The opinion of the court was delivered by: LEVET
The defendant in the above-entitled action, referred to me for trial, has moved upon the record of a preliminary hearing to dismiss this action as barred by the statute of limitations.
The plaintiff, a citizen and resident of Massachusetts, sues defendant, a citizen and resident of New York, for damages alleged to have been sustained by her in an automobile collision in Virginia on January 24, 1962, at which time plaintiff was a passenger in a car operated by her husband, which purportedly was struck by defendant's car.
I find the following facts:
1. Service on defendant was made on January 21, 1965, pursuant to a court order, and is not disputed. (2, 5)
2. Defendant at the time of the accident and at the time of service was a resident of New York (4). Defendant was not a Virginia resident at any relevant time; in fact, it does not appear that defendant was ever a Virginia resident.
3. Plaintiff at all times was a resident of Massachusetts (3).
4. The defendant's automobile was garaged in New York (5).
5. The liability insurance policy was issued by the Traveller's Insurance Company in New York City (6, 7).
6. The car was licensed in New York State.
The issue here is whether the law of New York requires application of its own or the Virginia statute of limitations.
The New York statute of limitations is three years (see former Section 49, New York Civil Practice Act, subdivision 6, now Section 214(5) of N.Y. CPLR). Section 202 of the N.Y. CPLR is as follows:
"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 ...