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09-2594-cv 

Gerena v. Korb 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

August Term, 2009 

(Argued February 9, 2010) (Decided July 29, 2010) 

Docket No. 09-2594-cv 

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ALEXANDRA GERENA, CONSTANCE GERENA, 

 

 

17 Plaintiffs-Appellants, 

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 - against - 

GREGORY KORB, YALE UNIVERSITY, 

23 Defendants-Appellees. 

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27 B e f o r e: POOLER and LIVINGSTON, Circuit Judges, 

 and TRAGER, District Judge.

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Appeal from a judgment of the United States District Court for the District of 

Connecticut (Eginton, J.) entered on May 15, 2009, dismissing for failure to timely effect service 

and untimeliness of the claims under Connecticut law. 

 The judgment of the district court is affirmed in part, reversed in part, and remanded. 

*

 The Honorable David G. Trager of the United States District Court for the Eastern District of 

New York, sitting by designation.
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 DAVID L. RABIN, Esq., 

 Mount Kisco, NY, 

4 for Plaintiffs-Appellants

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 ROSEMARIE PAINE, Esq., 

New Haven, Connecticut, 

8 for Defendant-Appellee Gregory Korb 

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PATRICK M NOONAN, Esq., COLLEEN 

NOONAN DAVIS, Esq., 

 Guilford, CT, 

13 for Defendant-Appellee Yale University
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Trager, J. 

Alexandra Gerena ("Alexandra") and her mother Constance Gerena (collectively, "the 

Gerenas" or "appellants") appeal from the judgment of the United States District Court for the 

District of Connecticut (Eginton, J.) dismissing their case under Federal Rule of Civil Procedure 

4(m) for failure to timely serve defendants Yale University ("Yale") and Gregory Korb ("Korb"), 

and additionally finding the Gerenas' claims untimely under Connecticut law. For the reasons 

explained below, we affirm the district court's dismissal of the suit against Yale for failure to 

timely serve. However, we disagree with the district court's conclusion that the Gerenas' time to 

serve Korb was never extended. With respect to the district court's second ground for dismissal 

of the claims against Korb – untimeliness under Connecticut's statute of limitations – there is a 

preliminary choice of law issue that was not explored in the opinion below. We therefore 

remand for a determination of whether personal jurisdiction over Korb existed in New York, 

such that New York choice of law should have governed the Gerenas' claims against Korb. 

Background

(1)

Underlying Events and Commencement of the Action

 The Gerenas commenced this action in New York Supreme Court, Bronx County, on 

April 24, 2007. They are seeking damages arising out of an incident that occurred in August 

2005, at the beginning of Alexandra and Korb's sophomore year of college at Yale. According 

to the complaint filed by Alexandra and her mother, Korb sexually and physically assaulted 

Alexandra in her dorm room after a Yale-sponsored back-to-school social event. Defendant Yale 
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allegedly did little to prevent this assault or other similar assaults and did not punish offenders 

adequately. As a result, Alexandra and her mother are asserting claims of intentional conduct 

against Korb and negligence, willful misconduct and recklessness against Yale. 

The Gerenas claim that shortly after their state complaint was filed, but before service, 

Yale sent one of its employees to obtain a copy of the state court summons and complaint; Yale 

disputes whether this occurred and the significance of it. In any event, on May 22, 2007, Yale 

removed the action to the Southern District of New York on diversity grounds, where it was 

assigned to Judge Sand. At that point, neither Yale nor Korb had been served with the complaint 

in the state action, although both obviously were aware of the action, given that Yale had 

effectuated removal with Korb's consent. The 120-day federal time limit for service of process 

therefore began to run on May 22, 2007 and expired on September 19, 2007. See Fed. R. Civ. P. 

4(m). 

