The Frist Department, reversing Supreme Court and remitting the matter for consideration of the expert evidence, determined Supreme Court may have applied the wrong Ecuadorian statute in the analysis of the statute of limitations under the borrowing statute:
Under CPLR 202, New York’s “borrowing statute,” where a nonresident plaintiff sues on causes of action that accrued outside of New York, the claims must be timely under the limitations period of both New York and the jurisdiction where the action accrued … . In effect, the shorter of the two states’ statutes of limitations controls the timeliness of the action … . …
If the foreign state does not have causes of action directly analogous to the New York causes of action, the limitations period of the foreign causes of action that are most closely analogous to the New York claims are to be applied … . …
In performing the foregoing analysis, the motion court found applicable Ecuador’s default statute, which has a 10-year statute of limitations, and thereby found plaintiff’s claims timely filed, despite the expert testimony establishing that Ecuador’s default statute is not directly applicable to plaintiff’s fraudulent conveyance claims and not the Ecuadorian cause of action most closely analogous to the New York causes of action. Andes Petroleum Ecuador Ltd. v Occidental Petroleum Co., 2023 NY Slip Op 00481, First Dept 2-2-23
Practice Point: Here the fraudulent conveyance action accrued in Ecuador. Under the borrowing statute the shorter of the New York and Ecuadorian statutes of limitations applies. Where, as here, there is no foreign statute exactly analogous to the New York cause of action, expert evidence about which foreign statute is most analogous should be considered.