Discovery in legal malpractice litigation often turn around the "but for" portion of the case.  The question of why was the underlying case ultimately lost, why didn’t plaintiff succeed with successor counsel and why are we responsible for this bad outcome, are often heard, and usually must be dealt with.  Here in Leviton Mfg. Co., Inc.,  v. Greenberg Traurig LLP, et al., , 09 Civ. 8083 (GBD) (THK); U.S. District Court, Southern District illustrates  theprincipals of "at issue" attorney-client privilege and " work-product" discovery.

"Plaintiff Leviton Mfg. Co. ("Leviton") alleges in its Complaint that Defendant Greenberg Traurig LLP and certain individual attorneys at Greenberg Traurig were professionally negligent in prosecuting a number of patent applications before the United States patent and Trademark Office ("USPTO" or "Patent Office"). As a consequence, the "on-sale bar" foreclosed the patentability of Leviton’s inventions, because the inventions, were on sale in the United States for more than one year prior to the date of the patent applications.

The attorney-client privilege may be waived. Although Defendants’ rely primarily upon federal law in arguing the issue of waiver, Leviton correctly argues that it is New York law that provides the law of decision for Leviton’s claim of legal malpractice. See Chin v. Rogoff & Co., P.C., No. 05 Civ. 8360 (NRB), 2008 WL 2073934, at *4 (S.D.N.Y. May 8, 2008) ("when a discovery dispute involves an attorney-client relationship with a New York attorney, New York privilege law applies"). Nevertheless, the parties cite both New York and federal law in support of their positions, and appear to hold the view that there is no material difference in New York and federal law on this issue. (See Pl.’s Br. at 2.)

Under Second Circuit law, waiver of attorney-client privilege may occur,

when a client testifies concerning portions of the attorney-client communication,…when a client places the attorney-client relationship directly at issue,…and when a client asserts reliance on an attorney’s advice as an element of a claim or defense.

In re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (quoting Sedco Int’l S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982)). Courts have recognized that a party need not explicitly rely upon advice of counsel to implicate privileged communications. Instead, advice of counsel may be placed in issue where, for example, a party’s state of mind, such as his good faith beliefin the lawfulness of his conduct, is relied upon in support of a claim of defense. Because legal advice that a party received may well demonstrate the falsity of its claim of good faith belief, waiver in these instances arises as a matter of fairness, that is, it would be unfair to allow a party to "use[] an assertion of fact to influence the decisionmaker while denying its adversary access to privileged material potentially capable of rebutting the assertion." John Doe Co. v. United States, 350 F.3d 299, 306 (2d Cir. 2003); accord County of Erie, 546 F.3d at 229; see also Bilzerian, 926 F.2d at 1292; von Bulow, 828 F.2d at 103; Am. S.S. Owners Mut. Prot. and Indem. Ass’n v. Alcoa S.S. Co., 232 F.R.D. 191, 199 (S.D.N.Y. 2005).

Like the Second Circuit, New York courts will not find an at issue waiver merely because privileged information is relevant to the issues being litigated; "(r]ather, at issue waiver occurs when the party has asserted a claim or defense that he intends to prove by use of the privileged materials," Deutsche Bank, 43 A.D.3d at 23, 837 N.Y.S.2d at 64 (internal quotation marks omitted; accord Veras Inv. Partners, LLC v. Akin Gump Strauss Hauer & Feld LLP, 52 A.D.3d 370, 374, 860 N.Y.S.2d 78, 82 (1st Dep’t 2008), or, where rather than being merely relevant, "the privileged documents are indispensable to a party’s claims or defenses." Chin, 2008 WL 2073934, at *5; Carl v. Cohen, 23 Misc. 3d 1110 (A), 886 N.Y.S.2d 66 (Table), 2009 WL 997517, at *3 (S. Ct. N.Y. Cty. 2009). For example, where a claim of malpractice is premised upon reliance on the erroneous advice of predecessor counsel, under both New York and federal law, the legal advice received from any other counsel on the same issue is placed at issue. See, e.g., Goldberg v. Hirschberg, 10 Misc. 3d 292, 297-98, 806 N.Y.S.2d 333, 337 (S. Ct. N.Y. Cty. 2005) (citing to the "remarkable similarity" to Bank Brussels Lambert v. Fiddler, Gonzalez & Rodriquez, No. 96 Civ. 7233 (LMM) (RLE), 2003 WL 21277139 (S.D.N.Y. June 2, 2003), aff’d 2005 WL 756859 (S.D.N.Y. April 1, 2005), for the proposition that "because plaintiff was claiming that it relied on defendant’s advice on a certain issue to its detriment, the legal advice it received from any other lawyers on that issue related to the reasonableness of plaintiff’s reliance and was not subject to the attorney-client privilege")."
 