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(2) 

Service on the Defendants 

a. Service on Yale 

One month after this 120-day time period expired, on October 29, 2007, plaintiffs served 

Yale with a state court summons, which Yale believed was insufficient since the case had been 

removed to federal court. Soon after, Yale moved for dismissal on the ground of improper 

service, or alternately, for transfer to Connecticut under 28 U.S.C. § 1404(a). About eight 

months later, on August 1, 2008, plaintiffs finally served Yale with a federal court summons. A 
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few weeks after this, on August 26, 2008, Judge Sand granted Yale's motion to transfer to the 

District of Connecticut. 

b. Service on Korb 

 In their brief, the Gerenas explain that they had a difficult time serving Korb. According 

to appellants, Korb began studying overseas in the spring of 2007. Korb was originally 

scheduled to return to the United States at the end of May 2007, but appellants were advised that 

month by Korb's probation officer that he was remaining overseas. Although appellants 

apparently attempted to serve Korb through his parents several times during the summer of 2007, 

and enlisted the Essex County Sheriff to aid in these attempts, Korb's parents repeatedly refused 

service. The record includes an affidavit of service from an Essex County Sheriff stating: 

"[U]nable to serve, spoke with the deft's father who refused to accept the papers. The 

undersigned instructed the father to have his son contact the undersigned. Deft. avoiding service. 

Undersigned made over 3 attempts." 

In December 2007, counsel for Korb filed a motion to dismiss plaintiff's complaint for, 

inter alia, lack of personal jurisdiction and failure to serve process. On December 13, 2007, 

however, Judge Sand adjourned both Korb's and Yale's motions to dismiss in order to give 

plaintiffs an opportunity to properly effect service. 

Failed attempts at service on Korb continued throughout the spring of 2008. In summer 

2008, plaintiffs made an ex parte motion to Judge Sand to appoint a United States marshal to 

serve Korb. Judge Sand held a teleconference with the parties shortly thereafter.1 During this 

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 Although the motion for service by marshal was made ex parte, all parties somehow heard 

about it and had counsel present for the teleconference. 
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conference, after noting that Korb seemed to be playing a cat-and-mouse game with plaintiffs 

regarding service, Judge Sand declined to grant Korb's motion to dismiss for lack of personal 

jurisdiction, explaining that he would not do so "under circumstances which deprived the 

plaintiffs' counsel of questioning [whether New York personal jurisdiction might exist], for 

example . . . letting [the Gerenas' attorney] depose Mr. Korb about the extent of his contacts in 

New York." 

Judge Sand granted plaintiffs' ex parte motion for service by marshal on July 8, 2008, 

stating that "good cause has been shown in support of the application that the defendant Korb has 

made himself unavailable for service by other means." A Connecticut state marshal finally 

effected service on Korb on October 1, 2008, after the case had been transferred to Connecticut. 

United States marshals also served Korb in November 2008. 

(3) 

Decision Below 

This case came before Judge Eginton of the District of Connecticut in August 2008. In 

October 2008, Korb renewed his motion to dismiss for untimely service and expiration of the 

statute of limitations. Yale made motions on the same grounds the following month. Judge 

Eginton granted both defendants' motions on May 15, 2009. He first found that service on both 

defendants was untimely, as neither was served within 120 days and no extensions of time for 

service were requested or granted. Applying Connecticut law, he further found that the Gerenas' 

claims against both defendants were barred by the relevant statutes of limitations. 

 
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Standard of Review

We review a district court's dismissal for failure to timely serve process under Fed. R. 

Civ. P. 4(m) for abuse of discretion. Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir. 

2007); 

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see also Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) (adopting abuse of 

discretion standard of review for Rule 4(m) dismissals). "A district court has abused its 

discretion if it has (1) based its ruling on an erroneous view of the law, (2) made a clearly 

erroneous assessment of the evidence, or (3) rendered a decision that cannot be located within 

the range of permissible decisions." 

