Norex Petroleum Limited, Appellant,v.Leonard Blavatnik, et al., Respondents.BriefN.Y.May 6, 2014COURT OF APPEALS STATE OF NEW YORK NOREX PETROLEUM LTD., : Plaintiff-Appellant, : : : : APL-2013-00263 New York County Clerk’s Index No. 650591/11 v. : : LEONARD BLAVATNIK et al., : : Defendants-Respondents. : : AMICUS BRIEF OF DAVID PAUL HOROWITZ David Paul Horowitz, Esq. P.O. Box 463 15 Sellecks Walk Pound Ridge, NY 10576-2112 - i - TABLE OF CONTENTS Page TABLE OF AUTHORITIES.....................................................................................ii STATEMENT OF INTEREST..................................................................................1 PRELIMINARY STATEMENT ...............................................................................2 ARGUMENT.............................................................................................................5 1. The Authority Cited by the First Department in Norex Does Not Support that Court’s Holding and, in Fact, Support’s Plaintiff’s Position..................................................................................................5 2. The Policies Underpinning CPLR §202 Are Not Violated By Permitting Plaintiff to Invoke CPLR §205(a) and Commence a Second Action on the Same Transaction(s) ..........................................7 3. The “Broad and Liberal Purpose” of CPLR §205(a) Cannot Be Reconciled With Dismissal of Plaintiff’s Second Action.....................9 4. Besser Involved a Revival, Not a Saving Statute, and Has No Bearing on CPLR §205(a)...................................................................10 CONCLUSION........................................................................................................12 ii TABLE OF AUTHORITIES Page(s) Cases Besser v. Squibb & Sons, Inc., 146 A.D.2d 107, 539 N.Y.S.2d 734 (1st Dep’t 1989), aff’d without opinion, 75 N.Y.2d 847, 552 N.E.2d 171, 552 N.Y.S.2d 923 (1990)............................................................................................10 Gaines v. New York, 215 N.Y. 533, 109 N.E. 594 (1915) ............................................................4, 9, 10 Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525, 715 N.E.2d 482, 693 N.Y.S.2d 479 (1999) .............................5, 6 Ins. Co. of N. Am. v. ABB Power Generation, 91 N.Y.2d 180, 690 N.E.2d 1249, 668 N.Y.S.2d 143 (1997) ...................3, 4, 7, 8 Norex Petroleum Ltd. v. Blavatnik, 105 A.D.3d 659, 963 N.Y.S.2d 644 (1st Dep’t 2013), leave granted 21 N.Y.3d 865, 996 N.E.2d 918, 974 N.Y.S.2d 37 (2013).........................................................................................3 Statutes Code Civ. Pr. Sec. 405...............................................................................................4 CPLR §202........................................................................................................passim CPLR §205(a) ...................................................................................................passim CPLR §214(c)(2) .....................................................................................................10 STATEMENT OF INTEREST I have taught New York Practice since 2002, first as an Adjunct Professor of Law at New York Law School and currently as a Lecturer in Law at Columbia Law School and as an Adjunct Professor of Law at Brooklyn Law School. New York Practice addresses the application of both CPLR §202 and CPLR §205(a). I have been a member of the Office of Court Administration’s Advisory Committee on Civil Practice since 2001, have served as Associate Reporter for the New York Pattern Jury Instruction Committee (Civil) since 2012, and have written and lectured on New York Practice and related topics to bar association groups and at the New York State Judicial Institute.1 As a result of this experience, I have developed an interest in the interpretation and application of both CPLR §202 and CPLR §205(a) generally, and more specifically, as part of my 2014 Annual CPLR Update for the New York State Bar Association, I have presented and discussed the First Department’s Norex decision with audiences throughout New York State. This interest led me to devote my May 2014 monthly column in the New York State Bar Journal, “Burden 1 Among other things, I am the author of New York Civil Disclosure and Bender’s New York Evidence (both by LexisNexis) and the 2008 and forthcoming 2014 Supplements to Fisch on New York Evidence (Lond Publications). I have also authored a number of revisions to New York Civil Practice: CPLR (Weinstein, Korn & Miller), Second Edition. 