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Current Developments in the Commercial Divisions of the
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Posted: January 20, 2017

No Dismissal on Foreign Statute of Limitations: Insufficient Evidence of Foreign Law

On January 9, 2017, Justice Kornreich of the New York County Commercial Division issued a decision in Multibank, Inc. v. Access Global Capital LLC, 2017 NY Slip Op. 30036(U), declining to dismiss an action based on a foreign statute of limitations because of insufficient evidence of foreign law, explaining:

When a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitation periods of both New York and the jurisdiction where the cause of action accrued. . . . Consequently, under CPLR 202, to be considered timely, Multibank’s claims must be timely under both New York and Panamanian law. . . .

On this motion, the Besch Defendants are not entitled to dismissal based on the applicable Panamanian statutes of limitation. CPLR 3016(e) provides that where a defense is based upon the law of a foreign country or its political subdivision, the substance of the foreign law relied upon shall be stated. CPLR 3016(e) must be read together with CPLR 4511(b), which states that the court may take judicial notice of foreign law if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. CPLR 4511 (d) further provides that a:

copy of a statute or other written law contained in a book or publication, purporting to have been published by a government or commonly admitted as evidence of the existing law in the judicial tribunals of the jurisdiction where it is in force, is prima facie evidence of such law and the unwritten or common law of a jurisdiction may be proved by witnesses or printed reports of cases of the courts of the jurisdiction.

(emphasis added).

While this court may choose to take judicial notice of laws of a foreign jurisdiction, it is only required to do so when the party requesting the notice provides sufficient information to enable it to comply with the request. Expert affidavits interpreting the relevant legal provisions can be a basis for constructing foreign law when accompanied by sufficient documentary evidence. However, this court may decline to take judicial notice of foreign law if it is not provided with sufficient information about the applicability of that law, including the very foreign statutes at issue.

(Internal quotations and citations omitted). The court went on to find that the defendants’ expert affidavit was not sufficient under CPLR 4511.

This decision also has an interesting discussion of non-parties being bound by tolling agreements and equitable tolling.

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