Published January 25, 2016 by

Carrier’s 18-month Statute of Limitations under ICCTA

Freight forwarders and 3Pl’s who have outstanding charges for their transportation services need to move quickly to recover these charges because taking time to do so, may be fatal to the freight forwarder’s claim in the court.  Freight forwarders’ action can be statutorily time-barred under ICC Termination Act of 1995 (“ICCTA”), Pub. L. No. 104-88, 109 Stat. 803 (1995), 49 U.S.C. § 14705(a).  49 U.S.C. § 14705(a) states: (a) In general.–A carrier providing transportation or service subject to jurisdiction under chapter 135 must begin a civil action to recover charges for transportation or service provided by the carrier within 18 months after the claim accrues. ICCTA would preempt New York’s breach of contract for services 6-year statute of limitations under CPLR 213(2).  Under the Supremacy Clause of the United States Constitution, federal laws “shall be the supreme Law of the Land” and Congress is vested with the authority to supersede state statutory or regulatory law.  U.S. Const., art. VI, cl. 2, State ex rel. Grupp v. DHL Exp. (USA), Inc., 19 N.Y.3d 278, 283, 970 N.E.2d 391, 394 (2012).  Within constitutional limits Congress may preempt state authority by so stating in express terms.  Biscone v. JetBlue Airways Corp., 103 A.D.3d…

Read More Carrier’s 18-month Statute of Limitations under ICCTA

Contract Law

CPLR 213 CPLR 3211 ICC Termination Act of 1995 New York State U.S. Constitution U.S. Federal

Published January 18, 2016 by

Failure of non-New York Entity to Register in New York can Bar Legal NY Action

Generally speaking, foreign companies (e.g. Delaware or other non-N.Y. corporations or companies) that are doing business in New York are required to register with N.Y. Department of State.  N.Y. BCL § 1301 (a foreign corporation shall not do business in this state until it has been authorized to do so as provided in this article).  A non-N.Y. company, doing business in New York, that fails to register with N.Y. Dept. of State, and then wishing to commence action in New York courts can face a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action.  The basis for dismissal are found under N.Y. BCL § 1312(a), which states: A foreign corporation doing business in this state without authority shall not maintain any action or special proceeding in this state unless and until such corporation has been authorized to do business in this state and it has paid to the state all fees and taxes imposed under the tax law or any related statute, as defined in section eighteen hundred of such law, as well as penalties and interest charges related thereto, accrued against the corporation. This prohibition shall apply to any successor in interest of such foreign corporation.…

Read More Failure of non-New York Entity to Register in New York can Bar Legal NY Action

Corporate Law

CPLR 3211 New York State NY BCL 1301 U.S. Constitution U.S. Federal

Published January 14, 2016 by

New York’s Corporate Standing or the Lack of Legal Capacity to Sue in Transportation Sector

It is not uncommon for corporate players to form multiple legal entities.  Multiple legal formations can be useful in limitation of business liability or can be used as tool for improvement of business efficiencies.  When business problems arise to a level that requires attention of the court, understanding of legal entity structure is important.  In a breach of contract or tort action, filing commencement papers with wrong entity as a plaintiff can result in the dismissal pursuant to CPLR 3211(a)(3). Rule 3211. Motion to dismiss. (a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: * * * 3. the party asserting the cause of action has not legal capacity to sue; or * * * The basis for CPLR 3211(a)(3) are rooted in CPLR 1004.  To have standing in the breach of contract claim, the party must be a part of contractual agreement. Generally, if the party is listed on the contractual document, that party has a right to maintain an action in its own name. CPLR 1004 also permits “real parties in interest” to have standing to sue or be sued.…

Read More New York’s Corporate Standing or the Lack of Legal Capacity to Sue in Transportation Sector

Contract Law

CPLR 1004 CPLR 3211 New York State