2 of Proof,” to a discussion of Norex titled “A Dangerous Intersection.”2 I believe I have a viewpoint on the subject that may be of assistance to the Court. PRELIMINARY STATEMENT The First Department held in Norex that a foreign plaintiff suing in New York on a claim accruing outside New York may only invoke CPLR §205(a) to commence a new action on the same transaction(s) where the applicable foreign jurisdiction(s) has a similar saving statute. As the title of my column suggests, the First Department’s interpretation of the interplay between CPLR §205(a) and CPLR §202 complicates exponentially the jurisdictional analysis required of a foreign plaintiff suing on a transaction(s) accruing outside New York, and places an unwarranted, and potentially unanswerable, burden on that plaintiff. This holding is also contrary to the ameliorative intent of CPLR §205(a) and is not compelled by the plain language of CPLR §202 or decisional law interpreting either statute. If upheld by this Court, this holding would not only undermine the purpose of both statutes, but also endlessly complicate a foreign plaintiff’s jurisdictional calculus when deciding whether to sue in New York on a transaction(s) accruing outside New York. Although the putative action would be timely under both the law of New York and of the foreign jurisdiction(s), the 2 A pre-publication draft of “A Dangerous Intersection” is annexed as Exhibit “1.” 3 foreign plaintiff must now factor into the decision on where to bring the action an analysis of the likelihood of the action being dismissed, and then ascertain the existence of a saving statute comparable to CPLR §205(a) in the foreign jurisdiction(s). In Norex Petroleum Ltd. v. Blavatnik, 105 A.D.3d 659, 963 N.Y.S.2d 644 (1st Dep’t 2013), leave granted 21 N.Y.3d 865, 996 N.E.2d 918, 974 N.Y.S.2d 37 (2013), this Court must, inter alia,3 determine the relationship, if any, between two statutes serving very different purposes, CPLR §202 (the borrowing statute) and CPLR §205(a) (the saving statute). CPLR §202 prevents forum shopping by out-of-state plaintiffs whose claims accrue outside New York State where the statute of limitations governing the claim in the alternative foreign jurisdiction(s) has expired, see Ins. Co. of N. Am. v. ABB Power Generation, 91 N.Y.2d 180, 187 – 188, 690 N.E.2d 1249, 668 N.Y.S.2d 143 (1997). The statute is designed to, and does, restrict access to New York courts by non-resident plaintiffs. However, the prevention of forum shopping by out-of-state plaintiffs is not the sole purpose of the borrowing statute: In addition, although deterrence of forum shopping may be a primary purpose of CPLR 202, it is not the only purpose. As part of this State’s procedural code, CPLR 202 is designed to add clarity to the law and to 3 The proposed amicus does not address any of the other issues before the Court. 4 provide the certainty of uniform application to litigants (citations and parentheticals omitted). Id. at 187. CPLR §205(a) permits a plaintiff whose timely commenced action is dismissed (subject to four exceptions not applicable at bar) to bring a new action on the same transaction(s). Writing for a unanimous Court of Appeals in 1915 in Gaines v. New York, 215 N.Y. 533, 539, 109 N.E. 594 (1915), Judge Cardozo cogently explained the purpose of the predecessor to CPLR §205(a), Code Civ. Pr. sec. 405: The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts. When that has been done, a mistaken belief that the court has jurisdiction, stands on the same plane as any other mistake of law. Judge Cardozo traced the history of the saving statute back to 1623:4 As re-enacted in the present Code (section 405) its scope was broadened. . . . We think that whatever verbal differences exist, the purpose and scope of the present statute are identical in substance with its prototype, the English act of 1623. Id. at 539. 4 “The statute to be construed (Code Civ. Pr. sec. 405) has its roots in the distant past. By the English Limitation Act of 1623 (21 Jac. 1, c. 16, s. 4) . . . . The section was copied into our own laws by a statute enacted in 1788 (L. 1788, ch. 43) and again in 1801 (1 R. L. 186, sec. 5). It then passed into the Revised Statutes (2 R. S. [1st ed.] 298, sec. 33).” Id. at 537. 