Torts in the New York Court: A Dizzying Choice of Law Jurisprudence

June 2, 2010 by Leon Ruchelsman

Anyone who has dealt with New York’s tort choice of law jurisprudence can attest to how complicated and often unpredictable it can be.  The current regime is based on a series of Court of Appeals decisions which began with Babcock v. Jackson.[1]  The opinion by Judge Fuld discarded the traditional doctrine of the law that the site of the tort should govern any relief for the tort.[2]  In its place, the Court adopted the “‘center of gravity’ or ‘grouping of contacts’ doctrine . . . [which gives] controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.”[3]  The court drew a distinction between conduct regulating and loss allocating laws and concluded by stating that all of the issues in a particular case need not be addressed by the same law.[4]

            Nearly a decade later, Judge Fuld attempted to clarify this standard in Neumeier v. Kuehner,[5] by articulating three principles (while the decision deals specifically with a guest statute, the principles have been generally applied):

1. When the [plaintiff] and the [defendant] are domiciled in the same state, and the car is there registered, the law of that state should control and determine the standard of care which the [defendant] owes the [plaintiff].

2. [When the [plaintiff]’s conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim’s domicile.  Conversely, when the [plaintiff] was injured in the state of his own domicile and the law permits recovery, the [defendant] who has come into that state should not-in the absence of special circumstances-be permitted to interpose the law of his state as a defense.  

3. In other situations, when the [plaintiff] and the [defendant] are domiciled in different states, the rule is necessarily less categorical.  Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multistate system or producing great uncertainty for litigants.[6] 

            Unfortunately, the nearly four decades of litigation following Neumeier have done little to simplify the muddy standard created by Judge Fuld.  In K.T. v. Dash,[7] a recent First Department Ruling, the court provides a useful overview of the current law:

The first step in choice of law analysis is determining whether an actual conflict exists between the jurisdictions involved…Once an actual conflict is established, the court must turn to consideration of which jurisdiction, ‘because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issued raised in the litigation’…The framework of t his analysis raises two inquiries: ‘1) what are the significant contacts and in which jurisdiction are they located; and 2) whether the purpose of the law is to regulate conduct or allocate loss’…If the purpose of the competing laws is to allocate loss and the parties are both New Yorkers, ‘there is often little reason to apply another jurisdiction’s loss allocation rules’…if their purpose is to regulate conduct, ‘the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders’.[8]

As if that were not complicated enough:

Even where a law is conduct-regulating, we do not blindly follow the lex loci rule…we must still decide whether the foreign jurisdiction has the greater interest in addressing the alleged conduct…the competing concerns of the two jurisdictions must be considered…it is useful…to consider whether the application of the law of [the foreign jurisdiction] would thwart or threaten an important policy underlying New York’s law, or, on the other hand, whether the application of New York law would frustrate any policies underlying [the foreign jurisdiction’s] applicable rule of law.[9]

            The complexity and unpredictability of New York’s current choice of law analysis leads to any number of challenges, but it presents a particularly interesting question when a party has moved for summary judgment in a tort case involving a foreign jurisdiction.  On the one hand, the Court of Appeals has long held that “in the absence of proof of contrary applicable foreign law, the law of the forum should be applied.”[10]  This seems to place the burden of demonstrating the applicability and content of a foreign jurisdiction’s law on the party wishing to invoke it.  On the other hand, the courts of this state have long held that “To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor.”[11]  This would seem to put the burden of proving the applicability and content of the substantive law on the party seeking summary judgment.  

            This seemingly presents an opportunity to a party opposing summary judgment in a tort case which in any way concerns a foreign jurisdiction.  The opponent could well argue that part of establishing entitlement to judgment as a matter of law is establishing which jurisdiction’s law is applicable to the dispute.  So construed, this would raise a host of substantial practical difficulties for the party seeking summary judgment.  First, the movant would have to research the content of the foreign jurisdiction’s relevant law to determine, as enumerated in K.T. v. Dash,[12] whether there is an actual conflict.  Particularly in the case of a foreign country, this might entail the considerable expense of locating and retaining local counsel, and the difficulties of overcoming language barriers, and possible differences between common law and civil jurisprudence.  Moreover, if there is a conflict, the movant would be required to conduct a series of difficult and potentially expensive ‘guessing games.’  He must research all contacts between the parties and each jurisdiction in order to attempt to predict which the court would find relevant.  Additionally, he must try to determine the rationales behind both the New York and the foreign law and speculate whether each fits more neatly into the “conduct regulating” or “loss allocating” camp, and on this premise, ascertain the policy considerations behind each jurisdiction’s law and estimating whether and how they could conflict with one another.  Simply ignoring the opponent’s complaint would seem to erode the heavy burden our jurisprudence places on the movant when deciding whether to deny the opponent his day in court by granting summary judgment.  Imposing such a burden on the movant would seem to place such a heavy and expensive burden on the movant as to, for all practical purposes, provide a get-out-of- summary-judgment-free card to the opponent.  Neither option is particularly palatable.  