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Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) 

(internal quotation marks omitted). A district court's choice of law and its application of a statute 

of limitations are reviewed 

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de novo as questions of law. See Abdullahi v. Pfizer, Inc., 562 F.3d 

163, 190 (2d Cir. 2009); 

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Somoza v. New York City Dep't of Educ., 538 F.3d 106, 112 (2d Cir. 

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Discussion 

(1) 

Dismissal for Failure to Timely Serve 

We begin with the district court's decision to dismiss the Gerenas' claims against Yale 

and Korb for failure to effect timely service under Federal Rule of Civil Procedure 4(m). Rule 

4(m) provides: 

If a defendant is not served within 120 days after the complaint is 

filed, the court – on motion or on its own after notice to the plaintiff 

– must dismiss the action without prejudice against that defendant or 

order that service be made within a specified time. But if the plaintiff 

shows good cause for the failure, the court must extend the time for 

service for an appropriate period. 
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1 We have interpreted this rule to give wide latitude to courts in deciding when to grant extensions 

2 on time to serve, including permitting courts to grant extensions even absent good cause. See

Zapata, 502 F.3d at 196. Because we find here that the district court was within the bounds of 

its discretion in determining that the Gerenas had neither sought nor received an extension of 

time to serve Yale, we affirm its dismissal of the case against Yale under Rule 4(m). However, 

for the reasons explained below, it was an abuse of discretion to find that plaintiffs' time to serve 

Korb had not been extended by Judge Sand prior to transfer. 

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a. Dismissal under Rule 4(m) against Yale was proper 

The district court did not abuse its discretion in determining that service on Yale was 

untimely. Although the Gerenas' case was removed to federal court on May 22, 2007, they did 

not serve Yale until October 29, 2007, and at that point served only a state court summons. It 

was not until August 1, 2008 that plaintiffs served Yale with a federal summons. 

Appellants primarily argue that Yale had notice of this lawsuit before it was removed to 

federal court, as evidenced by the fact that Yale had someone pick up a copy of the complaint 

from the Bronx County Clerk. However, the simple fact that Yale obtained a copy of the state 

court complaint against it is insufficient for service to be deemed effective under New York law. 

See Macchia v. Russo, 67 N.Y.2d 592, 594 (1986) ("In a challenge to service of process, the fact 

that a defendant has received prompt notice of the action is of no moment. Notice by means 

other than those authorized by statute does not bring a defendant within the jurisdiction of the 

court." (internal citations omitted)). The Gerenas' additional arguments that Yale waived any 

jurisdictional objections by removing the action from state to federal court, or by commencing 

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1 discovery, are similarly unavailing. Yale promptly and repeatedly raised the defense of defective 

2 service. See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60-63 (2d Cir. 1999); Cantor 

3 Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 157 n.4 (2d Cir. 1996). 

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A stronger argument for appellants is that their delivery to Yale of a state court summons 

might have adequately effected service as of October 29, 2007. There is a clear split of authority 

on whether or not service of a state court summons, after removal to federal court, is sufficient to 

effect service. See Minter v. Showcase Sys., Inc., 641 F. Supp. 2d 597 (S.D. Miss. 2009) 

(collecting cases on both sides – though none from courts in the Second Circuit – and ultimately 

determining that the view that federal service could be completed by delivery of the state court 

summons after removal was correct). We need not resolve this question here, however, because 

even if the state court summons were deemed sufficient, it too was served outside of the 120-day 

period prescribed for service. 

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See Fed. R. Civ. P. 4(m). Moreover, as Judge Eginton noted, 

there is no indication that the Gerenas sought an extension of the time to serve Yale from Judge 

Sand or that Judge Sand ever granted such an extension. 

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There are some indications in the record that Judge Sand intended to be permissive with 

the Gerenas in their service of Yale. In particular, the record contains a letter from Yale 

University to Judge Sand acknowledging that "on December 13, 2007, the Court adjourned 

defendants' motions to afford plaintiffs an opportunity to properly effect service," suggesting that 

Judge Sand may have intended to allow untimely service. However, this does not amount to a 

conclusive extension of time to serve, such that we could say that Judge Eginton abused his 

discretion in deeming the Gerenas' service of Yale untimely. We are particularly deferential to 

Judge Eginton's conclusion given that appellants still have advanced no argument as to why they 
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could not timely serve Yale. Cf. Zapata, 502 F.3d at 196 (when good cause is not shown, 

whether or not to grant an extension is a discretionary determination). 

