21

- 3090 Afanassieva v. Page Transportation, Inc.



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC D ATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 3 t h da y of O c t o b e r , two thousand twenty

- two

. 3 4 PRESENT: 5 JOHN M. WALKER, JR. , 6 ROSEMARY S. POOLER , 7 MICHAEL H. PARK , 8 Circuit Judges. 9

_____________________________________ 10 11 TATIANA AFANASSIEVA, ARTHUR 12 KUK U YEV , 13 14 Plaintiff s -

Appellant s , 15 16

v. 21

- 3090 17 18 PAGE TRANSPORTATION, INC. , 19 MICHAEL MONTAGUE, 20 21 Defendants

- Appellees. 22

_____________________________________ 23 24 F OR PLAINTIFF S

- APPELLANT S : Vladimir Tsirkin, Vladimir Tsirkin & 25 Associates, P.A. , Hallandale Beach , FL

. 26 27 F OR DEFENDANT S

- APPELLEE S : Harold L. Moroknek, Nadia E. Niazi, 28 Marshall Dennehey Warne r Coleman & 29 Goggin, P.C., Purchase, NY

. 302 Appeal from a judgment of the United States District Court for the Northern District of 1
New York ( Sharpe , J

. ). 2
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court is AFFIRMED

. 4

Plaintiff s Tatian a Afanassieva and Arthur Kukuyev sued Defendants Michael Montague 5
and Page Transportation, Inc. based on diversity jurisdiction for personal injuries from a car 6
accident in New Jersey. The district court dismissed Plaintiffs’ complaint as time

- barred under 7
New Jersey’s statute of limitations for personal injury actions. N.J. Stat. Ann. § 2A:14

- 2(a) (West 8
2022) . Plaintiffs filed a motion for reconsideration, arguing that New York Civil Practice Law 9
and Rules (“C

. P

. L

. R

. ”) § 202 required applying New York executive orders tolling New York 10

statutes of limitations to the New Jersey statute of limitations to make their claim timely. N .Y. 11
C.P.L.R. § 202 (McKinney 2022) ; N.Y. C omp . C odes R. & R egs

. t it. 9 , § 8.202.8 (2020)

. The 12

district court denied the motion for reconsideration

. We assume the parties’ familiarity with the 13
underlying facts, procedural history, and issues on appeal. For substantially the same reasons as 14
the district court, we affirm the dismissal of Plaintiffs’ complaint. 15

We review a district court’s dismissal of a complaint under Federal Rule of Civil Procedure 16
12(b)(6) de novo

. See Goe v. Zucker , 43 F.4t h 19, 2 8 (2d Cir. 2022). Specifically, “we review the 17
district court’s interpretation and application of a statute of limitations de novo .” Bainbridge Fund 18
Ltd. v. Republic of Argentina , 37 F.4th 847, 850 (2d Cir. 2022) (cleaned up). 19

C

. P

. L

. R

. § 202, New York’s “borrowing statute,” states: 20
An action based upon a cause of action accruing without the state cannot be 21 commenced after the expiration of the time limited by the laws of either the state 22 or the place without the state where the cause of action accrued, except that where 23 the cause of action accrued in favor of a resident of the state the time limited by the 24 laws of the state shall apply. 253 N.Y. C.P.L.R. § 202. “ [ W ] hen a nonresident plaintiff sues upon a cause of action that arose outside 1

of New Yo rk, the court must apply the shorter limitations period, including all relevant tolling 2
provisions, of either: (1) New York; or (2) the state where the cause of action accrued .” Thea v. 3

Kleinhandler , 807 F.3d 492, 49 7 (2d Cir. 2015) (quoting Stuart v. Am

. Cyanamid Co. , 158 F.3d 4
622, 627 (2d Cir. 1998)). The calculation of the foreign state’s statute of limitations must include 5

“ all the extensions and tolls applied in the foreign state

. ” Id. at 500 ( cleaned up ); see also Antone 6

v. Gen

. Motors Corp., Buick Motor Div

. , 473 N.E.2d 742, 747 ( N.Y. 1984) (“ It is true that in 7

‘ borrowing ’ a Statute of Limitations of another State, a New York court will also ‘ borrow ’ the 8

other State ’ s rules as to tolling. ”)

. 9

At the start of the COVID

- 19 pandemic, New Jersey ’s Chief Justice issued a series of 10

orders extending New Jersey filing deadlines for 56 days. 1 New York’s G overnor issued executive 11
orders tolling New York statutes of limitations for 228 days

