Court of Appeals on the “borrowing statute”–CPLR § 202

 CPLR § 202 Cause of action accruing without the state

Portfolio Recovery Assoc., LLC v King, 2010 NY Slip Op 03470 (Ct. App., 2010)

On April 1, 2005, nearly five years after the assignment and more
than six years after the account was canceled, Portfolio commenced this
action against King, now a resident of New York, asserting causes of
action for breach of contract and account stated. King asserts in his
answer, among other things, that upon application of CPLR 202—this
State's "borrowing statute"—Portfolio's claims are time-barred.
Specifically, King claims that Delaware's three-year statute of
limitations for breach of a credit contract (see 10 Del.C. §
8106) applies and, alternatively, Portfolio's claims are untimely under
this State's six-year breach of contract limitations period (see
CPLR 213[2]).

Portfolio obtained summary judgment on its complaint. Supreme
Court directed that judgment be entered in Portfolio's favor and the
Appellate Division affirmed (55 AD3d 1074). We now reverse.

The Appellate Division properly concluded that the Delaware choice of
law clause did not require the application of the Delaware three-year
statute of limitations to bar Portfolio's claims. Choice of law
provisions typically apply to only substantive issues (see Tanges v
Heidelberg N. Am.
, 93 NY2d 48, 53 [1999]), and statutes of
limitations are considered "procedural" because they are deemed "'as
pertaining to the remedy rather than the right'"
(id. at 54-55
quoting Martin v Dierck Equip. Co., 43 NY2d 583, 588 [1978]).
There being no express intention in the agreement that Delaware's
statute of limitations was to apply to this dispute, the choice of law
provision cannot be read to encompass that limitations period. We
conclude, however, that the Appellate Division should have applied CPLR
202 to Portfolio's claims to determine whether they were timely brought
e.g. Global Fin. Corp. v Triarc Corp.
, 93 NY2d 525, 528 [1999]
["there is a significant difference between a choice-of-law question,
which is a matter of common law, and (a) Statute of Limitations issue,
which is governed by the particular terms of the CPLR"]).

CPLR 202 provides, in relevant part, that "[a]n action based upon
a cause of action accruing without the state cannot be commenced after
the expiration of the time limited by the laws of either the state or
the place without the state where the cause of action accrued."
Therefore, "[w]hen a nonresident sues on a cause of action accruing
outside New York, CPLR 202 requires the cause of action to be timely
under the limitation periods of both New York and [*3]the
jurisdiction where the cause of action accrued"
(Triarc, 93 NY2d
at 528). If the claimed injury is an economic one, the cause of action
typically accrues "where the plaintiff resides and sustains the economic
impact of the loss" (id. at 529).

Portfolio, as the assignee of Discover, is not entitled to stand
in a better position than that of its assignor. We must therefore first
ascertain where the cause of action accrued in favor of Discover. Here,
it is evident that the contract causes of action accrued in Delaware,
the place where Discover sustained the economic injury in 1999 when King
allegedly breached the contract. Discover is incorporated in Delaware
and is not a New York resident. Therefore, the borrowing statute applies
and the Delaware three-year statute of limitations governs.

That does not end the inquiry, however, because in determining
whether Portfolio's action would be barred in Delaware, this Court must
"borrow" Delaware's tolling statute to determine whether under Delaware
law Portfolio would have had the benefit of additional time to bring the
(see GML, Inc. v Cinque & Cinque, P.C., 9 NY3d
, 951 [2007]). Delaware's tolling statute—Delaware Code §
8117—provides that:

"If at the time when a cause of action accrues against
any person, such person is out of the State, the action may be
commenced, within the time limited therefor in this chapter, after such
person comes into the State in such manner that by reasonable diligence,
such person may be served with process. If, after a cause of action
shall have accrued against any person, such person departs from and
resides or remains out of the State, the time of such person's absence
until such person shall have returned into the State in the manner
provided in this section, shall not be taken as any part of the time
limited for the commencement of the action."

Section 8117
was meant to apply only in a circumstance where the defendant had a
prior connection to Delaware, meaning that the tolling provision
envisioned that there would be some point where the defendant would
return to the state or where the plaintiff could effect service on the
defendant to obtain jurisdiction (see Williams v Congregation Yetev
, 2004 WL 2924490 *7 [SDNY 2004]). Indeed, Delaware's highest
court has held that the literal application of its tolling provision
"would result in the abolition of the defense of statutes of limitation
in actions involving non-residents" (Hurwich v Adams, 155 A2d
591, 593-594 [Del. 1959]).

There is no indication that King ever resided in Delaware, nor is
there any indication from the case law that Delaware intended for its
tolling provision to apply to a nonresident like King. Therefore, we
conclude that Delaware's tolling provision does not extend [*4]the three-year statute of limitations.
Moreover, contrary to Portfolio's contention, it is of no moment that
Portfolio was unable to obtain personal jurisdiction over King in
Delaware; this Court has held that it is not inconsistent to apply CPLR
202 in such a situation (see Insurance Co. of N. Am. v ABB Power
, 91 NY2d 180, 187-188 [1997]).

Applying Delaware's three-year statute of limitation, the instant
action should have been commenced not later than 2002. Because the
contract claims were not brought until 2005, they are time-barred in
Delaware, where the causes of action accrued, and therefore they are
likewise time-barred in New York upon application of the borrowing
statute. This holding is consistent with one of the key policies
underlying CPLR 202, namely, to prevent forum shopping by nonresidents
attempting to take advantage of a more favorable statute of limitations
in this State
(see Antone v General Motors Corp., 64 NY2d 20,
27-28 [1984]).

As a final matter, we note that only Portfolio sought summary
judgment below. Absent a cross motion for summary judgment by King, we
are not empowered to now grant that relief (see Stern v Bluestone, 12 NY3d 873, 876
[2009]; Falk v Chittenden, 11 NY3d 73, 78-79 [2008]; Merritt
Hill Vineyards v Windy Hgts. Vineyard
, 61 NY2d 106, 110-111

The bold is mine.

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