5 Rather than restricting access to New York courts, the saving statute’s “broad and liberal purpose” expands access to New York courts by permitting a new action to be brought on a transaction(s) already dismissed by a New York court. The issue for the Court is whether CPLR §202 requires a New York court, asked to determine the timeliness of a new action commenced pursuant to CPLR §205(a), to deem the second action timely only where the foreign jurisdiction(s), whose statute of limitations is being compared to New York’s, has a saving provision akin to CPLR §205(a). It is my opinion that CPLR §202 does not contain, and cannot impose, that requirement. ARGUMENT 1. The Authority Cited by the First Department in Norex Does Not Support that Court’s Holding and, in Fact, Support’s Plaintiff’s Position The sole authority cited by the First Department in Norex linking CPLR §202 to a court’s consideration of CPLR §205(a) is Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525, 715 N.E.2d 482, 693 N.Y.S.2d 479 (1999). In Global, the Court of Appeals answered the “long-simmering question: where does a nonresident’s contract claim accrue for purposes of the Statute of Limitations?” Id. at 526. The answer? “[W]e agree that plaintiff’s cause of action 6 accrued where it sustained its alleged injury.” Id. at 527. In Norex, the court held that plaintiff’s claim arose in Alberta, Canada. The Global Court touched briefly on CPLR §205(a) in explaining the procedural history of the action before it: On November 9, 1995, plaintiff commenced an action in the United States District Court for the Southern District of New York to recover its commissions and fees. Because both parties were Delaware corporations, however, on April 10, 1996 the court dismissed the complaint for lack of subject matter jurisdiction. Three months later, plaintiff brought a substantially similar suit across the street, in Supreme Court, New York County. The parties do not dispute that this action is timely if the Federal action was timely when commenced on November 9, 1995 (CPLR 205). Id. In Global, the parties were in agreement that it was the date the underlying action was commenced that controlled whether a second action brought pursuant to the saving statute was timely under CPLR §202, precisely the position advanced by Norex. Notably, the Court expressly cited CPLR §205(a) for this proposition. The Global Court reiterated the restrictive policy goal underlying the borrowing statute: 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 limitation periods of both New York and the jurisdiction where the cause of action accrued. This prevents nonresidents from shopping in New York for a favorable Statute of Limitations (citation omitted). 7 After a discussion of the development of the borrowing statute, the Global Court returned to its analysis of the definition of, and place of, the accrual of plaintiff’s assorted claims. Absent from the discussion and analysis in Global? Any further mention of the saving statute. This is likely because it was a totally uncontroversial proposition that CPLR §205(a) fixed the commencement date for the Court’s analysis under CPLR §202 at the commencement of the prior federal action. If the Global plaintiff’s prior claims were timely filed under both the New York and foreign courts’ statutes of limitations, then claims based on the same transactions in a subsequently filed New York State court action would be timely. Accordingly, Global does not support, let alone compel, the First Department holding in Norex, as Norex’s claims were timely when the first action was commenced in federal court in New York under any applicable statute of limitations. 2. The Policies Underpinning CPLR §202 Are Not Violated By Permitting Plaintiff to Invoke CPLR §205(a) and Commence a Second Action on the Same Transaction(s) There was no “forum shopping” by plaintiff in commencing its second action pursuant to CPLR §205(a) since plaintiff’s first action was timely commenced in New York applying the borrowing statute. Thus, the primary goal of the borrowing statute as explained by the Court of Appeals in Ins. Co. of N. Am. 8 v. ABB Power Generation, 91 N.Y.2d 180, 187 – 188, 690 N.E.2d 1249, 668 N.Y.S.2d 143 (1997), was not implicated. However, the other goal of the borrowing statute articulated by the Court of Appeals in Ins. Co. of N. Am. v. ABB Power Generation, to wit, that “CPLR 202 is designed to add clarity to the law and to provide the certainty of uniform application to litigants,” 91 N.Y.2d 180, 187, 690 N.E.2d 1249, 668 N.Y.S.2d 143 (1997), is not furthered by the holding in Norex. In addition to having to ascertain other jurisdictions’ statutes of limitations and tolls, litigants and courts will now have to determine the existence of, and any limitations on, saving statutes in those other jurisdictions. Every non-resident plaintiff complying with the borrowing statute and commencing a timely action in a New York court on a cause of action accruing outside New York, as the plaintiff in Norex did, will now have to factor into the commencement calculus the following “what if?” “What if my timely commenced action is dismissed for any reason not statutorily excluded from CPLR §205(a)’s saving provision?” The answer to that question will depend upon the answer to yet another question. “Does the foreign