Legal malpractice proofs have 4 elements.  They are Departure, Proximity, "But for" and Ascertainable damages.  The sad truth is that in almost every human endeavor, one may find departures.  In a case that goes to trial, there are arguably many departures.  A simple question must be asked:  "Did this departure proximately cause permanent damage, and would there have been a different outcome "but for" this departure?  Often the answer is no.

 

In Pozefsky v Aulisi ;  2010 NY Slip Op 08999 ;  Decided on December 7, 2010 ;  Appellate Division, First Department we see one such example. This was a medical malpractice case in which the claim was that plaintiff "sought damages resulting from a breast implant rupture allegedly causing her to suffer systemic tissue disease and/or other autoimmune/rheumatic conditions" by virtue of silicone breast implants.
 

Her expert at trial was not permitted to testify because defendants failed to produce the proposed expert for depositions.  Does this make a difference, and can she win a legal malpractice case?

No, says the Court.  The expert would not have been permitted to testify in any event, because there was no scientific validity to his proposed testimony.

"The record demonstrates that plaintiff’s proposed expert would not have been allowed to testify at the federal court trial in which plaintiff sought damages resulting from a breast implant rupture allegedly causing her to suffer systemic tissue disease and/or other autoimmune/rheumatic conditions, regardless of any negligence on the part of defendants in failing to produce the proposed expert for depositions, since his testimony on the issue of causation would not have survived a hearing pursuant to Daubert v Merrell Dow Pharms., Inc. (509 US 579 [1993]).

In granting a motion to preclude the testimony of two of plaintiff’s designated experts, the federal court conducted a thorough Daubert analysis with respect to the issue of causation in the context of injuries purportedly caused by or associated with silicone breast implants. The court reviewed the reports of three groups of independent experts, as well as studies published by many well known national and international, medical and scientific organizations, which all concluded that there was insufficient evidence to support the allegation that silicone breast implants are associated with defined or atypical connective tissue diseases, or other autoimmune-rheumatic diseases or conditions in women with such implants (see Pozefsky v Baxter Healthcare Corp., 2001 WL 967608, 2001 US Dist LEXIS 11813 [ND NY 2001]). The federal court also cited to [*2]cases where the proposed expert was precluded from testifying on the causation issue since his theory that silicone implants could cause undifferentiated connective tissue diseases was not based on scientifically valid methodologies and has not been accepted in the scientific community (see Havard v Baxter Intl. Inc., 2000 US Dist LEXIS 21316, *12-13 [2000]; Grant v Bristol-Myers Squibb, 97 F Supp 2d 986, 992 [2000]). "

 

 

Yesterday, we looked at  Escape Airports (USA), Inc. v Kent, Beatty & Gordon, LLP
2010 NY Slip Op 08981 ;  Decided on December 7, 2010 ;  Appellate Division, First Department in which Justice Kornreich was affirmed across the board. 
 

One defense in legal malpractice cases is that damages are speculative, conclusory, or cannot be stated in an ascertainable fashion.  This case revolved around an airport vendor’s claim that the attorneys failed to advise them to insert two clauses into the contracts.  Defendants said that there could be no proof that the airlines would accept the clauses. The Court wrote:

"We also decline to upset the court’s refusal to dismiss the claim to the extent it is predicated on defendant’s alleged failure to include upper-limit-of-passengers and exclusivity provisions. Plaintiff has offered evidence that it suffered damages due to one airline vacating the premises during the lease period, and using the services of another lounge. Whether restrictive lease provisions would have been acceptable to the vacating airline is an issue we need not determine.

