Pursuant to CPLR 202, the "borrowing statute," a cause of action accruing in a jurisdiction outside New York must be timely in both New York and that other jurisdiction (Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]; Kat House Prods. LLC v Paul, Hastings, Janofsky & Walker, LLP, 71 AD3d 580 [1st Dept 2010]; Proforma Partners v Skadden Arps Meagher & Flom, 280 AD2d 303, 303 [1st Dept 2001]). For borrowing statute purposes, a Claim accrues at the sits of loss (Proforma; 280 AD2d at 304). In a case for legal malpractice, Where the demanded relief is monetary damages, the site of loss is plaintiff's residence (Kat House, 71 AD3d at 580-81).
Pursuant to CPLR 202, the "borrowing statute," a cause of action accruing in a jurisdiction outside New York must be timely in both; New York and that other jurisdiction ( Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528; Kat House Prods. LLC v Paul, Hastings, Janofsky Walker, LLP, 71 AD3d 580 [1st Dept 2010]; Proforma Partners v Skadden Arps Meagher Flom, 280 AD2d 303, 303 [1st Dept 2001]). For borrowing statute purposes, a claim accrues at the site of loss ( Proforma; 280 AD2d at 304).
( citing National Union Fire Ins. Co. of Pittsburgh, PA v. Forman 635 Joint Venture, No. 94 Civ. 1312, 1996 WL 507317, at *4 (S.D.N.Y. Sept. 6, 1996); McMahan & Co. v. Donaldson, Lufkin & Jenrette Sec. Corp., 727 F.Supp. 833, 834 (S.D.N.Y.1989) ( “[A] partnership's sole legal residence under [the New York borrowing statute] is where it maintains its principal place of business.”) (internal quotation marks omitted); see also Proforma Partners, LP v. Skadden Arps Slate Meagher & Flom, LLP, 280 A.D.2d 303, 720 N.Y.S.2d 139 (1st Dep't 2001).
New York’s borrowing statute (CPLR 202) is implicated here where the plaintiff is a nonresident. Under the borrowing statute, plaintiff’s claim must be timely under both the statute of limitations of the jurisdiction where plaintiff is a "resident," i.e., Missouri’s five-year limitations period for breach of contract claims, and New York’s six-year statute of limitations for such claims (see CPLR 213; see also Global Fin. Corp. v. Triare Corp., 93 N.Y.2d 525, 528, 693 N.Y.S.2d 479, 715 N.E.2d 482 [1999]; Proforma Partners v. Skadden Arps Slate Meagher & Flom, 280 A.D.2d 303, 720 N.Y.S.2d 139 [1st Dept. 2001], lv denied 96 N.Y.2d 722, 733 N.Y.S.2d 374, 759 N.E.2d 373 [2001]). While plaintiff first gave defendant written notice of the Sprint litigation in January 2012, such that defendant was then on notice it was obligated under the MPA to "assume" the defense of plaintiff at "its sole cost," the duty to defend remained a continuing obligation until the conclusion of the action, when the promisor of the duty to defend (here, defendant) could no longer provide a defense (see e.g. Ghaly v. First Am. Tit. Ins. Co. of N.Y., 228 A.D.2d 551, 552, 644 N.Y.S.2d 770 [2d Dept. 1996]; Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 544 N.Y.S.2d 359 [2d Dept. 1989]).
New York's borrowing statute (CPLR 202) is implicated here where the plaintiff is a nonresident. Under the borrowing statute, plaintiff's claim must be timely under both the statute of limitations of the jurisdiction where plaintiff is a "resident," i.e., Missouri's five-year limitations period for breach of contract claims, and New York's six-year statute of limitations for such claims (see CPLR 213; see also Global Fin. Corp. v Triarc Corp., 93 N.Y.2d 525, 528 [1998]; Proforma Partners v Skadden Arps Slate Meagher & Flom, 280 A.D.2d 303 [1st Dept 2001], lv denied 96 N.Y.2d 722 [2001]). While plaintiff first gave defendant written notice of the Sprint litigation in January 2012, such that defendant was then on notice it was obligated under the MPA to "assume" the defense of plaintiff at "its sole cost," the duty to defend remained a continuing obligation until the conclusion of the action, when the promisor of the duty to defend (here, defendant)
Thus, under New York choice-of-law rules, the Ohio statute is therefore inapplicable to this action which is governed by the six-year statute of limitations set forth in CPLR 213 ( see Tanges, supra; cf. Blatz v. Westinghouse Elec. Corp., 274 AD2d 491). In addition, the plaintiff does not receive any benefit from CPLR 202, the "borrowing statute," since "[w]hen a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued" ( Global Fin. Corp. v. Triarc Corp., 93 NY2d 525, 528; see Proforma Partners v. Skadden Arps Slate Meagher Flom, 280 AD2d 303). "In order that a part payment shall have the effect of tolling a time-limitation period, under the statute or pursuant to contract, it must be shown that there was a payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder" ( Lew Morris Demolition Co. v. Board of Educ. of City of N.Y., 40 NY2d 516, 521).
When an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss and a partnership's legal residence is where it maintains its principal place of business. (See Proforma Partners, LP v. Skadden Arps Slate Meagher &Flom, LLP, 280 A.D.2d 303, 720 N.Y.S.2d 139 [1st Dept 2001]). Thus, whether the Court will apply the applicable Delaware or New York statute of limitations, hinges on whether as a matter of law, Plaintiff is deemed a resident of New York.
Plaintiff asserts, and defendant does not dispute, that the original debtholder's principal place of business was located, at the relevant time, in California. On that basis, the debt at issue appears to have accrued in California, subject to Cal. Code. Civ. P. § 337 rather than Delaware law. Sands Bros. Venture Capital II, LLC v. Metropolitan Paper Recycling, Inc., 67 Misc.3d 1216 (A), *8 (Sup. Ct., New York Co. 2020), citing Proforma Partners v. Skadden Arps Slate Meagher & Flom, 280 A.D.2d 303, 303 (1st Dept. 2001). The parties do not dispute that an earlier statute of limitations than New York's then-standard six-year period controls pursuant to CPLR 202, but the parties do dispute which earlier period controls.
" ‘When a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued ( Global Fin. Corp. v Triarc Corp. , 93 NY2d 525, 528, 715 NE2d 482, 693 NYS2d 479 [1999] ; seeProforma Partners v Skadden Arps Slate Meagher & Flom , 280 AD2d 303, 720 NYS2d 139 [2001] ’ " (seeEduc. Resources Inst., Inc. v Piazza , 17 AD3d 513, 514 [2d Dept 2005] ).
There is absolutely no dispute that Mr. Frey is a Texas resident, and not a New York resident, as acknowledged in the complaint in this action (NYSCEF Doc. No. 1 ¶ 11). Moreover, it cannot be reasonably gainsaid that Mr. Frey's claims in this action accrued in Texas, where his termination from HMS occurred (see, Global Fin. Corp. v Triarc Corp., 93 NY2d 525 [1999]; Proforma Partners, L.P. v Skadden Arps Slate Meagher & Flom, LLP, 280 AD2d 303 [1st Dept], lv denied 96 NY2d 722 [2001]). Indeed, the United States Court of Appeals for the Fifth Circuit has already determined that its own subject matter jurisdiction over Mr. Frey's (unsuccessful) appeal of the HHS determination was predicated on the undeniable fact that it was the "circuit in which the alleged reprisal occurred" (NYSCEF Doc. No. 41 at 5).