Legal Malpractice

The Borrowing Statute and Legal Malpractice

By (Andrew Lavoott Bluestone)

"It might seem unjust, or even perverse, for a pro se plaintiff to lose just because he happened to sue in his home state, instead of where he believes the injury occurred, and where an attorney probably would have recommended he sue. But the Court's job is to apply applicable statutes fairly and impartially. And here, New York has chosen to favor legal "clarity" over flexible limitations rules. See Insurance Co. of North America, 91 N.Y.2d at 186. [*8] It is not the Court's job to quibble with that policy decision."  This apt description of the borrowing statue comes fromJAGER, against-  MITSCHELE, 06-CV-1938 (JS)(WDW); UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 120572.
 

"This is a legal malpractice action brought by a New York resident against a New Jersey lawyer in connection with a District of New Jersey case on appeal to the Third Circuit, which sits in Pennsylvania. Mr. Jager contends that New Jersey's limitations period controls. Mr. Ryak argues that, pursuant to New York's "borrowing" statute, N.Y. C.P.L.R. § 202, New York's statute of limitations governs. Alternatively, Mr. Ryak contends that Pennsylvania's limitations period appliess.

The Court finds that New York's limitations period controls. New York's borrowing statute provides that:
An 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, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

N.Y. C.P.L.R. § 202

"[T]he primary purpose of CPLR 202 is to prevent forum shopping by a nonresident seeking to take advantage of a more favorable Statute of Limitations in New York." [*6] Insurance Co. of North America v. ABB Power Generation, Inc., 91 N.Y.2d 180, 186, 690 N.E.2d 1249, 1252, 668 N.Y.S.2d 143, 146 (N.Y. 1997). But its secondary, "equally important" purpose is "to add clarity to the law and to provide the certainty of uniform application to litigants." Id. In this regard, § 202 does not just apply to non-residents, but also to residents whose cause of action "accrue[d] without the state," and applies New York's limitations period to such claims, regardless of whether the other state's limitations period is shorter or longer. See, e.g., Alex v. Grande, 29 A.D.2d 616, 616, 285 N.Y.S.2d 909, 911 (3d Dep't 1967); Rossi v. Ed Peterson Cutting Equipment Corp., 131 Misc. 2d 31, 498 N.Y.S.2d 283, 285-86 (N.Y. Sup. Ct., N.Y. County 1986); 75 N.Y. Jur. 2D Limitations and Laches § 113; David D. Siegel, N.Y. Prac. § 57 (4th ed.). Federal courts sitting in diversity must apply § 202, even if it results in a New York resident being subject to a shorter limitations period. See Kilmer v. Flocar, Inc., 212 F.R.D. 66, 70 (N.D.N.Y. 2002) (New York's three year limitations period, not Florida's four year, governed personal injury case arising out of Florida car accident); see also Silva v. Toll Brother's Inc., 97-CV-741, 1998 U.S. Dist. LEXIS 19894, 1998 WL 898307, at *1-2 (S.D.N.Y. 1998) [*7] ; Loral Corp. v. Goodyear Tire and Rubber Co., 93-CV-7013, 1996 U.S. Dist. LEXIS 1018, 1996 WL 38830, at *7 (S.D.N.Y. 1996). And courts must apply § 202 without conducting a typical choice-of-law analysis. See Aboushanab v. Janay, 06-CV-13472, 2007 U.S. Dist. LEXIS 71278, 2007 WL 2789511, at *3 (S.D.N.Y. 2007)."
 

Full post as published by New York Attorney Malpractice Blog on November 30, 2010 (boomark / email).