That portion of the motion addressing plaintiff’s claim predicated on the occupancy agreement entered into with JFK International Air Terminal LLC was also correctly denied. The fact that plaintiff signed, and is thus bound by, the terms of this agreement does not preclude an action for malpractice against the attorney who assisted in drafting it. Plaintiff alleges that it retained defendant for the express purpose of providing advice with respect to standard terms and conditions to be incorporated in the occupancy agreement. It further alleges that defendant agreed to undertake this task, and did provide plaintiff with very specific comments regarding the standard terms and conditions, but failed to highlight or comment on the termination provision. It is axiomatic that counsel "may not shift to the client the legal responsibility it was specifically hired to undertake because of its superior knowledge" (Hart v Carro, Spanbock, Kaster & Cuiffo, 211 AD2d 617, 619 [1995]). Thus, a fact issue is presented as to whether defendant was negligent in the performance of duties within its area of expertise, and for which expertise it was retained. "

 

A unique principal in malpractice cases, both medical and legal is the question of professional judgment.  In medicine, it is said that "medicine is an art and not a science" and in law, it is said that a legal malpractice action may not be based solely upon a failed strategy or question of professional judgment, upon which opinions may vary.

Many legal malpractice cases have been dismissed on the principal that the complained of acts were questions of judgment, failed or not, and not a departure from good and accepted standards.  Here in this very interesting case, the First Department affirms the decision of Justice Kornreich, in Supreme Court, New York County.  In Escape Airports (USA), Inc. v Kent, Beatty & Gordon, LLP
2010 NY Slip Op 08981;;  Decided on December 7, 2010, the Court writes:
 

"The essence of plaintiff’s claim is that it consulted defendant for advice concerning the individual contracts with airlines that were based on the template agreement defendant had drafted; defendant gave it bad advice in failing to recommend that a termination provision be added or otherwise advise plaintiff that such protection was lacking; plaintiff had no way of knowing that it had been given bad advice until after it signed the individual agreements; the airlines had an incentive to agree to a termination provision because plaintiff would not otherwise have been able to provide the contracted for lounge services; and but for this omission, plaintiff would not have incurred damages.

At this juncture, i.e., the motion to dismiss, the professional judgment rule cannot be invoked to determine whether defendant was negligent in failing to include a termination provision, because the state of the record does not allow a determination as a matter of law that [*2]defendant deliberately excluded that provision in favor of an equally protective alternative provision (see e.g. Rosner v Paley, 65 NY2d 736, 738 [1985]; Zarin v Reid & Priest, 184 AD2d 385, 386-387 [1992]). Nor can we conclude that it is or is not overly speculative to surmise that a carrier would have agreed to a termination clause in its lease equivalent to that found in plaintiff’s agreement with the airport. "

 

The  case of  Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals. The first is privilege and at issue communications and the second principal is relation-back and the statute of limitations.

The statute of limitations in legal malpractice is three years, pursuant to CPLR 214(6) An action may be commenced against a newly to-be added defendant if that newly related defendant is so closely related to prior defendants that there is no due process violation.

"Plaintiff now seeks to avoid the expiration of the statute of limitations by asserting that his belated adding of Greenberg as a defendant "relates back" to the commencement of this action, before the statute of limitations had run. The test for determining whether a claim asserted against a new party relates back to the date upon which the claim was interposed against the original named defendants is set forth in the case of Buran v. Coupal (87 NY2d 173, 178 [1995]). This test requires that the following three conditions be met:

(1) both claims arise out of same conduct, transaction or occurrence, (2) the party to be joined is united in interest with the original named defendant (s) and, by reason of that relationship, can be charged with notice of the commencement of the action so that the party to be joined will not be prejudiced in maintaining his or her defense due to the delay and (3) the party to be joined knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well

(Matter of 27th St. Block Assn. v. Dormitory Auth. of State of N.Y., 302 AD2d 155, 163-164 [1st Dept 2002]; Buran v. Coupal, 87 NY2d at 181). "The burden is on the plaintiff to establish the applicability of the doctrine once a defendant has demonstrated that the statute of limitations has expired" (Nani v. Gould, 39 AD3d 508, 509 [2d Dept 2007]).

