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Posted: December 29, 2014

Client Q&A: When is it Too Late to Sue?

When is it Too Late to Sue?

By John M. Lundin

If you wait too long to bring a lawsuit, you may lose the right to bring it. And if someone has waited too long to bring a lawsuit against you, you might be able to get the lawsuit dismissed.

How long is too long? It depends on the type of claim. Here are the basic rules.

Limitations Period

The law setting the time you have to bring a lawsuit is called the statute of limitations. Different statutes of limitation apply to different types of claims—personal injury, breach of contract, malpractice, discrimination—and the amount of time you can wait before bringing a particular claim varies a great deal. For example, you have:

  • One year to bring a claim for defamation;
  • Two years to bring a claim for wrongful death;
  • Two-and-a-half years to bring a claim for medical malpractice;
  • Three years to bring a claim for negligence, personal injury, legal malpractice, or injury to property;
  • Six years to bring a claim for breach of contract or fraud (the time to sue for fraud can change depending on when you discovered the fraud);
  • Twenty years to collect a judgment.

If you file your lawsuit after the statute of limitations has run—meaning that the specified time has elapsed—the claim may be time-barred and can be dismissed.

Accrual and Tolling

In New York, a lawsuit usually has to be filed before the statute of limitations runs out. However, this rule applies only if the defendant is timely served—generally, within 120 days of filing—and is served in accordance with law.

The more complicated question is when does the limitations period begin to run (or accrue). Just as the limitations period varies by type of claim, so do the rules on accrual. For example, a claim for breach of contract accrues when the contract is breached, even if the plaintiff does not suffer damages until later. On the other hand, certain personal injury claims do not accrue until the injury was, or should have been, discovered.

There also are several rules that stay the running of the limitations period—called tolling. Such rules cover situations where the plaintiff is unable to serve the defendant in New York, or where the plaintiff is not an adult or has died, or where the case was previously submitted to arbitration. In addition, courts can toll the statute of limitations if the defendant had a special duty to the plaintiff—like the duty a lawyer owes a client or a trustee owes the beneficiary of a trust—or takes action to hide the facts relating to the claim from the plaintiff. The limitations period can also be tolled by agreement of the parties.

Other Jurisdictions

Each state sets the statute of limitations for its own laws. And sometimes—but not always—federal law claims have statutes of limitations set by federal law. For that reason, statute of limitations concerns may affect where a lawsuit is brought.

Sometimes out-of-state plaintiffs try to take advantage of the differences in limitations periods by bringing claims arising under another state’s (or country’s) laws in New York. This usually does not work, because New York courts generally apply the shorter of the two statutes of limitations.

Conclusion

Whether a claim has been barred by the statute of limitations can be a very complicated. For each claim, you have to assess how long the limitations period is, when it accrued, and whether it was tolled. As experienced business litigators, a regular part of our practice is determining the answers to those questions. If you have questions regarding whether it is too late to bring a claim you think you may have against someone, give us a call.

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