Rescildo by Rescildo v. R.H. Macy's

• Decision Date: 28 January 1993
• Citation: 187 A.D.2d 112,594 N.Y.S.2d 139
• Parties: Kevin M. RESCILDO, an infant by his father and natural guardian, Raymond RESCILDO, and Raymond Rescildo, Individually, Plaintiffs-Appellants, v. R.H. MACY'S a/k/a Bamberger's Department Stores, and Fabil Mfg. and Sure Snap, Inc., Defendants-Respondents. Fabil Manufacturing, Inc., Third-Party Plaintiff, Sure Snap, Inc., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 139

594 N.Y.S.2d 139

187 A.D.2d 112

Kevin M. RESCILDO, an infant by his father and natural guardian, Raymond RESCILDO, and Raymond Rescildo Individually, Plaintiffs-Appellants, v. R.H. MACY'S a/k/a Bamberger's Department Stores, and Fabil Mfg. and Sure Snap, Inc., Defendants-Respondents Fabil Manufacturing, Inc., Third-Party Plaintiff, Sure Snap, Inc. Third-Party Defendant.

Supreme Court, Appellate Division First Department.

Jan. 28, 1993.

Brian J. Shoot, of counsel (Gary Ehrlich, with him on the brief, Schneider, Kleinick & Weitz, P.C., New York City, attys.), for plaintiffs-appellants.

Mark C. Dillon, of counsel (Cerussi & Spring, White Plains, attys.), for defendant-respondent R.H. Macy's.

Barry R. Ostrager, of counsel (Andrew S. Amer and Eric S. Kobrick, with him on the brief, Simpson Thacher & Bartlett, New York City, attys.), for defendant-respondent Sure Snap, Inc.

Before MURPHY, P.J., and KUPFERMAN, CARRO, KASSAL and WALLACH, JJ.

KASSAL, Justice.

This personal injury action, which accrued in the State of Connecticut and involves a Connecticut infant plaintiff, raises issues with respect to when, and to what extent, the New York "borrowing statute", CPLR 202, may be invoked to import the laws of a foreign forum. For the reasons that follow, we "borrow" and apply Connecticut's statute of limitations solely with respect to the defendant found to have been amenable to suit in that State during the relevant period, and we decline to accept the doctrine of renvoi with its circuitous route of return to the New York statute of limitations.

The infant plaintiff, Kevin Rescildo, is a Connecticut resident who, on July 8, 1982, sustained injuries resulting in blindness to his left eye. The accident, which occurred at the then five-year-old's home, involved an allegedly defective children's belt manufactured by defendant Sure Snap, a New York corporation, and then sold to defendant Fabil, a New York distributor. The belt was purchased by the infant plaintiff's uncle from Bamberger's, a division of Macy's, located in Nanuet, New York.

In February 1986, plaintiff Raymond Rescildo commenced this personal injury action on behalf of Kevin, his son, and individually, against Macy's and Fabil. In essence, plaintiffs allege that the child's belt was negligently designed with a sharp metal buckle attached to a highly elasticized strap that could, and in this case allegedly did, snap back and injure the child user. In June 1986, Fabil brought a third-party action against Sure Snap, and plaintiffs subsequently served a summons and complaint naming the latter in the main action.

Each of the defendants moved before the IAS court for summary judgment based upon the affirmative defense that plaintiffs had failed to institute suit within the Connecticut three-year statute of limitations period, applicable pursuant to New York's "borrowing statute", CPLR 202, which provides as follows:

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time 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.

Plaintiffs opposed the motions for summary judgment, arguing, inter alia, that defendants had not been subject to the jurisdiction of the Connecticut courts during the relevant period, and that CPLR 202 did not, therefore, apply. ¹

By order and judgment entered June 13, 1988, Justice Danzig granted defendants' motions, and plaintiffs appealed. On November 30, 1989, this Court held plaintiffs' appeal in abeyance, and remanded the matter for an immediate trial, pursuant to CPLR 3212(c), to determine the amenability of defendants to suit in Connecticut during the applicable period, July 8, 1982 through July 8, 1985 (155 A.D.2d 379, 548 N.Y.S.2d 164). This was a threshold matter, to be resolved before determination of whether the borrowing statute had properly been invoked (see, Childs v. Brandon, 60 N.Y.2d 927, 929, 471 N.Y.S.2d 40, 459 N.E.2d 149; Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243).

A trial was held before a Special Referee and, by order entered on or about March 10, 1992, Justice Cohen confirmed the Referee's findings that Connecticut had in personam jurisdiction over defendant Fabil, but not over defendants Sure Snap and Macy's. No party has challenged the finding of Connecticut jurisdiction over defendant Fabil during the relevant period, and we accordingly do not reach that portion of Justice Cohen's order.

With respect to defendants Sure Snap and Macy's, which have submitted supplemental briefs on the issue of in personam jurisdiction, we have examined the record and conclude that the Referee's findings, confirmed by the IAS court, are amply supported.

Defendant Sure Snap, a New York corporation with its principal place of business in New York City, made no showing that it had ever maintained offices, bank accounts, or real property in Connecticut. Also conspicuously absent from the record was proof that Sure Snap sold products to Connecticut residents, that its employees had ever entered the State of Connecticut to solicit business, or that it had ever advertised, attended trade shows, or assigned sales personnel to the State of Connecticut. We note, further, that Sure Snap makes no claim of having ever filed a "Certificate of Authority" which, pursuant to Conn.Gen.St. § 33-396, would identify it as a foreign corporation doing business in Connecticut.

Thus, we affirm the finding that Sure Snap's presence and activity in Connecticut were insufficient to meet constitutional standards, i.e., that it maintained the degree of "continuous and systematic general business contacts" with that state which would justify the exercise of in personam jurisdiction (Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 415-416, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 [citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445-46, 72 S.Ct. 413, 418, 96 L.Ed. 485].

Similarly, defendant Macy's, also a New York corporation, failed to proffer sufficient proof of its presence in Connecticut for that State to assume in personam jurisdiction. A certificate to do business which had been filed by Macy's in Connecticut was withdrawn in September 1978. Moreover, Macy's sole proof that it operated "several stores" in Connecticut consisted of two police reports describing incidents that occurred after the relevant period at a "Macy's Department Store" in Stamford. In addition, there was no proof to establish that the business entity referred to in the police reports was related to defendant R.H. Macy's, Inc., or even that Bamberger's, from which the belt was purchased, was a division of Macy's during the period in question. Finally, the existence of Connecticut residents holding Macy's credit cards did not, as this defendant contends, provide the requisite contacts, since "[t]he unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State" (Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528).

Accordingly, Sure Snap and Macy's have failed to establish that in personam jurisdiction could have been exercised over them in Connecticut during the relevant period, and the CPLR 202 borrowing statute is inapplicable (see, ...