Here, plaintiff has met its burden to establish the applicability of the relation-back doctrine as to the first two prongs of the three-prong relation-back test. The asserted claims against Greenberg as Cohen’s employer at the time of the alleged malpractice accrued, arise out of the same conduct, transaction or occurrence, and the two parties are united in interest. It should be noted that Greenberg has not challenged plaintiff’s position that the first two prongs of the test have been established.

However, plaintiff has failed to establish the third element of the relation-back test, as he has not demonstrated that, but for an excusable mistake as to Greenberg’s identity, the action would have been brought against Greenberg as well. "When a plaintiff intentionally decides not to assert a claim against a party known to be potentially liable, there has been no mistake . . . the plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired" (Buran v. Coupal, 87 NY2d at 181)."

 

Emery Celli Brinckerhoff & Abady LLP v Rose; 2010 NY Slip Op 33288(U); November 23, 2010
Sup Ct, NY County; Judge: Joan A. Madden is a decision which outlines the law of charging liens and legal malpractice.  In this particular case, attorneys were representing plaintiff in a series of interrlated but separate litigations, all revolving around the resolution of who owns a family business, and who has to pay whom to get control of that business. 

"At issue on this petition is whether ECBA is entitled to a charging lien based on a
settlement which increased Rose’s ownership in Broadside and resulted in Rose receiving certain
items of personal property. The settlement resolved, inter alia, three actions related to disputes
among the shareholders of Broadside regarding their ownership rights in Broadside and
Broadside’s management, that arose after the death of Rose’s father, Stanley Rose, in 1994"

"Judiciary Law  475 provides that “[flrom the commencement of an action … the attorney
who appears in an action has a lien upon his [or her] client’s cause of action, claim or
counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order
in the client’s favor and the proceeds thereof in whatever hands they may come.” It further
provides that “the lien cannot be affected by any settlement between the parties before or after
judgment, final order or determination.”

“A charging lien is a security interest in a favorable result of litigation …giving the
attorney equitable ownership interest in the client’s cause of action and ensuring the attorney can
collect a fee from the fund he has created for that purpose on behalf of the client.” Chadbourne &
e. LLP v. AB Recur Finmz, 18 AD3d 222,223 (1” Dept 2005)(citations omitted).

Furthermore, although charging lien extends to settlement proceeds. ..it is only enforceable
against the fund created by that action.” Ig, (citation omitted). Thus, “where the attorney’s
services do not create any proceeds but consist solely of defending title or interest already held by
the client, there is no lien on the title or interest.” Theroux v. Theroux, 145 AD2d 625 (2d Dept
1989), citing, Pesmond v. Socha, 38 AD2d 22,24 (3d Dept 1971) lv dend,; 1 N Y2d 687 (1972).
In addition, the charging lien only extends to fees arising out of the attorney’s services in a
specific action or proceeding in which they were incurred and does not include fees due to an
attorney for other matters. See Renbl , 121 AD2d 546 (2d Dept 1986); 7
NYJur2d Attorneys at Law 4 295."

The preliminary question raised is whether the April Settlement created proceeds to
which a charging lien could attach. Even assuming arguendo that Rose did not obtain my
additional stock in Broadside as a result of the April Settlement, he nonetheless attained 100%
ownership in Broadside. Moreover, although the settlement required Broadside and Rose to buy
out the other shareholders, it cannot be said that the settlement did not result in proceeds of
litigation in his favor, particularly as the settlement resolved the issues regarding the conflicting
rights of the shareholders and made him the sole owner of Broadside. See:Tunick v. Shaw,
45 AD3d 145 (1’st Dept 2007), jv dismissed, 10 NY3d 930 (2008)(holding that photographic
images constitute proceeds of litigation to which attorneys’ charging liens could attached even
though images existed prior to litigation where attorneys’ efforts culminated in settlement
resolving conflicting rights to possession and commercial exploitation of the images); Con~are
The roux v. The roux, 145 AD2d 625 (holding that attorney’s services did not create any proceed
on which charging lien could attach where equitable distribution settlement merely permitted
plaintiff to maintain a one-half interest in the condominium that she held as a tenant by the
entirety).
That being said, however, it cannot be established on this record the extent to which the
unpaid legal fees at issue in this proceeding arose out of EC BA’s services in connection with the
litigation that was settled.

