Q. I think I may have a legal claim. How long can I wait to decide whether to file a lawsuit?
Every claim that might be the subject of a lawsuit or other court proceeding must be brought within a specified period of time – referred to as a “statute of limitations.” If the claim is not filed before the expiration of the applicable statute of limitations, the claim will be subject to dismissal regardless of its merit. A court has no authority to relieve a party of its failure to file a claim within the statute of limitations and, if a claim is determined to have been untimely brought – even by one day – the court has no choice by to dismiss the claim. Obviously, ensuring that a potential claim is timely brought within the applicable statute of limitations is of vital importance.
In order to determine how long you have to file a claim, you need to know the type of claim at issue, the statute of limitations period applicable to that type of claim, and the date on which the statute of limitations period begins to run. An experienced attorney can help you with this and ensure you meet the necessary deadlines.
Know What Kind of Claim You Are Filing
Claims generally fall within one of two categories –“common law” claims (claims recognized under the law but not arising under a particular statute) and “statutory” claims (claims where the right or liability to be enforced arises from a state or federal law). Familiar common law claims include actions for personal or property damage arising from negligence; actions for damages arising from intentional torts such as assault, trespass, or defamation; and actions for damages arising out of the breach of an express or implied contract. One example of a statutory claim is New York Civil Rights Law § 51, which permits a person whose name or picture is used for advertising or trade purposes without his or her written consent to pursue a claim for damages.
On occasion, a single event may give rise to two or more different types of claims – each of which may have a different statute of limitations period. For example, a purchaser injured by the use of a product may seek damages under the alternative claims of negligence or strict liability (governed by a three-year statute of limitations) or breach of warranty (governed by a four-year statute of limitations).
Article 2 of the New York Civil Practice Law and Rules (CPLR) establishes the statute of limitations for common law claims as well as for statutory claims where the statute at issue does not expressly provide for a specific limitations period. As a general rule, actions on contracts must be filed within six years, actions for personal injury or property damage (including that resulting from negligence) must be filed within three years; and actions arising from “intentional” torts (such as assault or defamation) must be filed within one year. Significantly, actions for medical malpractice – although a species of professional negligence – must be filed within two years and six months, and not the three year period allowed for other negligence claims.
You May Have as Little As 30 Thirty Days to File
Some types of claims have exceedingly short limitations periods. For example, a proceeding brought pursuant to CPLR Article 78 for judicial review of a determination by a municipal body or officer must be filed within four months of the determination to be reviewed. If that determination happens to involve a decision of a town zoning or planning board, the time to file a proceeding drops to thirty days.
Some types of claims are subject to a shorter limitations period, as well as other requirements if the defendant party is a municipality. While claims for personal injury or property damage arising from negligence are generally subject to a three-year statute of limitations, the time to file suit is reduced to one year and ninety days if the defendant is a municipality. In addition to a shortened limitations period, claims against municipal defendants are also subject to written notice of claim requirements.
Know When the Clock Starts Ticking
Once the type of claim and the associated statute of limitations period have been identified, you also need to determine the date on which the period begins to run. As a general rule, the statute of limitations for most claims begins to run on the date on which the act or event you are complaining about occurred, even if you were not immediately aware of the act or that you were damaged by it. For example, the statute of limitations for a medical malpractice action generally begins to run on the date the malpractice was committed, even if you do not realize that the malpractice occurred until months later.
Determining the applicable limitations period in which to file a claim can often be complicated. If you believe that you may have a legal claim, the best advice is to consult with an attorney – and to do so sooner rather than later. You can contact our team for a free consultation on your claim today.