| Windsearch, Inc. v Delafrange |
| 2011 NY Slip Op 08883 [90 AD3d 1223] |
| December 8, 2011 |
| Appellate Division, Third Department |
| Windsearch, Inc., Respondent, v Kenneth P. Delafrange,Appellant. |
—[*1] O'Brien & Manister, Hicksville (Todd J. Manister of counsel), for respondent.
Kavanagh, J. Appeals (1) from an order of the Supreme Court (Ryan, J.), entered August 19,2010 in Clinton County, which, among other things, granted plaintiff's motion for summaryjudgment, and (2) from the judgment entered thereon.
Plaintiff alleges that defendant, in 1997, opened a credit card account with the MarylandNational Bank. In 2002, when payments due and owing on that account were not paid, it wasclosed and the debt represented by the balance owed on the account was later assigned toplaintiff. In October 2007, plaintiff commenced this action against defendant seeking to recoverwhat was owed on the account. In response, defendant moved for summary judgment dismissingthe complaint on the ground that he was the victim of identity theft and therefore not responsiblefor what was owed on the account. He also sought dismissal of the complaint based on hiscontention that insufficient evidence existed establishing that plaintiff had been legally assignedthe debt, and the claim was barred by the applicable statute of limitations. Supreme Court denieddefendant's motion. In March 2010, plaintiff moved for summary judgment and defendant again,in a cross motion, sought summary judgment dismissing the complaint. The court denieddefendant's cross motion, granted plaintiff's motion, and entered judgment on plaintiff's behalf.Defendant now appeals.[FN1][*2]
We reverse and conclude that plaintiff's claim must bedismissed because it is barred by the statute of limitations. When a nonresident sues on a claimthat accrued outside of New York, the cause of action must be commenced within the timeperiod provided by New York's statute of limitations, as well as the statute of limitations in effectin the jurisdiction where the cause of action in fact accrued (see CPLR 202; GlobalFin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]). Here, plaintiff's claim actually accruedin Delaware, because that is where the creditor on the account resided when it "sustain[ed] theeconomic impact of the loss" represented by what was owed on the account (Portfolio Recovery Assoc., LLC vKing, 14 NY3d 410, 416 [2010] [internal quotation marks and citation omitted]). Whileplaintiff—a New York corporation—claims to be an assignee of that legalobligation, the account was owned by a Delaware corporation when it was closed in November2002—and the debt owed on it legally accrued.[FN2]Since the assignee of such a debt "is not entitled to stand in a better position than that of itsassignor" (Portfolio Recovery Assoc., LLC v King, 14 NY3d at 416), Delaware'sthree-year statute of limitations governs this action (see Del Code Ann, tit 10, §8106). This action was commenced in 2007, or five years after the claim accrued, and, therefore,it is barred by the Delaware statute of limitations and must be dismissed.
We do not agree with plaintiff that the holding in Portfolio represents a new rule oflaw that must be applied prospectively and, in that regard, note the Court of Appeals' admonitionthat "care must be taken to assure that [the concept of a 'new rule'] remains a relatively narrowone, lest the exception swallow up what has always been considered the normal rule in legalmethodology—i.e., that cases should be decided on the basis of the law as it exists at thetime of decision" (People v Favor, 82 NY2d 254, 263 [1993]; see Geloso vMonster, 289 AD2d 746, 749 [2001], lv denied 98 NY2d 601 [2002]).
Spain, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the order and judgment arereversed, on the law, with costs, plaintiff's motion denied, defendant's cross motion granted,summary judgment awarded to defendant and complaint dismissed.
Footnote 1: To the extent that plaintiffcontends that defendant cannot now raise the statute of limitations because that issue was decidedin the prior order from which defendant did not appeal, an appeal from the final judgment bringsup for appellate review "any non-final judgment or order which necessarily affects the finaljudgment" (CPLR 5501 [a] [1]; seeMadden v Dake, 30 AD3d 932, 935 n 2 [2006]).
Footnote 2: The statements on the creditcard accounts listed PNC—MBNA America as the creditor and its address as Wilmington,Delaware.