2013-12-13 / Columnists

Sullivan’s Court

By Keith Sullivan

Q. I recently called a lawyer’s office seeking a consultation for a possible lawsuit I thought I had against a Cityowned hospital. I was brushed off and told the “statute of limitations expired.” Can you take a few minutes and explain what the Statute of Limitations is and what type of cases this applies to? I hear it joked about in the context of criminal conduct but never knew it applied to civil cases as well. Thanks! – Dan C.

Ahhh…you have touched on the worst nightmare of every lawyer…“the expiration of the statute of limitations!” Lawyers make their office staff partake in physical and mental jujitsu to ensure that lawsuits are filed before the statute of limitations expires. Most firms also invest in the latest technology software to assist in tracking all of the various filing deadlines to ensure the cases are filed well before the statute of limitations expires. Failing to file a client’s claim compromises the client’s rights since their right to file a lawsuit is forever barred, triggers a malpractice claim against the lawyer who dropped the ball and under certain circumstances can be sanctionable by the attorney disciplinary committee. You may recall that Vice President Biden once whispered to President Obama, “This is a BIG ____ deal!” well no truer words would be more fitting when a lawyer blows the statute of limitations on a case.

The purpose of the statute of limitations is to protect the defendant. The length of the statute of limitations varies based upon the type of case, the age of the plaintiff and who the defendant is. The notion behind the legal principal is that a plaintiff with a valid case should pursue it with reasonable diligence in a timely fashion so the claim does not linger out there over the defendant’s head for an eternity. Also, it is premised in fairness, since the defendant never knows if he will be sued or not the longer it takes for the suit to be filed he may lose or discarded necessary evidence and thus compromise his ability to fully defend himself.

For plaintiff’s who are unable to protect their legal rights, because of their young age, military service or who are suffering from a mental disability, the statute of limitations is tolled or suspended until the person is old enough or of sound mind to pursue their rights more fully. In a typical personal injury case for example, the statute of limitations would expire three years after the disability ends or three years after the minor reaches eighteen years of age.

In your scenario any claim against a municipality, city, town, village or the State you must first file a Notice of Claim within 90 days of the incident. This tells the defendant that you intend on suing them at some later time. Failing to do so precludes you from filing the lawsuit. The actual lawsuit must be filed within 1 year and 90 days from the date of the injury causing event. Many attorneys make the mistake of thinking the lawsuit must be filed 1 year and 90 days from the Notice of Claim filing. This erroneous understanding of the law creates major headaches for otherwise wholly competent lawyers!

The length of time for the statute of limitations varies amongst the numerous causes of action. For example, here are some statute of limitation periods followed by typical claims that you might be familiar with; 20 years Statute of Limitations (alimony & child support arrears, adverse possession against the state); 10 years (adverse possession against a private individual, money judgments or liens); 7 years (Workers Compensation claim); 6 years (contract actions, fraud, negligent misrepresentation);

3 years (negligence claims such as products liability, car accidents, slip and falls); 2.5 years (medical malpractice); 2 years (wrongful death); 1 year and 90 days (Notice of Claim for negligence against a municipality); 1 year (intentional acts such as battery, assault, malicious prosecution, slander, employment discrimination); 30 days (remove a state case to federal court, file an appeal, file a Notice of Claim).

The statute of limitations puts an end to stale claims and the uncertainty they bring with them for all parties involved. It has been said that long dormant claims have more cruelty than justice in them.

You can email your questions for Keith Sullivan to SullivansCourt@gmail.com.

Keith Sullivan is a partner with Sullivan & Galleshaw, LLP, an adjunct law professor and a lecturer for the national bar exam. He is also a Deputy Commissioner for the NYS Athletic Commission. Keith can be seen providing legal analysis on various television networks such as FOX News, CNN, HLN, NBC and MSNBC. Sullivan’s Court provides general legal information only, is not intended as legal advice and does not create an attorney-client relationship.

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