The law and its rules changes as a matter of geography.  A few miles to the south, rules are completely different.  As an example, in NY a workers’ compensation carrier may recovery its payments to plaintiff after plaintiff successfullly sues a third-party.  As an aside, there are any number of legal malpractice cases in which the attorney failed to obtain the consent of the WC carrier to a 3d party settlement and cost the client dearly.  However, in NY the carrier may not recover from a Legal Malpractice recovery due to the negligent handling of a 3d party action.  The same is not true in NJ, as we see in: Cambridge Integrated Servs. Group, Inc. v Faber
2010 NY Slip Op 33286(U) ;November 22, 2010;Sup Ct, NY County;Docket Number: 104108/2009
Judge: Marcy S. Friedman. 

"The court now holds that under New Jersey Law, “a workers’ compensation lien pursuant
to N.J.S.A. 34:15-40 attaches to the proceeds of a legal malpractice action brought to recover
damages froin an attorney who failed to institute an action against a third-party tortfcasor.”
(Frazier v N,J. Mfrs. Ins. Co., 142 NJ 590, 607 IrrJ 19951,) New York law is to the contrary, and
holds that a workers’ compensation lien applies “only against recoveries from the third-party
[* 2]
4
tortfeasors who are responsible for the claimant’s injuries.” (Shutter v Phillips Displav
Components Co., 90 NY2d 703, 708 [1997].) However, under settled law, “[tlhe rights of an
employer to be reimbursed for workers’ compensation benefits paid to an employee are governed
by the law of the State in which the benefits were paid.” (Compare Carinucci v PepsicQ. Inc.,
236 AD2d 499 [2d Dept 19971. with New Jersey Mfrs. Ins. Co. v St e cke~2,6 4 AD2d 3 14 [lSt
Dept 19991 [mistaken payments]. See also Matter of O’Cnnnor’s Estate, 21 AD2d 333 [2d Dept
19641.) The court is unpersuaded that enforcement of New Jersey Law would violate public
policy under the circumstances of this case in which a New Jersey resident was paid workers’
compensation benefits in New Jersey."

Judiciary Law 487 may be the oldest statute in American (and in Anglo-American) jurisprudence.  it dates from the first Statute of Westminster, adopted in England in 1275.  Even almost 800 years later refinements continue to be made.

in Barrows v Alexander 2010 NY Slip Op 08506 ; Decided on November 19, 2010 ; Appellate Division, Fourth Department  we see plaintiff attempting to apply Judiciary Law 487 against at attorney, but not one who was working as an attorney at the time.  However, in this case they wish to sue the defendant for acts in the legal malpractice case rather than for acts which led up to the legal malpractice case. This is denied by the Court.
 

"We conclude that the court properly denied the motion inasmuch as the proposed amendment is patently lacking in merit (see generally Anderson v Nottingham Vil. Homeowner’s Assn., Inc., 37 AD3d 1195, 1198, rearg granted 41 AD3d 1324). Section 487 applies only "to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney" (Oakes v Muka, 56 AD3d 1057, 1058), and here defendant was not acting in his capacity as an attorney in the context of this legal malpractice action (see Gelmin v Quicke, 224 AD2d 481, 482-483). Plaintiffs’ reliance on Kurman v Schnapp (73 AD3d 435) is misplaced because the record in that case establishes that the defendant was acting in his capacity as an attorney when he engaged in the alleged [*2]deceitful conduct.

Finally, the contention of plaintiffs that the court erred in denying their motion for summary judgment is not properly before us because plaintiffs failed to take an appeal from the order denying that motion. "

 

We will be the first to say that we simply do not understand this Second Department decision.  Kennedy v H. Bruce Fischer, Esq., P.C. ;2010 NY Slip Op 08709 ;Decided on November 23, 2010
Appellate Division, Second Department has the following two ideas that we cannot put together and harmonize:  Plaintiff was able to obtain a $ 1.4 million inquest verdict against a personal injury defendant, but when that felll apart, could not prove that it had a meritorious cause of action and that "but for" the attorney’s mistake would have won the case.
 

" To establish causation, "a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Kuzmin v Nevsky, 74 AD3d at 898; Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453; Wray v Mallilo & Grossman, 54 AD3d 328, 329; Carrasco v Pena & Kahn, 48 AD3d 395, 396).

