Legal Memorandum: Application of a Foreign Statute of Repose

Issue: Will a New York court apply a foreign statute of repose?

           N.Y. Civ. Prac. L. & R. § 202 (1990) provides that a claim arising outside New York is governed by the New York or foreign statute of limitations, whichever is shorter.  Id., 428 N.Y.S.2d at 398.  When a party seeks protection of a statute of limitations other than New York’s, that person has the burden of proof.  Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243 (2d Cir. 1984).  In Icelandic Airlines, Inc., v. Canadair, Ltd. 104 Misc. 2d 239, 428 N.Y.S.2d 393 (1980), the court made no distinction between the statutes of limitations and the two-year prescription period that was part of Quebec’s substantive law.  The court found that under N.Y. Civ. Prac. L. & R. § 202, Quebec law would apply because it provided the shorter period of limitations.  Icelandic Airlines, 428 N.Y.S.2d at 398.  Under Quebec law, the cause of action was extinguished after two years.  Id.  See Stafford v. International Harvester Co., 668 F.2d 142, 152 (1981).

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