jurisdiction have a saving statute and, if so, what is it and what impact will that have on any future dismissal of my action?” The answer to the second part of the last question will depend on when, not if, the initial action 9 is dismissed, since if the initial action is dismissed while the shorter of the statute of limitations of both jurisdictions is open, the existence or non-existence of a borrowing statute in the foreign jurisdiction is of no moment. Only if the statute of limitations has expired will the New York court scrutinize the law of the foreign jurisdiction to determine whether the second action is timely. For the plaintiff in Norex to have engaged in forum shopping, the type of conduct the borrowing statute is designed to frustrate, it would have had to commence the first New York action in federal court with the foreknowledge that the action would be dismissed, and a plan at the time of the initial commencement to invoke CPLR §205(a) based upon the calculation that Alberta law would bar a second action. Such a fanciful scenario should not inform the application of New York’s saving statute. 3. The “Broad and Liberal Purpose” of CPLR §205(a) Cannot Be Reconciled With Dismissal of Plaintiff’s Second Action The resulting inexorable diminution in the clarity of the borrowing statute is overshadowed by the impact of Norex on the “broad and liberal purpose” to be afforded the saving statute. Returning to Judge Cardozo’s decision in Gaines v. New York, 215 N.Y. 533, 109 N.E. 594 (1915): We construe the statute broadly in the light of its history and purpose. If the first action had resulted in a judgment for the plaintiff, and the defendant had prevailed upon appeal, it would be a strained use of language to say that no action had ever been begun (citation omitted). A suitor who invokes in good faith the aid of a court of justice and who 10 initiates a proceeding by the service of process, must be held to have commenced an action within the meaning of this statute, though he has mistaken his forum. The rule of the statute was enacted to meet the exigencies of the ordinary rather than the exceptional case, to save the rights of the honest rather than the fraudulent suitor. There is no suggestion of bad faith in the plaintiff's selection of the City Court. We think his error ought not to bar the prosecution of his action. Id. at 540 – 541. Plaintiff certainly invoked the jurisdiction of a New York court in commencing the first action in good faith, and thus, following Judge Cardozo’s holding, “commenced (the) action within the meaning of [CPLR §205(a)].” To engraft the absence of a foreign court’s borrowing statute in determining the timeliness of the second action is not required by a plain reading of CPLR §202, and is contrary to the goals of CPLR §205(a). 4. Besser Involved a Revival, Not a Saving Statute, and Has No Bearing on CPLR §205(a) Respondents place great importance on Besser v. Squibb & Sons, Inc., 146 A.D.2d 107, 539 N.Y.S.2d 734 (1st Dep’t 1989), aff’d without opinion, 75 N.Y.2d 847, 552 N.E.2d 171, 552 N.Y.S.2d 923 (1990). In Besser, the First Department was tasked with determining the interaction, if any, between CPLR §202 and CPLR §214(c)(2), a toxic tort revival statute enacted in 1986, which provided a one-year “window period” for residents to sue whose claims were time barred under the preexisting “last exposure” rule. The focus of the new statute “was on 11 the elimination of New York’s ‘last exposure’ rule and the adoption of a ‘discovery’ Statute of Limitations. (Citation omitted).” Id. at 111. The critical distinction between the revival statute in Besser and the saving statute in Norex is that CPLR §214(c)(2) only applies to one of two scenarios: first, where an original action was filed and dismissed on statute of limitations grounds; and second, where an otherwise time barred action was brought in the first instance within the one-year revival window afforded by the statute. Thus, when a party invoked the revival benefit of CPLR §214(c)(2), the action had either already been dismissed because the statute of limitations had run, or the statute of limitations in New York was still open for a plaintiff to bring an action for the first time during the revival window. Neither scenario requires an analysis under, or application of, CPLR §205(a), since the former scenario is one expressly proscribed by CPLR §205(a), which requires the original action to have been timely filed, and in the latter scenario no prior action has been filed at all. In Norex, there was not a revival of plaintiff’s claims at the time the second action was commenced in any way remotely similar to Besser. Instead, there was a new action for claims, which was based upon the EXHIBIT 1 DAVID PAUL HOROWITZ (david@newyorkpractice.org) has represented plaintiffs in personal injury cases for more than 25 years and is “of counsel” to Ressler & Ressler in New York City. