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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: May 17, 2019

Where Company Lacked a Principal Place of Business in Any One State, its Residence For Purposes of the Borrowing Statute Was Its State of Incorporation

On May 9, 2019, the First Department issued a decision inĀ Interventure 77 Hudson LLC v. Falcon Real Estate Inv. Co., LP, 2019 NY Slip Op. 03670, holding that where a company lacked a principal place of business in any one state, its residence for purposes of the borrowing statute was its state of incorporation, explaining:

The motion court correctly granted defendant Hill’s motion for summary judgment dismissing all but the claim for breach of fiduciary duty, and granted defendant IRES’s motion in its entirety, finding plaintiffs’ claims time barred under the Delaware statute of limitations, and our application of New York’s borrowing statute. Plaintiffs hold commercial real estate across the country, and there is no evidence that they have a principal place of business in any one state. Accordingly, the motion court reasonably designated plaintiffs’ residence as Delaware, their state of incorporation. In addition, given that plaintiffs’ injury was purely economic, the place of their injury for purposes of the borrowing statue is normally deemed their residence, where the economic impact of defendants’ conduct is sustained. Accordingly, the Delaware statute of limitations applies to this action.

(Internal quotations and citations omitted).

It is not unusual for the statute of limitations to be an issue in complex commercial litigation. And the particular issue here–the rule in CPLR 202 that the statute of limitations used by a New York court sometimes is the statute of limitations of another state (or even country)–is an issue our clients, which are located all over the world, sometimes face. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding which statute of limitations applies to an action brought by a non-New York litigant.

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