On February 2, 2023, the First Department issued a decision in Andes Petroleum Ecuador Ltd. v. Occidental Petroleum Co., 2023 NY Slip Op. 00481, holding that under New York’s borrowing statute, if the foreign jurisdiction does not have the same claim as New York, the court must use the foreign cause of action most closely analogous to the New York cause of action, explaining:
The motion court incorrectly determined that plaintiff’s causes of action for fraudulent conveyance were timely. Under CPLR 202, New York’s borrowing statute, where a nonresident plaintiff sues on causes of action that accrued outside of New York, the claims must be timely under the limitations period of both New York and the jurisdiction where the action accrued. In effect, the shorter of the two states’ statutes of limitations controls the timeliness of the action.
Thus, where, as here, the claims are timely under New York law, the issue turns on whether the claims would have been timely filed if they could have been brought under the laws of the foreign state, in this case, Ecuador. This requires a determination as to which foreign causes of action and related limitations period would apply had the claims been brought in the foreign jurisdiction. If the foreign state does not have causes of action directly analogous to the New York causes of action, the limitations period of the foreign causes of action that are most closely analogous to the New York claims are to be applied.
In performing the foregoing analysis, the motion court found applicable Ecuador’s default statute, which has a 10-year statute of limitations, and thereby found plaintiff’s claims timely filed, despite the expert testimony establishing that Ecuador’s default statute is not directly applicable to plaintiff’s fraudulent conveyance claims and not the Ecuadorian cause of action most closely analogous to the New York causes of action. We vacate the denial of the motion to dismiss and remand the matter to the motion court for consideration of the expert evidence provided by each side concerning what Ecuadorian causes of action are most closely analogous to the New York causes of action.
(Internal quotations and citations omitted).