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Because the district court acted within the bounds of its discretion in determining that 

service on Yale was untimely and that the Gerenas had never been granted an extension of time 

to serve, its decision to dismiss the suit against Yale is affirmed on this ground. 

b. Failure to timely serve Korb was excused for good cause 

The Gerenas' efforts to serve Korb stand in contrast to their lack of effort to serve Yale. 

Given the record before this court and the facts as they stood before the district court, we cannot 

agree with its conclusion that the Gerenas' service on Korb was also defective as untimely. 

In his May 2009 opinion, Judge Eginton explained that service on Korb was defective 

because Korb was untimely served and "there is no indication that plaintiffs sought an extension 

of time to perfect service or that Korb did evade service upon his return to the United States." 

This statement, however, is not supported by the record. To the contrary, the record indicates 

that plaintiffs sought an extension of time to perfect service on Korb, and that Judge Sand 

granted it. 

Specifically, Judge Sand's July 2008 order directing service by United States marshals on 

Korb operated as an extension of time to serve for good cause. During a June 2008 telephone 

conference, Judge Sand said the following to Korb's counsel about defendant Korb's avoidance 

of service: 

[T]here have been efforts to serve Mr. Korb at his parents' home [and] 

. . . to invoke the Sheriff's Office . . . . I don't think I can, on the 

papers before me, conclude that plaintiffs' counsel has taken such 

ineffective means to effect service that on that ground, . . . his motion 

[for service by marshal] should be denied . . . . [Y]our letter which 
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points out that Mr. Korb has been within the jurisdiction on a number 

of occasions and has not been served is a little bit . . . like the little 

child sticking out his or her tongue and saying, "Nah, nah, you can't 

catch me." Mr. Korb has been fully aware . . . that the plaintiff is 

seeking to serve him . . . . 

Shortly thereafter, on July 8, 2008, Judge Sand granted plaintiffs' ex parte Motion Appointing 

Marshal to Serve Defendant Korb, noting that "good cause has been shown in support of the 

application that the defendant Korb has made himself unavailable for service by other means . . . 

." 

 Korb argues that service was nevertheless untimely because although Judge Sand's order 

may have included a finding that good cause had been shown for service by marshal, "this does 

not equate to a good cause finding that the Rule 4(m) service time should be extended." Brief of 

Def.-Appellee Gregory Korb at 10. This argument, however, is implausible. It makes no sense 

that Judge Sand would order service by marshal almost a year after service originally should 

have been accomplished while not also intending to extend the time to serve. A decision to 

allow service by marshal at this point in the litigation implicitly included a decision to allow late 

service. 

Moreover, the "good cause" language used in Judge Sand's order likely references Rule 

4(m), regarding timeliness of service, not Rule 4(c)(3), permitting service by marshal. Rule 

4(c)(3) does not use the phrase "good cause," but rather simply provides: "At the plaintiff's 

request, the court may order that service be made by a United States marshal or deputy marshal 

or by a person specially appointed by the court." Fed. R. Civ. P. 4(c)(3). In contrast, Rule 4(m) 

specifically states that "if the plaintiff shows good cause for the failure [to serve], the court must 

extend the time for service for an appropriate period." Fed. R. Civ. P. 4(m). Accordingly, Judge 
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Sand's order stating that "good cause" had been shown is best read as a finding that the plaintiffs' 

failed attempts at service warranted an extension of time to serve, as well as a grant of 

permission to use the alternative method of service by marshal. And once this good cause 

finding was made, an extension of time to serve was mandatory, not discretionary. See Fed. R. 

