW YORK)

Subrogation allowed in the absence of clear and unequivocal language to the contrary [Phoenix Ins. Co. v Stamell, 21 A.D.3d 118 (N.Y. App. 2005)].

 

 

 

Reimbursement of Deductible(s) (NEW YORK)

Auto - Pro rata.  Insurer must deliver to Insured its payment for the pro rata share within 30 days of recovery.  Net recovery is the total recovery less Insurer’s allocated loss adjustment expenses attributable to such recovery.

The formula for computing net recovery and Insured’s share of recovery of the deductible:

 

Insured’s Share  =  (Deductible) / (Total Loss) X (Total Recovery – Allocated Loss Adjustment Expenses)

 

If Insurer has paid a physical damage claim that is subject to a deductible and it elects not to pursue its subrogation claim where the possibility of recovery exists, Insurer must so notify Insured in writing within 60 days (except that the notification must be given at least 30 days prior to the running of the statute of limitations).  If Insurer does not notify Insured and the statute of limitations has expired, Insurer must remit to Insured the full amount of the deductible.

 

Property - No law available.

 

 

 

MedPay and PIP (NEW YORK)

Med Pay - Optional coverage, usually available as PIP, APIA (additional PIP), OBEL (optional basic economic loss).  Subrogation usually is not allowed or virtually impossible.

 

PIP - Recovery allowed under limited circumstances.  Recovery against a person not covered by PIP is allowed as a lien on Insured’s bodily injury action, or as a direct legal action if Insured fails to initiate his legal action within 2 yrs. (statute of limitation is 3 yrs. from the 2-yr. period for Insured to file suit).  An out-of-state vehicle not subject to the NY PIP system, will be deemed “covered by PIP” if it is insured by an insurance carrier that transacts business in NY.

 

There is no recovery from another vehicle covered by PIP, unless one of the vehicles involved weighs 6,500 pounds or is a vehicle for hire (by way or arbitration only - “loss transfer” from the negligent vehicle’s insurer).  Statute of limitations is 3 yrs. from each PIP payments.  PIP and OBEL are usually treated the same.

 

APIA may be subrogated either by way of a lien against Insured’s personal injury claim or by way of a direct legal action against Tortfeasor.  Statute of limitation is 3 yrs. from the date of the accident.

 

 

 

Liability of Parents (NEW YORK)

$5,000 liability for willful, malicious, or unlawfully acts by a child between 10 and 18 yrs old [N.Y. Gen. Oblig. Law § 3-112]

 

 

 

Joint Liability (NEW YORK)

Joint and several liability (Plaintiff may recover all damages from any Defendant regardless of Defendant’s individual share of liability).  Several liability (Plaintiff can recover from each Defendant only that Defendant’s share of liability) for personal injury Defendant who are less than 50% at fault, for noneconomic damages.  Defendants in cases involving intentional acts, collusion and recklessness are always jointly and severally liable.  [CPLR §§ 1601; 1602]

 

 

 

Independent Cause of Action for Evidence Spoliation (NEW YORK)

No tort for negligent spoliation by a third party [MetLife Auto & Home v. Joe Basil Chevrolet, Inc., 807 N.E.2d 865 (N.Y. 2004)

 

 

 

Conflicts of Law (NEW YORK)

Torts - New York will give controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or parties, has greatest concern with specific issue raised in the litigation [Babcock v. Jackson, 191 N.E.2d 279 (N.Y. 1963)].  Contracts - Court will lay emphasis upon the law of the place which has the most significant contacts with the matter in dispute, rather than the law of the place of making or performing the contract [Auten v. Auten, 124 N.E.2d 99 (N.Y. 1954)]