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NEW YORK RECOGNIZES CROSS-JURISDICTIONAL TOLLING OF THE STATUTE OF LIMITATIONS WHEN A CLASS ACTION IS FILED IN ANOTHER STATE OR FEDERAL COURT; THE TOLLING ENDS UPON DISMISSAL OF THE OUT-OF-STATE ACTION, EVEN WHEN NOT ON THE MERITS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge partial dissent, answering certified questions from the Second Circuit, determined: (1) New York recognizes the tolling of the statute of limitations for absent members of putative class actions filed in other state and federal courts (cross-jurisdictional tolling); and (2) the tolling of the statute ceases when the filed actions are terminated, even for reasons not on the merits (i.e., forum non conveniens or a denial of certification for any reason). Here class actions stemming from the use of a pesticide (nematicide) in the growing of bananas, involving foreign plaintiffs from countries where bananas are grown, were filed in Texas in 1993. The Texas actions were dismissed in 1995. The instant action was filed in 2012 in the Southern District of New York:

We conclude that a determination that tolling is not available cross-jurisdictionally would subvert article 9—the primary function of which is to allow named plaintiffs to bring truly representative lawsuits without necessitating a multiplicity of litigation that squanders resources and undermines judicial economy, while still ensuring that defendants receive fair notice of the specific claims advanced against them. CPLR article 9 is closely related to and modeled on Federal Rules of Civil Procedure rule 23 …, and the same animating policies the United States Supreme Court discussed in American Pipe [414 US 538] and its progeny also underlie article 9. * * *

Because recognition of cross-jurisdictional tolling implicates our statutes of limitations, a bright-line rule is necessary to provide clarity to all parties in understanding their rights and obligations and, in fairness—as with the policies underlying the application of statutes of limitations, generally—to balance the interests of both plaintiffs and defendants. Therefore, we hold that tolling ends—as a matter of law—when there is a clear dismissal of a putative class action, including a dismissal for forum non conveniens, or denial of class certification for any reason. Under those circumstances, future plaintiffs are on notice that they must take steps to protect their rights because the litigation no longer compels the court to address class certification or the named plaintiffs to advance absent class members’ interests. At that point, it is no longer objectively reasonable for absent class members to rely upon the existence of a putative class action to vindicate their rights, and tolling is extinguished … . Thus, in this case, the 1995 Texas orders that dismissed that action on forum non conveniens grounds ended tolling, as a matter of law. Chavez v Occidental Chem. Corp., 2020 NY Slip Op 05839, CtApp 10-20-20

 

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