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the 2008 and forthcoming 2014 Supple- ments to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches inter alia, New York Practice at Columbia Law School and Brooklyn Law School. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee, and is a frequent lecturer and writer on these subjects. BURDEN OF PROOF BY DAVID PAUL HOROWITZ “A Dangerous Intersection” Introduction Statutory provisions and mandates are not always “clear on their face.” Statutes may be poorly drafted, cross-reference other statutes or rules and, of course, rely upon judicial decisions to explain ambiguities and fill in gaps or outright omissions left by the drafters of the statute. A difficult task is often compounded when two statutes, not cross-referenced or otherwise linked to one another, must be considered in tandem. This was the case in Norex Petroleum Ltd. v. Blavatnik.1 Presented with a matter of first impression, a trial court in New York County and, on appeal from that court’s ruling, the First Department, addressed the intersection of CPLR 202 and CPLR 205(a).2 For the plaintiff, it turned out to be a dangerous intersection indeed. The Borrowing Statute CPLR 202, referred to as the “borrowing statute,” provides: § 202. Cause of action accruing without the state. An action based upon a cause of action accruing without the state cannot be commenced after the expira- tion of the time limited by the laws of either the state or the place without the state where the cause of ac- tion accrued, except that where the cause of action accrued in favor of a resident of the state the time lim- ited by the laws of the state shall apply. Hardly a paradigm of clarity in drafting, the statute is designed to prevent forum shopping by out-of- state plaintiffs whose claims accrue outside New York State where the statute of limitations governing the claim in the alternative foreign jurisdiction(s) has expired: In sum, we conclude that CPLR 202 requires that a court, when presented with a cause of action accruing outside New York, should apply the limitation period of the foreign jurisdiction if it bars the claim. Only where the cause of action accrues in favor of a New York resident is this rule rendered inapplicable.3 Accordingly, applying the borrowing statute first requires a determination as to whether a foreign plain- tiff’s cause of action accrued outside New York. If the claim accrued outside New York, then the statute of limitations, including all tolls and extensions, in both the foreign jurisdiction(s) and New York State must be ascertained. If the statutes of limitations are different, the action must be commenced in the New York court within the shorter of the two statutes of limitations, so that if the statute of limitations has expired in either jurisdiction, the claim cannot be brought in New York. Preventing forum shopping by out-of-state plaintiffs is not the only purpose behind the borrowing stat- ute: In addition, although deterrence of forum shopping may be a primary purpose of CPLR 202, it is not the only purpose. As part of this State's procedural code, CPLR 202 is designed to add clarity to the law and to provide the certainty of uniform application to litigants. This equally important purpose of the borrowing statute is frustrated by a rule that would limit its application to cases where a defendant is amenable to suit in another State. Such a rule would lead to results that are anything but uniform or certain.4 Whether the holdings in Norex “add clarity to the law and . . . provide the certainty of uniform applica- tion to litigants” will be discussed below. The Saving Statute CPLR 205(a),5 referred to as the “saving statute,” provides, in pertinent part: § 205. Termination of action (a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month pe- riod. If you feel a slight tension in your temples while reading the statute, you are not alone. Fortunately, in 1915, Judge Cardozo cogently explained the purpose of the saving statute6 in Gaines v. New York.7 Speak- ing for a unanimous Court of Appeals he wrote: The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judg- ment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts. When that has been done, a mistaken belief that the court has jurisdiction, stands on the same plane as any other mistake of law.8 Judge Cardozo traced the history of the saving statute back to 1623: As re-enacted in the present Code (section 405) its scope was broadened. . . . We think that whatever ver- bal differences