Prefabco, Inc. v. Olin Corp.
| Decision Date | 10 July 1979 |
| Citation | 71 A.D.2d 587,418 N.Y.S.2d 432 |
| Parties | PREFABCO, INC., et ano., Plaintiffs-Respondents, v. OLIN CORPORATION, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Neil Woodworth, Troy, for plaintiffs-respondents.
S. B. Prystowsky, New York City, for defendant-appellant.
Before KUPFERMAN, J. P., and BIRNS, FEIN, SANDLER and LANE, JJ.
Order of the Supreme Court, New York County, entered April 17, 1978, denying defendant's motion for summary judgment dismissing the complaint on grounds of Forum non conveniens, or alternatively, as time-barred under the statute of limitations, unanimously reversed, on the law, and defendant's motion for summary judgment as time-barred under the statute of limitations granted, without costs or disbursements.
Defendant (appellant) contends that the cause of action of plaintiff accrued in Pennsylvania. Accordingly, defendant argues, the operation of CPLR § 202 mandates dismissal of this action. CPLR § 202 provides that:
(A)n action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time period limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state, the time limited by the laws of the state shall apply.
In the case at bar, it is undisputed that plaintiff is a foreign corporation. Additionally, as stated by Special Term, "it is clear, for pleading purposes, that Prefabco's cause of action is not barred by the applicable six-year statute of limitations (of New York) CPLR 213(9); see also Gemini Typographers, Inc. v. Mergenthaler Linotype Co., 48 A.D.2d 637 (368 N.Y.S.2d 210)) . . . (but that) it is undisputed that this action would be barred under the Statute of Limitations of any other state having apparent jurisdiction", (including Pennsylvania).
Accordingly, the critical issue to be resolved in order to determine the applicability of CPLR § 202 is: Whether the instant cause of action in fraud arose within or without the State of New York. Defendant correctly maintains that the action accrued without the State of New York.
The following factors are to be considered upon an analysis of the accrual of the fraud cause of action herein. Plaintiff, Prefabco, Inc., is a Pennsylvania corporation maintaining its office in that state. It was through that office in 1970, that plaintiff ordered the product of defendant, Olin...
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