Date: 01-18-2007

Case Style: Reliance Insurance Company v. Polyvision Corporation

Case Number: 06-1717-cv

Judge: Winter

Court: United States District Court for the Eastern District of New York, New York County

Plaintiff's Attorney:

GARY A. WILSON (John W. Dornberger on the brief), Post & Shell, P.C., Philadelphia, PA, for Plaintiff- Appellant.

Defendant's Attorney:

MICHAEL C. MODANSKY, Bivona & Cohen, P.C., New York, NY (James A. Gallagher, Jr., Gallagher Gosseen Faller & Crowley, Garden City, NY, on the brief), for Defendant-Third-Party-Plaintiff- Appellee.

STEVEN E. GARRY, Costello Shea & Gaffney LLP, New York, NY, for Third-Party- Defendant-Appellee.

Description:

Reliance Insurance Company ("RIC"), a Pennsylvania insurance company now in liquidation, appeals from Judge Wexler's dismissal of its claims against PolyVision Corporation ("PolyVision"). RIC concededly brought the claim after the expiration of the applicable statute of limitations. However, it argues that because an identical action had been timely brought in New York state court by Reliance Insurance Company of New York ("RNY") -- a company whose relation to RIC is in dispute -- RIC should be given the benefit of New York's savings statute, N.Y. C.P.L.R. § 205(a) (McKinney 2003). Judge Wexler rejected this argument and held that RIC's claims were time-barred. RIC appeals that dismissal.

Whether RIC is entitled to the benefit of Section 205(a) is a threshold issue, but the outcome is not settled by any applicable New York decision. Given the interest of New York in having New York courts resolve this issue, we certify the question to the New York Court of Appeals.

* * *

Outcome: We conclude that an unresolved, important, and determinative issue of state law is central to this case, and thus certification to the New York Court of Appeals is appropriate.

Pursuant to Second Circuit Local Rule § 0.27 and New York Court of Appeals Rule § 500.27, we certify the following question to the New York Court of Appeals:

(1) Does New York CPLR § 205(a) allow a corporation to refile an action within six months when a previous, timely-filed action has mistakenly been commenced in the name of a different, related corporate entity, and has been dismissed for naming the wrong plaintiff?

The New York Court of Appeals may, of course, reformulate or expand upon this question as it sees fit.

It is hereby ordered that the Clerk of the Court transmit to the Clerk of the New York Court of Appeals a Certificate in the form attached, together with a copy of this opinion and a complete set of the briefs, appendices, and record filed by the parties in this Court. This panel retains jurisdiction to decide the case once we have had the benefit of the views of the New York Court of Appeals, or once that court declines certification.

We order the parties to bear equally any fees and costs that may be required by the New York Court of Appeals.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None