exist, the purpose and scope of the present statute are identical in substance with its proto- type, the English act of 1623.9 Whether the decisions in Norex acknowledge the statute’s “broad and liberal purpose” will also be dis- cussed below. The Facts and Holding in Norex The trial court in Norex incorporated CPLR 202 in calculating whether plaintiff’s second action was timely commenced under CPLR 205(a): In “embrac[ing] all the laws that serve to limit time within which an action may be brought,” this court must embrace Alberta law, which does not allow for any tolling due to a prior action. Otherwise, the policy “to protect a non-resident defendant against an action in New York, which was timely because of the toll- ing provision of [the New York statute], but had become barred elsewhere” would be defeated. In taking into account all of the Alberta law that would limit Norex’s commencement of an action, as is re- quired under CPLR § 202, it appears that the latest that Norex could have commenced an action against the non-BP defendants would be February 26, 2004, two years after filing its federal action. Unquestionably, by that time, Norex had a cause of action against defendants, and knew it, so the cause of action had ac- crued under Alberta limitations law. With respect to BP, the cause of action accrued no later than Decem- ber 21, 2005, when Norex amended its complaint in the federal action to add BP. Thus, the claim against BP was barred after December 21, 2007. This action was commenced in 2011. Under Alberta law, it was clearly untimely, and therefore must be dismissed.10 Affirming the trial court’s dismissal, the First Department set forth the facts in Norex and its holding on the issue of whether the second action was timely commenced: On February 26, 2002, plaintiff, a resident of Alberta, Canada, commenced an action against all but one of the instant defendants (BP) in the United States District Court for the Southern District of New York, as- serting violations of the Racketeer Influenced and Corrupt Organizations Act. Plaintiff amended the complaint, on December 21, 2005, to add BP as a defendant and to add two claims under Russian law, although not as against BP. The instant action, which plaintiff commenced in 2011, is barred as untimely under Alberta law, which limits the time to bring claims for the torts alleged by plaintiff to within two years from the date on which the claimant first knew or should have known that an injury had occurred, that the injury was attributable to defendants, and that the injury warranted bringing a proceeding, and which, more importantly, does not have a provision that would toll the limitations period in favor of a previously filed action. 28 USC § 1367, which gives the federal courts supplemental jurisdiction over all other claims related to the claims in a federal action and, for any of those claims that are dismissed, tolls the limitations period for 30 days after they are dismissed, “unless State law provides for a longer tolling period,” is not applicable to this action, because New York law provides for a tolling period of six months. CPLR 205(a) could not save plaintiff's claims in any event, because New York's borrowing statute requires the courts to apply Al- berta's limitations period. Alberta's limitations periods for plaintiff's state law and Russian-law claims ex- pired, at the latest, in 2004 and 2007, respectively.11 Norex also involved determinations on several other points of law not pertinent to the discussion here- in.12 The sole authority cited in Norex by the First Department for considering CPLR 202 when applying CPLR 205(a) was Global Financial Corp. v. Triarc Corp.,13 where the Court of Appeals answered the “long-simmering question: where does a nonresident's contract claim accrue for purposes of the Statute of Limitations?”14 The answer? “[W]e agree that plaintiff's cause of action accrued where it sustained its al- leged injury.”15 The Court touched briefly on CPLR 205(a) in explaining the procedural history of the action before it: On November 9, 1995, plaintiff commenced an action in the United States District Court for the Southern District of New York to recover its commissions and fees. Because both parties were Delaware corpora- tions, however, on April 10, 1996 the court dismissed the complaint for lack of subject matter jurisdiction. Three months later, plaintiff brought a substantially similar suit across the street, in Supreme Court, New York County. The parties do not dispute that this action is timely if the Federal action was timely when commenced on November 9, 1995.16 Thus, in Global, the parties were in agreement that it was the date the underlying action was commenced that