Legal Memorandum: Limitation Period and Tolling Provisions in NY

Issue: Can an action based upon a cause of action accruing without the state be commenced after the expiration of the time limits under the laws of either state?

               N.Y. C.P.L.R. 202 ("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.")

Vincent v. Money Store, No. 11 Civ. 7685(JGK) (S.D.N.Y. Jan. 4, 2013) (court must consider other state's limitation period and its tolling provisions. "Therefore, for the nonresident plaintiffs, their claims must be timely under the shorter limitations period of either New York or the state where the action accrued.  With respect to tolling, a nonresident is afforded the benefit only of the shorter period of New York or the state where the claim accrued."  Case involved a statutory tolling period.) 

Portfolio Recovery Assocs., LLC v. King, 14 N.Y.3d 410, 901 N.Y.S.2d 575, 927 N.E.2d 1059 (2010) (dicta that contractual choice-of-law clause does not necessarily incorporate statute of limitations for chosen jurisdiction; clause applies only to substantive issues, not to questions of procedure, such as statute of limitations; contract required application of Delaware law, but plaintiff wanted longer period provided by New York law; defendant asserted borrowing statute required court to apply Delaware 3-year statute of limitations to bar claim, as that is where economic injury occurred; opinion reverses lower courts' application of New  [...]

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