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AFSHAR v. PROCON INC.

DECEMBER 30, 1977

NASSER G. AFSHAR, d/b/a H. AFSHAR & COMPANY, Plaintiff, against PROCON INCORPORATED, et al., Defendants.


The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, U.S.D.J.

 Plaintiff Afshar has moved for reargument of two defendants' motions to dismiss the complaint for failure to state a claim upon which relief can be granted. Upon oral argument I granted the motions on the grounds that the claims were barred by the statute of limitations, and an order to that effect was filed on July 15, 1977. The motion for reargument is granted. After reconsideration my original decision is adhered to.

 The arguments advanced by the plaintiff on this motion are substantially the same as those originally presented in opposition to defendants' motions to dismiss.

 Plaintiff proposes that there is a conflict of laws question which must be addressed in determining whether the law of Iran or the law of New York applies. Plaintiff has not favored me with any indication of what Iranian law dictates on the issues of statutes of limitations or when a cause of action accrues. He argues that a defendant seeking to invoke the defense of statute of limitations has the burden of affirmatively proving a time bar under the law of Iran as well as that of New York.

 This argument misconstrues the New York law. The New York borrowing statute, N.Y. C.P.L.R. § 202, provides that in choice of law situations, where an issue is tried in New York but a foreign law provides the rule of decision, the applicable statute of limitations will be that of New York or that of the foreign jurisdiction, whichever provides the shorter period of limitations. Thus if plaintiff's cause of action is time barred under the law of either New York or Iran, then the claim is barred.

 Plaintiff argues in the alternative that the law of Iran applies with respect to when the cause of action accrued. Such is not the law. New York law governs the statute of limitations issue if it is shorter than that of Iran. This includes the question of when a cause of action accrues. Lowell Wiper Supply Co. v. Helen Shop, Inc., 235 F. Supp. 640, 644 (S.D.N.Y. 1964).

 The plaintiff argues that suit could be brought for breach of two separate and distinct rights arising out of the contract: (1) Suit for wrongful termination; and (2) Suit for compensation which became due subsequent to the alleged wrongful termination. This distinction is illusory. The agency contract was not severable in this fashion. The notice of termination necessarily related to any agreement by defendant Procon Incorporated ("Procon") to pay compensation then due or to become due thereafter. Plaintiff's complaint evidences a realization of this as well as plaintiff's receipt of adequate notice.

 20. On or about October 5, 1967 the defendants above named conspired to unilaterally attempt termination of the agency agreement with the plaintiff and to divert the commissions and other compensation due plaintiff to the defendant Shaharam Pahlavnia and others and to conceal their violations of their agreement with and obligations to the plaintiff.

 21. For the purpose of such conspiracy and concealment the defendant Procon Incorporated, in violation of the agency agreement with the plaintiff, notified the plaintiff... that Procon was terminating its appointment of the plaintiff as its agent in Iran and directing plaintiff to discontinue all further representations on behalf of Procon.

 22. Thereafter defendant Procon Incorporated... paid the compensation and other amounts due to plaintiff as aforesaid to defendant Shaharam Pahlavnia or to a company organized by the defendants and distributed said amounts to Shaharam Pahlavnia or to said company who distributed the funds to various persons who had rendered no services or given no consideration therefor and were not entitled to payment therefor, with intent to deprive plaintiff of his just compensation and right to reimbursement from the defendant Procon Incorporated...

 * * *

 24. The termination notice was given by Procon as part of a conspiracy... to prevent collection of the compensation and other funds due to plaintiff from the defendants Procon and U O P, Inc. and from other persons, firms and ...


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