Civ. P. 4(m); 

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see also Blessinger v. United States, 174 F.R.D. 29, 31 (E.D.N.Y. 1997) ("If the 

plaintiff has shown good cause, the extension is mandatory."). 

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We note that Judge Sand's extension on time to serve did not specify a time by which 

service was to be completed, despite Rule 4(m)'s instruction that extensions on time to serve 

should be made "for an appropriate period." It would have avoided an unnecessary issue had the 

time been specified. In this case, the appropriate period by which to extend time to serve likely 

would have been the time it took the marshals to serve. However, no argument has been raised 

that Judge Sand abused his discretion by not setting an "appropriate period" for service. 

Accordingly, we need not consider at this point the necessity of a district court explicitly 

defining an "appropriate period" when extending time to serve. Cf. In re Wireless Data, Inc., 547 

F.3d 484, 491-92 (2d Cir. 2008) (finding argument not raised on appeal to be waived). 

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Based on the record in this case prior to transfer, we conclude that the district court 

clearly erred in finding that no extension of time to serve had previously been sought by 

plaintiffs; one had been sought and had been granted by Judge Sand, along with an order for 

United States marshals to effect service. We thus reverse the district court's determination that 

Korb was not timely served. 
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(2) 

Dismissal under the Statute of Limitations 

The district court provided a second ground upon which it dismissed the claims against both 

Korb and Yale: the untimeliness of the Gerenas' claims under the applicable Connecticut statutes 

of limitations. The district court reached this result by applying Connecticut choice of law, and 

thus Connecticut's limitations period, without discussion. But there was a preliminary choice of 

law issue here that the district court failed to acknowledge. 

Federal courts sitting in diversity generally apply the law of the state in which they sit. 

However, cases that are transferred from one federal district to another present an exception to 

this general rule. When an action has been transferred, a federal court sitting in diversity must 

determine whether to apply the law of the transferor state, or the law of the transferee state in 

which it sits. If a district court receives a case pursuant to a transfer under 28 U.S.C. § 1406(a), 

for improper venue, or 28 U.S.C. § 1631, for want of jurisdiction, it logically applies the law of 

the state in which it sits, since the original venue, with its governing laws, was never a proper 

option. See Schaeffer v. Village of Ossining, 58 F.3d 48, 50 (2d Cir. 1995) (transferee laws 

apply after transfer under § 1406(a)); 

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Levy v. Pyramid Co. of Ithaca, 871 F.2d 9, 10 (2d Cir. 

1989) (transferee laws apply after transfer for lack of personal jurisdiction). In contrast, when a 

case is transferred for convenience under 28 U.S.C. § 1404(a), the law of the transferor state is to 

be applied so long as the transferor state could properly have exercised jurisdiction. 

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20 Dusen v. Barrack, 376 U.S. 612, 635-39 (1964); Fin. One Public Co. Ltd. v. Lehman Bros. 

Special Fin., Inc., 414 F.3d 325, 333-34 (2d Cir. 2005); SongByrd, Inc. v. Estate of Grossman, 

206 F.3d 172, 179-80 (2d Cir. 2000) ("[I]n a transferred action the law of the transferor 

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jurisdiction applies . . . only if the transferor court has personal jurisdiction." (internal citation 

omitted)). 

In the instant case, the district court failed to consider that New York choice of law might 

apply, since Judge Sand appears to have granted Yale's motion to transfer the case to 

Connecticut under 28 U.S.C. § 1404(a), for convenience. Yale specified that its motion was not 

being made for lack of personal jurisdiction, but rather "for the convenience of parties and 

witnesses, in the interest of justice." To be sure, Judge Sand's brief handwritten order did not 

specify which provision he was transferring under, but simply stated: "The motion to transfer the 

case to the District of Connecticut is granted in the interest of justice."2 However, given that the 

motion being granted requested transfer under § 1404(a), it seems reasonably clear that Judge 

