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New York Statute of Limitations – Negligence

In this post, I’m going to go over the statute of limitations under New York law for a negligence lawsuit. As a reminder, negligence is a type of tort for which a plaintiff can seek redress by filing a civil suit, often for money. In layman’s terms, negligence occurs when the defendant does something, but fails to exercise something called “ordinary care”. In my mind, a failure to exercise ordinary care is when the defendant fails to abide by the expectations people in society assume. For instance, when you’re driving a vehicle, pedestrians will assume that you’re paying attention, using your mirrors, etc. If you as the driver fail to exercise ordinary care — for instance, you’re not paying attention because you’re texting while driving — and cause an accident, you’ll likely be accused of negligence.

If you’re a plaintiff suing for negligence, you generally have to prove at least these four criteria. :

  • That defendant owed a duty to you,
  • That defendant breached that duty to you by, for instance, failing to exercise ordinary care,
  • You suffered injuries or damage of some kind, and
  • Defendant’s breach of that duty to you was the proximate cause of the injuries or damage you suffered.

These four criteria are, as I mentioned, not specific to one particular state. I learned the 4-criteria version of negligence in law school. Some lawyers learn the 3-criteria version which basically combines the injury and causation bulletpoints above into a single bulletpoint that states something like “defendant’s breach of duty proximately caused plaintiff’s injuries.”

What’s powerful about negligence if you’re the plaintiff — or annoying, I suppose, if you’re the defendant — is that it can pop up in any environment. Negligence is, again, fundamentally a failure to exercise ordinary care in a given activity, but the activity in question could literally be anything that human beings engage in.

In New York, the statute of limitations for a negligence suit is three years. The governing statute for that is section 214 of New York’s Civil Practice Law and Rules (CPLR), which lists out seven types of cases that have to be commenced within three years. Numbers 4, 5, and 6 in that list are:

“4. an action to recover damages for an injury to property except as provided in section 214-c;

5. an action to recover damages for a personal injury except as provided in sections 214-b, 214-c, and 215;

6. an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort;”

Number 4 and 5 refer to Section 214-C of the CPLR. 214-C is a bit of a long statute, but if you read it all, it addresses various scenarios relating to latent exposure to substances. In other words, in some cases, a person might be exposed to substances (e.g. some type of toxic chemical), but the actual injury doesn’t appear for a long time. In those cases, under Section 214-C, the three years doesn’t begin until the injury is actually discovered or should have been discovered with “reasonable diligence”, whichever is earlier.

Number 5 also refers to section 214-B and 215. Section 214-B talks about Agent Orange exposure during the Vietnam War, specifically for the periods of January 1, 1962 to May 7, 1975. My guess is that that May 7 date was chosen because it was the date then-President Gerald Ford proclaimed the Vietnam Era over. If you have an Agent Orange case you want to file in New York state court, section 214-B says you have to do so within the later of two years of either the date your injuries were discovered or two years of the date which your injuries should have been discovered.

Section 215 talks about a variety of case types in which the statute of limitation is only one year instead of three. Some of the case types listed sound somewhat unusual and rare — for instance, suing a law enforcement officer when someone the officer arrested on a civil warrant escapes — but some of the case types listed are pretty routine as well (e.g. civil assault, civil battery, libel, slander, etc).

Lastly, you’ll notice above that Number 6 describes malpractice cases other than those involving medical, dental, or podiatric. Legal malpractice, for instance, would fall into this category. The statute of limitations for medical, dental, and podiatric malpractice cases is discussed in Section 214-A of the CPLR. I’d encourage you to take a look at 214-A because, while it’s not long, it’s pretty involved. The general rule of three years is replaced by a general rule of a 2.5 year statute of limitations, provided there is “continuous treatment for the same injury, illness, or condition which gave rise to the said act, omission, or failure”. However, that 2.5 year rule can be much shorter in certain situations. If the case involves a foreign object left in the body, the statute of limitations is only a year from the date the foreign object was actually discovered or when it should have been discovered, whichever is earlier.

If the case involves a failure to properly diagnose a cancer or malignant tumor, the statute of limitations is 2.5 years. However, that 2.5 years starts on the later of either:

  • the date of the last treatment, when there is a continuous regiment of treatment, or
  • the date upon which the plaintiff knows or reasonably should have known (1) a misdiagnosis occurred, and (2) that misdiagnosis had caused injury. If the plaintiff is going to use this prong, though, as opposed to the 2.5 years starting from the date of the last treatment, the plaintiff has to file his or her lawsuit within seven years of the date the misdiagnosis occurred, regardless of when that misdiagnosis could have been reasonably discovered.

If your situation involves a negligence situation — for example, a medical malpractice situation — in New York state court, do not rely just on what I have written above. The above is a paraphrase of the relevant statutes and is only meant to be a superficial survey of the law so that, hopefully, you can have at least some background when talking to a lawyer about what you need help with.

Lastly, if you’re a frequent reader of my blog, you won’t be surprised by what comes next: Because this post involves New York law, I need to make clear that while I am licensed as a lawyer in New York state, I do not — as of the date this post was released — maintain a physical office anywhere in New York state. As a result, I am not able to represent clients in New York state due to Section 470 of New York’s Judiciary Law. Of course, I don’t know when you’re reading this post. It’s entirely possible I may have an office in New York state at that point and, if I do, Section 470 would not apply to me. Even if I do not have an office in New York state, though, I do know quite a few lawyers in New York state and New York City. If you need a lawyer in New York state or City, feel free to reach out. I’m happy to make a referral, if I can.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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