How much time do I have to file a Lawsuit in New York State?
Your lawsuit must filed within the applicable time limit in order to be successful.
Lawyers and judges refer to that time limit as the “Statute of Limitations.” A lawsuit filed beyond that date will probably fail as this is a technical requirement. It doesn’t matter how good your case was, or how unjust the result is when your case is dismissed - the courts simply don’t have the authority to extend the Statute of Limitations.
Some of the more common time limits are listed below; the list is by no means exhaustive. Because of the tolling and other provisions which can modify these time limits, even if you think your time has expired, you should consult an attorney anyway to be sure.
Here are some examples of commonly applicable Statutes of Limitations in New York State:
1. Negligence - 3 years from the date of injury: Negligence cases include car /motorcycle /truck /pedestrian accidents, slip and fall injuries, trip and fall injuries, construction injuries, dog bites, property damage, negligent infliction of emotional distress, and products liability. Note that medical malpractice and negligence lawsuits against municipalities are controlled by different time limits.
2. Municipal Actions - 90 days to file a notice of claim, and 1 year and 90 days to file a lawsuit: In New York State, in order to sue a municipality (e.g. a City, Town or Village or a City/Town/Village agency), you must serve a “Notice of Claim” upon the municipality within 90 days of the injury. If you miss the 90 day deadline, it is still possible to get permission from the court to file a late Notice of Claim. Once the Notice of Claim is filed, you must file the lawsuit within 1 year and 90 days from the date of injury. Examples of City agencies (I’m using New York City agencies here since that is where my practice is based ) includes the N.Y.C. Department of Education, N.Y.C. Department of Corrections, N.Y.C. Health and Hospitals Corporation, N.Y.C. Department of Sanitation, and the N.Y.P.D.
3. Intentional Acts – 1 year from the date of injury: Intentional acts include assault, battery, intentional infliction of emotional distress, defamation, libel, and slander. Note that it you are suing a municipal employee, the case is governed by the 90 day Notice of Claim requirement and the 1 year and 90 day Statute of Limitations which control municipal actions.
4. Medical Malpractice – generally 2.5 years but there are some important caveats: In a medical malpractice action, you generally have 2.5 years from the date of injury. However, if you continued to treat with the same person/ entity that committed the malpractice, you have 2.5 years from the last date of continuous treatment. New York State has a special consideration for foreign objects mistakenly left inside a patient which is either (a) 1 year from the date of discovery of the foreign object, or (b) 1 year from the date the foreign object reasonably should have been discovered whichever date is earlier.
5. Fraud – 6 years with important distinctions: In New York State a person has six years from the date they are harmed by the fraud (called the “Accrual Date”) to file a lawsuit. However, the law also gives the victim of fraud 2 years from the date they discovery the fraud or two years from the date they reasonably should have discovered the fraud.
6. Child Victims Act Lawsuits – No Statute of Limitations until August 14, 2020: Following a recent change in New York State law, persons who were sexually abused as minors can bring lawsuits against their abusers and the institutions which enabled them regardless of how long ago the abuse occurred. The “window” for these old claims to be brought closes on August 14, 2020. At this point, survivors of child sex abuse will have until age 55 to bring their lawsuits. It is unclear at this time whether older claims will be “grandfathered in” or whether this only applies moving forward for new claims because the changes in the law are so new. The best way to preserve your right would be to contact an attorney who is familiar with these cases (our office is currently handling about 60 of them) and file a lawsuit within the window, i.e. prior to August 14, 2020.
7. Wrongful Death – 2 years from date of death with caveats: If a person dies as a result of another’s negligence, malpractice, etc., that person’s estate has up to 2 years from the date of death to bring an action against the defendants. If that person was killed as a result of the 9/11 terrorist attacks on the World Trade Center, they have 2 years and 6 months from the date of death to file a claim. If there is a criminal proceeding against the person who caused the death, then the estate has up to one year following the termination of the criminal proceeding to bring a wrongful death statute.
8. Civil Rights Claims under 42 USC 1983 – 3 years: Under 42 USC 1983, if your Civil Rights/ liberties as defined by the United States Constitution have been violated, you have three years from the date of injury to file a claim against whatever individual state actors and/ or agencies violated your civil rights. Unlike the above examples, this is governed by federal and not New York State law. Examples of Civil Rights violations include excessive force by police or corrections personnel, malicious prosecution, abuse of process, workplace discrimination, sexual harassment, discrimination on basis of race, sex, national origin, religion, and other protected classes.
The above are Statutes of Limitations for just some of the many types of lawsuits that can be filed in New York State. Please note that there are more exceptions and variations than those listed above – you must consult with an attorney if you have any questions or concerns regarding your specific case; the above are meant to be general guidelines.
The Statutes of Limitations can be paused or "tolled" under certain circumstances.
While the Courts cannot extend the applicable Statute of Limitations, there are conditions upon which the Statute can be paused or “tolled.”
Infancy tolling: If a minor under the age of 18 is injured, the Statute of Limitations is generally tolled (paused) until their 18th birth date, at which point it begins to run. This avoids the harsh result of a child who is unable to comprehend their rights and the legal processes being unable to sue for an otherwise valid claim. In general, once the infancy tolling ends, the Statute of Limitations begins to run with a maximum time frame of three years from the 18th birthday.
Mental Incapacity/ insanity: If a person is mentally incapacitated the statute of limitations is tolled in the same manner as for infancy.
How long should I wait before filing a lawsuit?
No matter how much time you think you have to file a lawsuit, it is always better to seek out an attorney sooner rather than later. Often, additional steps are required to assess the merits and value of your case before it can be filed in court, and the clock is always ticking.
Medical records, financial documents, photographs, surveillance videos, affirmations from doctors, criminal background checks, asset searches, and D.M.V. records are all items which may be required for case assessment and require weeks if not months to procure.
If you believe that you have a viable personal injury claim, you can contact me at 914-500-7990 or by email at sameernath.esq@gmail.com at any time and we will set up a consultation at no cost to you. If you cannot travel, we can set up a time for me to visit you at your home, hospital, or other location.