Sand intended to transfer the action for convenience's sake without ever making a finding 

regarding personal jurisdiction. Therefore, New York law, as the governing law of the transferor 

court, should still have been applied by the District of Connecticut, as long as jurisdiction in New 

14 York would have been proper. Cf. SongByrd, Inc., 206 F.3d at 179-80. 

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Of course, if jurisdiction was not proper in New York, then the district court correctly 

applied Connecticut choice of law and Connecticut procedure. With respect to Yale, the issue 

need not be further explored, given that we are affirming the district court's opinion on the 

alternate ground that Yale was not timely served. However, with respect to Korb, whom we now 

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28 U.S.C. § 1404(a) (permitting transfer "[f]or the convenience of parties and witnesses, in the 

interest of justice"); 28 U.S.C. § 1406(a) (permitting a district court to transfer a case which is 

filed "laying venue in the wrong division or district . . . if it be in the interest of justice"); 28 

U.S.C. § 1631 (permitting transfer if a "court finds that there is a want of jurisdiction . . . if it is 

in the interest of justice"). 
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deem properly served, it must be determined whether personal jurisdiction over Korb existed in 

New York, such that New York choice of law should have governed the claims against him. 

This is not a determination we are equipped to make in the first instance. Although Korb 

vigorously disputed whether personal jurisdiction over him could be obtained in New York, the 

district court made no finding in this regard. Judge Sand, before he transferred, expressed the 

opinion that dismissal on jurisdictional grounds would have been inappropriate absent an inquiry 

into the extent of Korb's contacts in New York. Korb himself admits that he was employed in 

New York for approximately nine months in 2006. Moreover, in plaintiffs' ex parte motion to 

Judge Sand to appoint a United States marshal to serve Korb, they explain that in March 2008, 

Korb's probation officer communicated to the Gerenas that Korb was in Europe and "planning to 

attend NYU." Given that Korb clearly had some contacts with New York, we must ask the 

district court to consider more thoroughly whether Korb might have been subject to personal 

jurisdiction in New York, such that New York choice of law principles should govern the action 

against him. 

If the district court determines on remand that Connecticut law properly governs, we agree 

with its conclusion that the Gerenas' claims are barred under Connecticut law by the three-year 

limitations period contained in Conn. Gen. Stat. § 52-577. Although appellants urge that Conn. 

Gen. Stat. § 52-590, which allows for tolling when a defendant is absent from the state, should 

save their claims, this provision applies only when "by reason of the defendant's absence, it was 

impossible to commence an action in personam against the defendant." Venables v. Bell, 941 F. 

Supp. 26, 27 (D. Conn. 1996) (quoting 

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21 Dorus v. Lyon, 92 Conn. 55, 57, 101 A. 490 (1917)); see 

22 also Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 392-93, 949 A.2d 450, 457-58 
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(2008). Because Connecticut's long-arm statute authorizes personal jurisdiction over 

nonresidents who commit tortious acts within the state, Conn. Gen. Stat. § 52-590 is 

inapplicable. See Conn. Gen. Stat. § 52-59b(a). Under section 52-59b, the Gerenas could have 

served Korb at any point by serving the secretary of state and mailing a copy of the process to 

the defendant's last known address. 

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See Conn. Gen. Stat. § 52-59b(c). Furthermore, the 

possibility that equitable tolling might apply here is foreclosed by Connecticut precedent, which 

establishes Conn. Gen. Stat. § 52-577 as a statute of repose not susceptible to equitable tolling. 

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8 See Carter v. Univ. of Conn., 04-cv-1625, 2006 WL 2130730, at *3 (D. Conn. July 28, 2006), 

9 aff'd, 264 Fed. App'x. 111, 232 Ed. Law Rep. 104 (2d Cir. 2008). 