controlled whether a second action brought pursuant to the saving statute was timely. In explaining the effect of the borrowing statute, the Court of Appeals in Global broke no new ground: 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 limitation periods of both New York and the jurisdiction where the cause of action accrued. This prevents nonresidents from shopping in New York for a favorable Statute of Limita- tions.17 After a discussion of the development of the borrowing statue, the Court returned to its analysis of the definition of, and place of accrual of, various claims. Absent from the discussion and analysis in Global? Any further mention of the saving statute. Norex Eschews Both “Clarity” and a “Broad and Liberal Purpose” There was no “forum shopping” by Norex in commencing its second action pursuant to CPLR 205(a) since the plaintiff had already timely commenced its first action in New York; thus, the first, and primary, goal of the borrowing statute was not implicated. However, the other goal of the borrowing statute articulated by the Court of Appeals in Insurance Co. of North America v. ABB Power Generation, to wit, that “CPLR 202 is designed to add clarity to the law and to provide the certainty of uniform application to litigants,”18 is not furthered by the holding in Norex. In addition to having to ascertain other jurisdictions’ statutes of limitations and tolls, litigants and courts will now have to determine the existence of, and any limitations on, saving statutes in those other jurisdictions. Every non-resident plaintiff complying with the borrowing statute and commencing a timely action in a New York court on a cause of action accruing outside New York will now have to factor into the com- mencement calculus the following: “What if my timely commenced action is dismissed for any reason not statutorily excluded from CPLR 205(a)’s saving provision?” The answer to that question will depend upon the answer to yet another question. “Does the foreign ju- risdiction have a saving statute and, if so, what is it and what impact will that have on any future dismissal of my action?” The answer to the second part of the last question will depend on when, not if, the initial action is dismissed, since if the initial action is dismissed while the shorter of the statute of limitations of both jurisdictions is open, the existence or non-existence of a borrowing statute in the foreign jurisdiction is of no moment. Only if the statute of limitations has expired will the New York court scrutinize the law of the foreign jurisdiction to determine whether the second action is timely. The resulting inexorable diminution in the clarity of the borrowing statute is overshadowed by the im- pact of Norex on the “broad and liberal purpose” to be afforded the saving statute. Returning to Judge Car- dozo’s decision in Gaines v. New York:19 We construe the statute broadly in the light of its history and purpose. If the first action had resulted in a judgment for the plaintiff, and the defendant had prevailed upon appeal, it would be a strained use of lan- guage to say that no action had ever been begun. A suitor who invokes in good faith the aid of a court of justice and who initiates a proceeding by the service of process, must be held to have commenced an ac- tion within the meaning of this statute, though he has mistaken his forum. . . . The rule of the statute was enacted to meet the exigencies of the ordinary rather than the exceptional case, to save the rights of the honest rather than the fraudulent suitor. There is no suggestion of bad faith in the plaintiff's selection of the City Court. We think his error ought not to bar the prosecution of his action.20 Norex certainly invoked the jurisdiction of a New York court in commencing the first action in good faith, and therefore, following Judge Cardozo’s holding, “commenced (the) action within the meaning of [CPLR 205(a)].” To engraft the absence of a foreign court’s saving statute in determining the timeliness of the second action is not required by a plain reading of CPLR 202, and is contrary to the goals of CPLR 205(a). Conclusion Once an action is timely commenced in a New York court, the borrowing statute’s role, by its express terms limited to determining the applicable limitations period, is over. Following that initial timely com- mencement, if the action is dismissed, the saving statute permits the plaintiff to commence a second action, except where the basis for dismissal is specifically proscribed by the statute. Because the saving statute is only invoked where the statute of limitations has expired, there is no need to consider the borrowing statute because the saving statute trumps the statute of limitations. Rest assured, if the Court of Appeals decides Norex, a future column will tell the tale. Until that time, as you peruse this column with Memorial Day fast approaching, and memories of a long winter a distant memory, a long, languorous, and restorative summer to all. Just be wary of dangerous in- tersections. 