The First Department, in a full-fledged opinion by Justice Gische, determined a broad choice of law provision in a contract required the application of New York’s borrowing statute (CPLR 202). Plaintiff is a corporation incorporated under the law of the Province of Ontario Canada. The statute of limitations for breach of contract under Ontario law is two years. New York’s statute of limitations is six years. Because, under the facts, New York’s borrowing statute applies and therefore the Ontario statute of limitations controls, the action is untimely:
The borrowing statute is itself a part of New York’s procedural law and is a statute of limitations in its own right, existing as a separate procedural rule within the rules of our domestic civil practice, addressing limitations of time … . Thus, applying the borrowing statute is perfectly consistent with a broad choice-of-law contract clause that requires New York procedural rules to apply to the parties’ disputes. 2138747 Ontario, Inc. v Samsung C&T Corp., 2016 NY Slip Op 06671, 1st Dept 10-11-16
CIVIL PROCEDURE (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CONTRACT LAW (CHOICE OF LAW, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CORPORATION LAW (CHOICE OF LAW CONTRACTUAL PROVISION, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/STATUTE OF LIMITATIONS (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/BORROWING STATUTE (NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)/CHOICE OF LAW (CONTRACT, NEW YORK’S BORROWING STATUTE APPLIES PURSUANT TO CONTRACTUAL CHOICE OF LAW PROVISION; UNDER THE BORROWING STATUTE, THE CANADIAN STATUTE OF LIMITATIONS APPLIES AND RENDERS THE ACTION BROUGHT BY A CANADIAN PLAINTIFF UNTIMELY)