            The Appellate Division’s recent case law, as demonstrated in Bank of New York v. Norilsk Nickel,[13] has provided a pragmatic solution to this dilemma.  While the facts of the case are complicated, in relevant part, one of the litigants  attempted to block Norilsk Nickel’s motion for summary judgment by making unsubstantiated assertions that Soviet law might apply to the conflict.  The court noted that under CPLR § 4511(b) where a party wishes the court to take judicial notice of law promulgated in a foreign jurisdiction, they must, among other things, give notice to all adverse parties of their intention to do so.  The court also held that where, as is often the case in summary judgment, the pleadings are used to provide the requisite notice, CPLR § 3016(e) states that “Where a cause of action or defense is based upon the law of a foreign country or its political subdivision, the substance of the foreign law relied upon shall be stated.”  Thus, the First Department concluded that, “Where…the record reveals ‘a total failure’ to prove foreign law, ‘the parties have consented that the forum law be applied to the controversy’.”[14]

            The Second Department ruled similarly in Storozynski v. Storozynski.[15] The court there reversed a denial of summary judgment.  Its reasoning, in part, was that “Since the parties neither invoked [foreign] law nor supplied the applicable citations to it, they are presumed to agree that the law of New York controls.”[16]  In so ruling, the Second Department, like the First Department, cited to CPLR § 4511(b).

            Thus, questions about the correct substantive law may be a reasonable basis on which to attack a motion for summary judgment, but in order for the court to consider them, the opponent must early and clearly express their desire to invoke foreign law and demonstrate the content of the foreign law they wish to invoke.  Practically speaking, this will likely require raising the issue at the pleading phase and will require undertaking the time, effort, and expense of researching the foreign jurisdiction’s law in order to adequately state its substance in accordance with the CPLR.  These burdens substantially increase the difficulty of raising the issue and serve to deter the use of choice of law arguments as a dilatory tactic.  In all likelihood, taking these steps will only be worth the trouble to a party that sincerely desires to apply foreign law to the dispute.  On the other hand, parties that genuinely wish to apply foreign law must be extra vigilant in view of these restraints.  The decision to argue for the applicability of foreign law and the substantive research should be done early enough that they may be included in the pleadings, otherwise the party risks consenting to New York substantive law and having the choice of law issue ignored when faced with a motion for summary judgment.  Until such time as the legislature or Court of Appeals decides to simplify and rationalize New York’s choice of law jurisprudence, these procedural restrictions provide a measured and balanced approach to at least one of the potential problems raised by Babcock[17] and its progeny. 

*Leon Ruchelsman is a judge of the Brooklyn Supreme Court Civil Term, handling hundreds of matters each year ranging from insurance issues, mortgage foreclosures, construction and other accidents and general miscellaneous civil disputes.  Judge Ruchelsman has written numerous important decisions including issues of first impression in pharmaceutical products liability (Ratner v. Mcneil-PPC) and environmental city planning (Green Guerillas v. The City of New York).  In addition, Judge Ruchelsman conducts numerous civil jury trials each year.  Judge Ruchelsman is a graduate of Benjamin Cardozo School of Law.   Judge Ruchelsman would like to gratefully acknowledge the active participation in the research and writing of this article by David Skolchil, a third year law student at Benjamin N. Cardozo School of Law, who interned in chambers during the 2010 spring semester. 

[1] 12 N.Y.2d 473 (1963).

[2] Id. at 477, 481.

[3] Id. at 481.

[4] Id. at 483-84.

[5] 31 N.Y.2d 121 (1972).

[6] Id. at 128.

[7] 37 A.D.3d 107 (1st Dep’t., 2006).

[8] Id. at 116.

[9] Id.

[10] Gangel v. DeGroot, 41 N.Y.2d 840, 842 (1977).

[11] Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980).

[12] 37 A.D.3d 107 (1st Dep’t., 2006).

[13]14 A.D.3d 140 (1st Dep’t., 2004).

[14] Id. at 149.

[15] 10 A.D.3d 419 (2nd Dep’t., 2004).

[16] Id. at 420.

[17] Babcock v. Jackson, 12 N.Y.2d 473 (1963).