1 105 A.D.3d 659 (1st Dep’t), lv. granted, 21 N.Y.3d 865 (2013). 2 Norex is scheduled to be argued in the Court of Appeals in early summer and, barring a last-minute reso- lution of the case or withdrawal of the appeal, a final determination by that Court will conclusively settle the matter. 3 Ins. Co. of N. Am. v. ABB Power Generation, 91 N.Y.2d 180, 187–88 (1997). 4 Id. at 187 (citations and parentheticals omitted). 5 The remainder of CPLR 205(a) addresses dismissals for neglect to prosecute, and the statute contains two additional subsections: (b) Defense or counterclaim. Where the defendant has served an answer and the action is terminated in any manner, and a new action upon the same transaction or occurrence or series of transactions or occurrences is commenced by the plaintiff or his successor in interest, the assertion of any cause of action or defense by the defendant in the new action shall be timely if it was timely asserted in the prior action. (c) Application. This section also applies to a proceeding brought under the workers’ compensation law. 6 Addressing a predecessor to CPLR 205(a), Code Civ. Pr. § 405. 7 215 N.Y. 533 (1915). 8 Id. at 539. 9 Id. The statute to be construed (Code Civ. Pr. § 405) has its roots in the distant past. By the English Limi- tation Act of 1623 (21 Jac. 1, c. 16, s. 4). . . . The section was copied into our own laws by a statute enacted in 1788 (L. 1788, ch. 43) and again in 1801 (1 R. L. 186, sec. 5). It then passed into the Revised Statutes (2 R. S. [1st ed.] 298, § 33). 10 Norex Petroleum Ltd. v. Blavatnik, 2012 N.Y. Slip Op. 33181(U), 10–11 (Sup. Ct., N.Y. Co. June 13, 2012) (citation omitted). 11 Norex Petroleum Ltd., 105 A.D.3d 659–60 (citations omitted). 12 They included, inter alia, the application of a federal analog to CPLR 205(a), 28 U.S.C. § 1367(d), whether the dismissal of the federal action was on the merits, and whether certain claims in the second ac- tion related back to the original filing. 13 93 N.Y.2d 525 (1999). 14 Id. at 526. 15 Id. at 527. 16 Id. (citation omitted). 17 Id. at 529 (citation omitted) 18 91 N.Y.2d 180 (1997). 19 215 N.Y. 533 (1915). 20 Id. at 540–41 (citation omitted). Service List for Counsel of Record SIMPSON THACHER & BARTLETT LLP Barry R. Ostrager Mary Kay Vyskocil Jonathan M. Weiss Hiral D. Mehta 425 Lexington Avenue New York, New York 10017 Telephone: (212) 455-2000 bostrager@stblaw.corn mvyskocil@stblaw.com hmehta@stblaw.com Attorneys for Plaintiff-Appellant Norex Petroleum Limited WHITE & CASE LLP Owen C. Pell Scott E. Hershman Brian E. Fritz Max Shterngel 1155 Avenue of the Americas New York, New York 10036 (212) 819-8200 opell@whitecase.com shershman@whitecase.com bfritz@whitecase.com mshterngel@whitecase.com Attorneys for Defendants-Respondents OAO Tyumen Oil Company and TNK-BP Limited QUINN EMANUEL URQUHART & SULLIVAN, LLP Faith E. Gay Robert Juman Corey Worcester 51 Madison Avenue, 22nd Floor New York, NY 10010 (212) 849-7000 faithgay@quinnemanuel.com robertjuman@quinnemanuel.com coreyworcester@quinnemanuel.com Attorneys for Defendant-Respondent Access Industries, Inc. SULLIVAN & CROMWELL LLP Daryl A. Libow Christopher M. Viapiano 1701 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 956-7500 libowd@sullcrom.com viapianoc@sullcrom.com Attorneys for Defendant-Respondent BP p.l.c. CURTIS, MALLET-PREVOST, COLT & MOLSE LLP Turner P. Smith Myles K. Bartley 101 Park Avenue New York, New York 10178 (212) 696-6000 tsmith@curtis.com mbartley@curtis.com Attorneys for Defendant-Respondent Leonard Blavatnik REED SMITH LLP Herbert F. Kozlov Lawrence J. Reina 599 Lexington Avenue, 22nd Floor New York, New York 10022 (212) 521-5400 hkozlov@reedsmith.com lreina@reedsmith.com Attorneys for Defendant-Respondent Victor Vekselberg HOGUET NEWMAN REGAL & KENNEY LLP Fredric S. Newman Sheryl B. Galler 10 East 40th Street New York, New York 10016 (212) 689-8808 fnewman@hnrklaw.com sgaller@hnrklaw.com Attorneys for Defendant-Respondent Simon Kukes AKIN GUMP STRAUSS HAUER & FELD LLP Kim Koopersmith W. Randolph Teslik Ashley F. Waters One Bryant Park New York, New York 10036 (212) 872-1000 kkoopersmith@akingump.com rteslik@akingump.com awaters@akingump.com Attorneys for Defendant-Respondent Alfa Group Consortium PATTERSON BELKNAP WEBB & TYLER LLP Henry J. Ricardo 1133 Avenue of the Americas New York, New York 10036 (212) 336-20000 hjricardo@pbwt.com Attorneys for Defendant-Respondent Renova, Inc.