GML, Inc., et al. v. Cinque & Cinque, P.C., et al.

Tennessee plaintiffs commenced this legal malpractice
action against New York defendants, in which they assert that the Tennessee statute of limitations applies (see CPLR 202).
Invoking Tennessee law, plaintiffs further assert that their
claim should be tolled because of defendants' absence from
Tennessee. Defendants moved for summary judgment arguing that
the matter was untimely. Supreme Court granted defendants'
motion, which the Appellate Division unanimously affirmed,
opining that "[t]he tolling provision in the Tennessee statute
was not available to plaintiffs, . . . even where, as plaintiffs
claim herein, defendants have not developed sufficient contacts
with the foreign state for its courts to be capable of asserting
personal jurisdiction over them" (35 AD3d 195 [citing Insurance
Co. of N. Am. v ABB Power Generation, 91 NY2d 180 [1997]).
Plaintiffs contend that since defendants were not subject to in
personam jurisdiction in Tennessee, plaintiffs should be able to
utilize Tennessee's tolling provision.

In ABB Power, the issue was whether the Second Circuit
correctly held in Stafford v International Harvester Co. (668 F2d
142, 153 [1981]) "that a cause of action cannot accrue for
purposes of [CPLR 202] in a state which could not exercise
jurisdiction over the cause of action." We held that the plain
and literal meaning of a cause of action accruing without the
state means when the cause of action comes into existence, not
that a defendant is subject to suit in that other state (see ABB
Power at 186). We further held that "CPLR 202 requires that a
court, when presented with a cause of action accruing outside New York, should apply the limitation period of the foreign
jurisdiction if it bars the claim" (ABB Power at 187).
Furthermore, when "borrowing the [foreign jurisdiction's] Statute
of Limitations, its tolling statute is also borrowed" (Childs v
Brandon, 60 NY2d 927, 929 [1983]), as the purpose of a tolling
statute is to allow a plaintiff additional time to serve a
defendant where defendant's absence from the jurisdiction has
made service a practical impossibility.

This action was commenced in New York and, as such, it
was not necessary to toll the statute of limitations since
defendants -- residents of New York -- were amenable to suit in
New York for the entire period of Tennessee's statute of
limitations. It is irrelevant whether defendants are also
subject to suit in Tennessee and unnecessary to determine whether
defendants were subject to personal jurisdiction in Tennessee. A
conclusion to the contrary would cause the statute of limitations
to be tolled indefinitely against these defendants. We do not
believe that the Legislature intended this result in enacting
CPLR 202.

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For the full text of this decision, see: http://www.courts.state.ny.us/ctapps/decisions/oct07/ssm20mem07.pdf