The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined New York’s borrowing statute, CPLR 202, applied to a contract with a Canadian company in which the parties agreed the contract would be “enforced” according to New York law. The borrowing statute required that Ontario’s two-year statute of limitations controlled and the action was untimely:
The [agreement] contained the following choice-of-law provision: “This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York.” * * *
CPLR 202 provides: “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.” * * *
Plaintiff argues that because the contract in this case specified that it would be “enforced” according to New York law, the parties intended to apply New York’s procedural law except for its statutory choice-of-law provisions, which, plaintiff alleges, includes CPLR 202. We conclude, however, that the mere addition of the word “enforced” to the [agreement’s] choice-of-law provision does not demonstrate the intent of the contracting parties to apply solely New York’s six-year statute of limitations in CPLR 213 (2) to the exclusion of CPLR 202. Rather, the parties have agreed that the use of the word “enforced” evinces the parties’ intent to apply New York’s procedural law. CPLR 202 is part of that procedural law, and the statute therefore applies here. 2138747 Ontario, Inc. v Samsung C&T Corp., 2018 NY Slip Op 04274, CtApp 6-12-18
CIVIL PROCEDURE (NEW YORK’S BORROWING STATUTE APPLIED TO THE CONTRACT WITH A CANADIAN COMPANY WHICH CALLED FOR THE CONTRACT TO BE ‘ENFORCED’ ACCORDING TO NEW YORK LAW, ONTARIO’S TWO-YEAR STATUTE OF LIMITATIONS RENDERED THE ACTION UNTIMELY (CT APP))/CPLR 202 (NEW YORK’S BORROWING STATUTE APPLIED TO THE CONTRACT WITH A CANADIAN COMPANY WHICH CALLED FOR THE CONTRACT TO BE ‘ENFORCED’ ACCORDING TO NEW YORK LAW, ONTARIO’S TWO-YEAR STATUTE OF LIMITATIONS RENDERED THE ACTION UNTIMELY (CT APP))/CONTRACT (CHOICE OF LAW, NEW YORK’S BORROWING STATUTE APPLIED TO THE CONTRACT WITH A CANADIAN COMPANY WHICH CALLED FOR THE CONTRACT TO BE ‘ENFORCED’ ACCORDING TO NEW YORK LAW, ONTARIO’S TWO-YEAR STATUTE OF LIMITATIONS RENDERED THE ACTION UNTIMELY (CT APP))/CHOICE OF LAW (CONTRACT LAW, (NEW YORK’S BORROWING STATUTE APPLIED TO THE CONTRACT WITH A CANADIAN COMPANY WHICH CALLED FOR THE CONTRACT TO BE ‘ENFORCED’ ACCORDING TO NEW YORK LAW, ONTARIO’S TWO-YEAR STATUTE OF LIMITATIONS RENDERED THE ACTION UNTIMELY (CT APP))/BORROWING STATUTE (CIVIL PROCEDURE, CIVIL PROCEDURE (NEW YORK’S BORROWING STATUTE APPLIED TO THE CONTRACT WITH A CANADIAN COMPANY WHICH CALLED FOR THE CONTRACT TO BE ‘ENFORCED’ ACCORDING TO NEW YORK LAW, ONTARIO’S TWO-YEAR STATUTE OF LIMITATIONS RENDERED THE ACTION UNTIMELY (CT APP))/STATUTE OF LIMITATIONS (NEW YORK’S BORROWING STATUTE APPLIED TO THE CONTRACT WITH A CANADIAN COMPANY WHICH CALLED FOR THE CONTRACT TO BE ‘ENFORCED’ ACCORDING TO NEW YORK LAW, ONTARIO’S TWO-YEAR STATUTE OF LIMITATIONS RENDERED THE ACTION UNTIMELY (CT APP))