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7 Cards in this Set
- Front
- Back
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a 'BEAR' patient does not need to give informed consent
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There is no duty to obtain informed consent if the patient is a BEAR
• Best interests of the plaintiff not to disclose the risks involved because informing would have adversely affected the patient o Ex: heart attack, tumor, weak heart • Emergency treatment was required because of imminent danger/threat to patient o Ex: emergency room • Asked o Patient asked the doctor to proceed regardless of the risks • Risks were commonly known |
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a 'DIMPLE FIBS' for one year statute of limitations
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1 YEAR SOL – A DIMPLE FIB
• Arbitration award must be confirmed by the Supreme Court within 1 year of the award • Default judgment o Defendant has 1 year to open a default judgment from the date the defendant is served with a copy of the default judgment. • Interest o An action to recover excess interest on an usurious loan. o Usury: charging too high a rate on a loan (in NY, it has to be more than 16%). • Malicious prosecution • Publicity o A pl’s claim for the right to publicity based on a defendant’s unauthorized commercial use of a living person’s name, picture or voice for advertising purposes without the plaintiff’s written consent. NY only recognizes Right to Publicity of those that are alive. • Libel and slander • Eviction o Claim by tenant against landlord for wrongful eviction including constructive eviction or retaliatory eviction o Retaliatory eviction is where a landlord retaliates against a residential tenant for reporting health or safety violations in a dwell |
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'LEAP DAD'S CAT' to circumvent the statute of limitations
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o LEAP DAD’S CAT – guidelines for extending/tolling the Statute of Limitations
Length • The parties lengthened the SoL Equitable estoppel • Preventing the defendant from asserting the Statute of Limitations A written acknowledgement of old debt Part payment of old debt Disability of plaintiff Amending a pleading to add a time barred claim Death of a party Service members civil relief act Counterclaim that is time-barred Arising claim – that arose outside of NY – where personal jurisdiction (MOP) cannot be obtained Termination • and then recommencing the same action after the SoL has expired. |
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a 'SCARF CRIME' lasts six years
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o 6 Year SoL = SCARF CRIME
Specific performance of a k Contract actions • Breach of Contract actions o Except: for breach of k for sale of goods (UCC article 2 – has 4 year SoL) • Loan made without any specific time of repayment is deemed payable on demand on date the loan was first made. a.k.a. “Demand Note” • SoL on breach of construction k begins when Defendant’s performance is first completed. o However if a construction flaw causes personal injury, then the personal injury claim accrues on the date of the plaintiff’s personal injury. o Under federal law, student loan contracts are exempt from the SoL. They are non-dischargeable in bankruptcy unless repayment of the loan would cause the student “undue hardship” Actions recognized at common law which legislature has not specified a statutory time period. Reformation of a contract. The 6 years start to run from the date of the alleged error in the contract. Fraud, deceit or negligent misrepresentati |
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there was a 'SOFT RAIN' for three years
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3 Year SoL - A SOFT RAIN
• Actions which did not exist at common law but were created solely by statute and the statute did not provide a statute of limitations o These are actions that are purely the creation of a state legislature. o Ex: real property disclosure laws, dram shop laws • Strict products liability which has 3 separate DIM elements o Defective design o Inadequate warning o Manufacturing flaw (see Lecture 11) • Opportunity o Misappropriation of a corporate/partnership opportunity See Essay 3 feb 2007 • Fiduciary duty o Breach of fiduciary duties o If pl seeks only money damages sol is 3 years o If pl seeks equitable damages sol is 6 years Even if equitable claim is also joined with a claim for money damages o Fiduciary duties arise between 2 people when one of them is in a position of dominance or control and the law imposes a duty to deal fairly with the other and to act for the other in good faith. Ex: Attorney-client relationship, directors of a corporation |
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'A POOPE' is vicariously liable
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Parties “united in interest” frequently involve the vicarious liability of POOPE parties.
Partners who are jointly and severally liable for each other’s torts that are committed in furtherance of partnership business Owner – NY owner and driver of motor vehicle, used with owner’s express/implied permission except there is no longer imputed liability to a commercial rental car or leasing company (i.e. Avis, Hertz, etc…) Owners – joint owners of real properly are jointly and severally liable for injuries occurring on the realty (i.e. joint tenancies, tenacy by the entirety, tenancy in common)\ Principal and agent – Employer/employee – doctrine of respondeat superior renders an employer vicariously liable for torts committed by employee while acting within the scope of their employment. • An employee’s torts fall within the scope of employment where the purpose in performing such actions was to further the employer’s interest or those tortious acts were done to |
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'J.P. MD' gets no extra six months to recommence a dismissed suit
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Termination (T in CAT)
• Termination of a timely action but the action is terminated after the SoL has expired. • R: if P’s action is timely commenced in any state/federal court, but is subsequently dismissed due to technical defect which can be remedied in new action, then even though the SoL has expired while the first action was pending, the plaintiff is given an additional 6 months from termination to refile and reserve the defendant. o Ex: Dismissal under 1) 3211(a)2,3,6,10 2) Dismissal because arbitration is required and not litigation 3) Dismissal in federal court because there was no diversity jurisdiction 4) Where wrongful death action is commenced by a relative of the decedent but is dismissed because it should have been commenced by the estate’s representative • HOWEVER: This 6 month allowance does not apply if the first action was dismissed because of JP MD o J– lack of JURISDICTION (MOP) o P – first claim was dismissed because of plaintiff’s neglect to PRO |
