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02 Toll Problem - Zarraga

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02 Toll Problem - Zarraga Powered By Docstoc
					NEW YORK PRACTICE I                                                                        Evelyn Zarraga
Toll Problem

FACT SUMMARY:
   Paul bought a waffle iron in Boston, MA and was injured by it while still in Boston, on April 5, 2002.
   Paul is suing the waffle iron manufactured WIRCO, a foreign corporation not authorized to do
   business in NY. Paul commenced a products liability action against WIRCO in the Supreme Court,
   Albany County, on June 6, 2006, by filling a summons and complaint with the clerk of that court and
   attaching a bank account maintained by WIRCO in NY. WIRCO would not be subject to jurisdiction in
   NY but for the attachment. The issue is whether the action is timely.

RULE:
   CPLR 207 applies when the Defendant is absent from state and cause of action accrues against the
   Defendant, and it is not possible to get personal jurisdiction over the Defendant. In such a case, the
   statute of limitation does not run until the Defendant comes into state. CPLR 207 also applies when
   the Defendant leaves state after cause of action has accrued and remains absent for 4 months or
   more, or remains within the state under a false name. In both cases, the running of the statute of
   limitations is suspended for period of absence or residence under a false name. Under CPLR 207(3),
   however, the extension does not apply when there is basis for exercise of in personum jurisdiction
   over the Defendant; i.e. when the Defendant can be reached through long arm jurisdiction.

ANALYSIS
   WIRCO is a foreign corporation not authorized to do business in NY. Under CPLR 301 physical
   presence, corporate presence and domicile would supply general jurisdiction. The fact that WIRCO is
   a foreign corporation, who does not have a presence in NY indicates that NY does not have general
   jurisdiction over WIRCO in NY. In fact, but for the attachment WIRCO would not be subject to
   jurisdiction NY. Where there is no general (presence-based) jurisdiction, there has to be specific
   (longarm) jurisdiction. If the defendant can be reached through long arm jurisdiction then the
   extension under CPLR 207 for the Defendant’s absence from state would not apply to Paul’s COA.

CONCLUSION
   Breaches of warranty (express or implied) claims accrue when the breach occurs, that is upon
   “tender of delivery” regardless of the aggrieved party’s lack of knowledge of the breach. A products
   liability claim based in negligence would accrue at the time of the injury. Paul bought the waffle iron
   in Boston, MA and was injured by it while still in Boston, on April 5, 2002. There is a 6 year SOL
   period on an action based upon a contractual obligation or liability, express or implied and a 3 year
   SOL period on actions based in negligence for strict products liability. An action for breach of
   warranty action commenced on June 6, 2006 would be within the 4 year SOL period and would be
   timely, however, an action brought would under negligence/tort strict products liability would not
   meet the 3 year SOL period and would not be timely.

    Notes:
    CPLR 302 supplies personal jurisdiction by acts of non-domiciliarie (long arm jurisdiction). Under
    CPLR 302(a)(3) “A court may exercise personal jurisdiction over any non-domiciliary, or his executor
    or administrator, who in person or through an agent (1)Transacts any business within the state or
    contracts anywhere to supply goods or services in the state; or (2) Commits a tortious act within the
    state, except as to a cause of action for defamation of character arising from the act; or (3) commits
    a tortious act without the state causing injury to person or property within the state, except as to a
cause of action for defamation of character arising from the act, if he (i) regularly does or solicits
business, or engages in any other persistent course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect
the act to have consequences in the state and derives substantial revenue from interstate or
international commerce;”

				
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