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On the other hand, if it is determined that New York law should govern, the outcome of 

the inquiry into the timeliness of the Gerenas' claims might be different. We leave it to the 

district court to determine in the first instance, if necessary, how New York law should be 

applied to the facts of this case. However, because we find the analysis a difficult one, we offer 

a few thoughts on how a New York choice of law analysis might proceed. Whereas Connecticut 

law would almost certainly govern the substantive aspects of this case under New York choice of 

law, New York still adheres to the traditional substantive/procedural dichotomy in its choice of 

law analysis and generally classifies statutes of limitations as procedural, except for those 

18 limitations periods which it designates as statutes of repose. See Tanges v. Heidelberg N. Am., 

19 Inc., 93 N.Y.2d 48, 58-59, 710 N.E.2d 250, 254-55, 687 N.Y.S.2d 604, 608-09 (1999); Stuart v. 

Am. Cyanamid Co., 158 F.3d 622, 626-27 (2d Cir. 1998) ("New York courts generally apply 

New York's statutes of limitations, even when the injury giving rise to the action occurred 

outside New York."). 

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New York's statute of limitations would thus probably govern the Gerena's claims under New 

York choice of law. Although Connecticut has categorized Conn. Gen. Stat. § 52-577's threeyear limitations period as a statute of repose, we doubt that New York courts, under the 

framework laid out by the New York Court of Appeals in Tanges, would agree for purposes of 

New York choice of law. 

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Cf. Tanges, 93 N.Y.2d at 93 (finding Connecticut's own classification 

only instructive, not binding). First, the structure and legislative history of section 52-577 do not 

suggest that its limitations period was intended to create a right, rather than merely "erect[] a 

limitation around the existing common-law causes." 

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8 Tanges, 93 N.Y.2d at 56-57; see also

Sanborn v. Greenwald, 39 Conn. App. 289, 304-05, 664 A.2d 803, 811-12 (Conn. App. 1995) 

(finding that section 52-577 did not restrict a cause of action "but, rather, only establishe[d] the 

time period in which a plaintiff must assert this right"). Furthermore, there is no compelling 

policy rationale for New York to interpret section 52-577, which merely sets forth a general torts 

limitations period, as a statute of repose. Unlike in the products liability context addressed in 

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Tanges, where there is justifiable reliance by manufacturers and their insurers on the inability of 

plaintiffs to bring suit after a certain period of time, there is no analogous justifiable reliance by 

general tortfeasors. Moreover, New York's policy of always giving its residents the benefit of 

New York's own statute of limitations, 

14 

15 

16 

see N.Y. C.P.L.R. § 202, would be undercut – in all those 

cases in which a resident was injured in the adjacent state of Connecticut – if New York were to 

treat Connecticut's general three-year limit for all general tort actions as a statute of repose. 

Accordingly, it seems likely that New York would look to its own laws, rather than to Conn. 

Gen. Stat. § 52-577, to determine the timeliness of this action. 

17 

18 

19 

20 

21 
18

1 Under New York law, an action is "commenced" upon filing, not upon service on the 

defendant. See N.Y. C.P.L.R. § 304; Gershel v. Porr, 89 N.Y.2d 327, 330-31, 675 N.E.2d 836, 

838, 653 N.Y.S.2d 82, 84 (1996). Therefore, under New York's commencement rule, the 

Gerenas' claims were commenced April 24, 2007. And because New York provides that a 

plaintiff shall have one year from the termination of any criminal proceedings against a 

defendant to commence a related civil action, 

2 

3 

4 

5 

see N.Y. C.P.L.R. § 215(8)(a), it appears that the 

Gerenas' claims, which were brought within one year of Korb's no-contest plea for related 

misdemeanor offenses on October 30, 2006, were timely under New York law. 

6 

7 

8 

9 

10 

11 

12 

13 

CONCLUSION 

For the foregoing reasons, the opinion of the district court is affirmed in part and reversed in 

part, and the case is REMANDED for a determination of whether personal jurisdiction over 

Korb existed in New York, and for further proceedings consistent with this opinion.