Here, even as amplified by the plaintiff’s affidavit, and according every possible inference favorable to the plaintiff, the complaint failed to allege any facts tending to show that, but for Fischer’s alleged negligence in failing to serve process upon the personal injury defendant in the personal injury action, the plaintiff would have prevailed in that action insofar as asserted against the personal injury defendant (see Kuzmin v Nevsky, 74 AD3d at 898; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Rau v Borenkoff, 262 AD2d 388, 389; Weiner v Hershman & Leicher, 248 AD2d 193). The plaintiff’s remaining contentions regarding dismissal pursuant to CPLR 3211(a)(7) are without merit. Accordingly, the Supreme Court properly granted that branch of Fischer’s motion which was to dismiss the complaint pursuant to CPLR [*3]3211(a)(7). "

 

"It might seem unjust, or even perverse, for a pro se plaintiff to lose just because he happened to sue in his home state, instead of where he believes the injury occurred, and where an attorney probably would have recommended he sue. But the Court’s job is to apply applicable statutes fairly and impartially. And here, New York has chosen to favor legal "clarity" over flexible limitations rules. See Insurance Co. of North America, 91 N.Y.2d at 186. [*8] It is not the Court’s job to quibble with that policy decision."  This apt description of the borrowing statue comes fromJAGER, against-  MITSCHELE, 06-CV-1938 (JS)(WDW); UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 120572.
 

"This is a legal malpractice action brought by a New York resident against a New Jersey lawyer in connection with a District of New Jersey case on appeal to the Third Circuit, which sits in Pennsylvania. Mr. Jager contends that New Jersey’s limitations period controls. Mr. Ryak argues that, pursuant to New York’s "borrowing" statute, N.Y. C.P.L.R. § 202, New York’s statute of limitations governs. Alternatively, Mr. Ryak contends that Pennsylvania’s limitations period appliess.

The Court finds that New York’s limitations period controls. New York’s borrowing statute provides that:
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

N.Y. C.P.L.R. § 202

"[T]he primary purpose of CPLR 202 is to prevent forum shopping by a nonresident seeking to take advantage of a more favorable Statute of Limitations in New York." [*6] Insurance Co. of North America v. ABB Power Generation, Inc., 91 N.Y.2d 180, 186, 690 N.E.2d 1249, 1252, 668 N.Y.S.2d 143, 146 (N.Y. 1997). But its secondary, "equally important" purpose is "to add clarity to the law and to provide the certainty of uniform application to litigants." Id. In this regard, § 202 does not just apply to non-residents, but also to residents whose cause of action "accrue[d] without the state," and applies New York’s limitations period to such claims, regardless of whether the other state’s limitations period is shorter or longer. See, e.g., Alex v. Grande, 29 A.D.2d 616, 616, 285 N.Y.S.2d 909, 911 (3d Dep’t 1967); Rossi v. Ed Peterson Cutting Equipment Corp., 131 Misc. 2d 31, 498 N.Y.S.2d 283, 285-86 (N.Y. Sup. Ct., N.Y. County 1986); 75 N.Y. Jur. 2D Limitations and Laches § 113; David D. Siegel, N.Y. Prac. § 57 (4th ed.). Federal courts sitting in diversity must apply § 202, even if it results in a New York resident being subject to a shorter limitations period. See Kilmer v. Flocar, Inc., 212 F.R.D. 66, 70 (N.D.N.Y. 2002) (New York’s three year limitations period, not Florida’s four year, governed personal injury case arising out of Florida car accident); see also Silva v. Toll Brother’s Inc., 97-CV-741, 1998 U.S. Dist. LEXIS 19894, 1998 WL 898307, at *1-2 (S.D.N.Y. 1998) [*7] ; Loral Corp. v. Goodyear Tire and Rubber Co., 93-CV-7013, 1996 U.S. Dist. LEXIS 1018, 1996 WL 38830, at *7 (S.D.N.Y. 1996). And courts must apply § 202 without conducting a typical choice-of-law analysis. See Aboushanab v. Janay, 06-CV-13472, 2007 U.S. Dist. LEXIS 71278, 2007 WL 2789511, at *3 (S.D.N.Y. 2007)."