. See N.Y. C omp . C odes R. & R egs

. 12

t it. 9 , § § 8.202. 67, 8.202.8 (2020)

. 13
The parties agree that Plaintiffs’ cause of action accrued on April 5, 2018, Plaintiffs are 14
New Jersey residents, and C

. P

. L

. R

. § 202 applies. The district court found that Plaintiffs should 15
have brought their claims by June 1, 2020. It a rrived at this deadline by adding the 56

- day 16

extension for New Jersey filing deadlines to the two

- year statute of limitations for personal injury 17

claims under New Jersey law

. 2 Plaintiffs did not file their claims until September 15, 2020, so the 18

1 See Order

– (a) Permitting the Extension of Civil and Family (Dissolution) Discovery Deadlines and (b) Tolling Filing Deadlines Through March 27 for All Matters , N.J. Cts. (Mar. 17, 2020), available at https://www.njcourts.gov/notices/2020/n200317d.pdf; Notice and Order

– Covid

- 19

– Sec ond Omnibus Order on Court Operations and Legal Practice , N.J. Cts. (Apr. 24, 2020), available at https:// www.njcourts.gov/notices/2020/n200424a.pdf.

2 A New Jersey court recently interpreted the state’s pandemic

- related orders as suspending, not tolling the statutes of limitations. See Barron v. Gersten , 277 A.3d 502, 506 (N.J. Super. Ct. App. Div. 2022) ( “The order did not have the effect of adding days to any statute of limitations.”)

. Whether the New Jersey orders to lled or suspended the deadlines here , Plaintiffs were untimely under either calculation.4 district court found the claims to be untimely. 1

Plaintiffs argue that the district court should have applied New York ’s 228

- day tolling 2
period instead of New Jersey’s 56

- day period

. This is incorrect

. For causes of action acc r uing 3
outside New York, C.P.L.R. § 202 applies the shorter limitations period as between that state (here 4
New Jersey) and New York , unless the plaintiffs are New York residents, in which case, they may 5
benefit from the New York limitations period if it is l onger. P laintiffs here are New Jersey 6
residents, so the exception does not apply and the shorter limitations period applies. See Thea , 7

807 F.3d at 497. 8

C ourts applying C.P.L.R. § 202 have consistently made two separate calculations. First, 9

t hey look to the foreign state’s “whole body of limitations law” and calculate the foreign state’s 10
statute of limitations, inclusive of any tolls and extensions. 1 Jack B. Weinstein, Harold L. Korn, 11
Arthur R. Miller, New York Civil Practice: CPLR ¶ 202.02 (David L. Ferstendig ed., 2022)

. 12

Second , t h ey do the same for New York’s laws. Plaintiffs must bring their claim within the shorter 13

of the resulting two periods

. See, e.g. , Ins. Co. of N. Am. v. ABB Power Generation, Inc. , 690 14
N.E.2d 1249, 1252

– 53 (N.Y. 1997); Stuart , 158 F.3d at 627

– 29; SOCAR (Societe Cameroonaise 15

d’A ssurance et de Reassurance) v. Boeing Co. , 144 F. Supp. 3d 391, 39 5

– 98 (E.D.N.Y. 2015); 16
Vincent v. Money Store , 915 F. Supp. 2d 553, 568

– 72 (S.D.N.Y. 2013). The district court thus 17
properly applied New York tolling periods only to New York law, not to New Jersey law. 18

As t he district court explained, applying the shorter limitations period here is consistent 19

with the goals of C.P.L.R. § 202

. First , it preven t s forum shopping. See In re Coudert Bros. LLP , 20
673 F.3d 180, 190 (2d Cir. 2012) (“New York ’ s borrowing statute, N.Y. C.P.L.R. § 202 , guards 21
against forum shopping by out

- of

- state plaintiffs by mandating use of the shortest statute of 22
limitations available.”)

. Second, C.P.L.R. § 202 provides clarity for litigants. See 2138747 235 Ontario, Inc. v. Samsung C & T Corp. , 103 N.E.3d 774, 780 (N.Y. 2018) (“CPLR 202 is also 1
designed to add clarity to the law and to provide the certainty of uniform application to litigants.” 2
(cleaned up) ). Pla intiffs may not avoid New Jersey’s shorter statute of limitations

— a nd its shorter 3
pandemic tolling period

— by filing in New York

. 4

We have considered the remainder of Plaintiffs’ arguments and find them to be without 5

merit. For the foregoing reasons, we affirm the judgment of the district court

. 6

FOR THE COURT: 7 Catherine O ’ Hagan Wolfe, Cler k of Court 8