Opinion
November 30, 1989
Appeal from the Supreme Court, New York County (Ethel Danzig, J.).
The IAS court erred in ruling, as a matter of law, that the defendants were amenable to suit in Connecticut during the Statute of Limitations period. The record reveals that the defendants' evidence in this regard was woefully inadequate. For example, defendant R.H. Macy's claimed to operate a store in Connecticut, but substantiated this solely with copies of police incident reports which did not even cover the relevant period. For its part, defendant Fabil Manufacturing, Inc. claimed to have transacted business in Connecticut for 50 years, but submitted no documentary proof, such as sales receipts or invoices to support its contention. Similarly, defendant Sure Snap, Inc. produced no business records indicating that it had ever shipped goods into Connecticut.
Thus, the issue of the amenability of these defendants to suit pursuant to Connecticut's long-arm statute (Conn Gen Stat Annot § 33-411) and attendant due process concerns (see, World-Wide Volkswagen Corp. v Woodson, 444 U.S. 286; Asahi Metal Indus. Co. v Superior Ct., 480 U.S. 102) was not conclusively established. Also critical in this case, and to be determined in accordance with the jurisdictional matter, is the related issue of whether Connecticut's toll for absence from the State (Conn Gen Stat Annot § 52-590) applies to the defendants.
These are threshold matters that must be resolved before defendants may invoke the Connecticut time bar pursuant to New York's borrowing statute (CPLR 202; see, Childs v Brandon, 60 N.Y.2d 927, 929; Katz v Goodyear Tire Rubber Co., 737 F.2d 238, 243).
Accordingly, the matter is remanded for a trial pursuant to CPLR 3212 (c). Inasmuch as the remaining points on appeal assume the applicability of CPLR 202, we decline to address them at this time.
Concur — Murphy, P.J., Kupferman, Carro, Kassal and Wallach, JJ.