308 F. Supp. 1052 | S.D.N.Y. | 1970
OPINION
On May 15, 1963, while on active duty with the United States Navy at the Naval Air Station, Virginia Beach, Virginia, plaintiff sustained serious injuries when his car which he was then driving swerved off the road and struck a telephone pole. He was removed by a rescue squad to a civilian hospital for emergency treatment and transferred later that same day to the Portsmouth Naval Hospital in Virginia. He remained there four months until, on September 2, 1963, he was transferred by the Navy to the Bronx Veterans Administration Hospital, New York City, where he was further continuously confined for another eight months, until May 1964. In all, he was hospitalized almost an entire year.
On September 19, 1964, while still hospitalized at Bronx Veterans Hospital, plaintiff, a career serviceman with over eleven years service, was placed on the Navy’s Temporary Disability Retired List (Temporary List). He remained in that status until April 1, 1965, when he was transferred to the Retired List for Permanent Disability and is now concededly permanently retired from the Navy.
The car, a Chevrolet Corvair, which plaintiff was driving when he met with his accident had been purchased by him a month before. On January 20,1967, he commenced this action against General Motors, the manufacturer of the car, and R. K. Clark Chevrolet, the dealer from whom he had purchased it in Virginia Beach, Virginia. General Motors is charged with negligence in the design and manufacture of the automobile and with breach of an express and implied warranty of fitness for intended use.
General Motors moves for summary judgment on the ground that the action is barred by the applicable statute of limitations. A number of basic questions are presented. First, whether the Soldiers' and Sailors’ Civil Relief Act of 1940
Section 205 of the Soldiers’ and Sailors’ Civil Relief Act of 1940 provides:
“The period of military service shall not be included in computing any period now or hereafter to be limited by any law * * * for the bringing of any action * * * by or against any person in military service * *
The “period of military service” is defined by section 101(2) as;
“ * * * the time between * * * the date of entering active service * * * [and] * * * the date of discharge from active service or death while in active service * *
“ * * * The term ‘military service’, as used in this Act, shall signify Federal service on active duty with any branch of service * * * as well as training or education under the supervision of the United States preliminary to induction into the military service. The terms ‘active service’ or ‘active duty’ shall include the period during which a person in military service is absent from duty on account of sickness, wounds, leave, or other lawful cause.”
Thus, under the Act, a serviceman’s period of military service ends with the date of discharge from “active service” and his active service includes the period he is absent from duty “on account of sickness.”
In the instant case, it is undisputed that at the time of the accident plaintiff was on active duty or active service (the terms are synonomous
The Temporary List is an interim status for a serviceman eligible for permanent retirement whose disability has not yet been sufficiently stabilized to permit
When, on September 19, 1963, four months after the accident, plaintiff was placed on the Temporary List, he was under Navy hospitalization and treatment, which continued for another eight months. Under the terms of the Relief Act he was lawfully “absent from duty” on account of his injuries, awaiting a final evaluation of those injuries, which would be determinative of whether he was to be returned to duty or permanently retired. That status continued until the final determination was made that he be permanently retired for physical disability on April 1, 1965. Not until that date did the tolling provision cease operating in his favor — that was the date of his discharge from active service.
The Court therefore holds that the period of limitations was tolled by section 205 of the Relief Act until April 1, 1965, when plaintiff was placed on the retirement list for permanent disability. Since the action was brought less than two years thereafter, none of the potentially applicable statutes of limitations have run and plaintiff’s claims are not barred. This disposition makes it unnecessary to determine which of New York’s or Virginia’s statutes of limitations is applicable.
The motion for summary judgment is denied.
. 50 U.S.C.App. § 525 (1964).
. Technically, plaintiff’s two claims accrued at different dates: his negligence claim at the time of the accident and his breach of warranty claim at the time of purchase of the automobile. See Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 215, 237 N.Y.S.2d 714, 716, 188 N.E.2d 142, cert. denied, 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032 (1963); Munn v. Security Controls, Inc. (New York Corp.), 23 A.D.2d 813, 258 N.Y.S.2d 475 (1965). However, for present purposes, the difference in dates is purely academic; for convenience, the date of the accident will be used in the text.
. Under New York law, which controls in this diversity suit, see Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Rieser v. Baltimore & Ohio R. R., 123 F.Supp. 44 (S.D.N.Y.1954), aff’d, 228 F.2d 563 (2d Cir. 1955), cert. denied, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956), the applicable statute of limitations in an action by a nonresident plaintiff on an out-of-state cause of action is the shorter of that of New York or the state where the cause of action arose. N.Y.C.P.L.R. § 202 (McKinney 1963); see Smalley v. Hutcheon, 296 N.Y. 68, 70 N.E.2d 161 (1946); Kahn v. Commercial Union of America, Inc., 227 App.Div. 82, 237 N.Y.S. 94 (1929); Smith v. American Flange & Mfg. Co., 139 F.Supp. 917 (S.D.N.Y. 1956). Virginia would apply its two-year limitation period, whether the action is based upon tort or contract. Friedman v. Peoples Service Drug Stores, Inc., 208 Va. 700, 160 S.E.2d 563 (1968); Va.Code § 8-24 (1950). The shortest applicable New York period, for personal injuries, is three years. N.Y.C.P.L.R. § 214(5) (McKinney 1963).
. N.Y.C.P.L.R. § 213(2) (McKinney Supp. 1969). The four-year limitation provision of N.Y.U.C.C. § 2-725 (McKinney 1964) is inapplicable to causes of action which accrued before September 27,1964. Id. § 2-725(4).
. Despite the underlying similarity of the tort and breach of warranty claims, see Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 436, 240 N.Y.S.2d 592, 594-595, 191 N.E.2d 81 (1963), New York would still apply a contract limitation period to the breach of warranty claim. See Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 237 N.Y.S.2d 714, cert. denied, 374 U.S. 808, 83 S.Ct. 1697, 10 L.Ed.2d 1032 (1963); Blessington v. McCrory’s Stores Corp., 305 N.Y. 140, 111 N.E.2d 421, 37 A.L.R.2d 698 (1953); Mendel v. Pittsburgh Plate Glass Co., 57 Misc.2d 45, 291 N.Y.S.2d 94 (Sup.Ct.1967), aff’d mem., 29 A.D.2d 918, 290 N.Y.S.2d 186 (1968).
. N.Y.C.P.L.R. § 214(5) (McKinney 1963).
. 50 U.S.C.App. § 525 (1964).
. Id. § 511(2).
. Id. § 511(1).
. See Soldiers’ &, Sailors’ Civil Relief Act § 101(1), 50 U.S.C.App. § 511(1) (1964), quoted above. See also 10 U.S.C. § 101(24) (1964).
. 10 U.S.C. § 101(22) (1964).
. Cf. Hearings and Memoranda Before a Subcomm. of the Sen. Comm. on the Judiciary on S. 2859 & H.R. 6361, 65th Cong., 1st & 2d Sess. 28 (1918).
. See Soldiers’ & Sailors’ Civil Relief Act, § 100, 50 U.S.C.App. § 510 (1964).
. Le Maistre v. Leffers, 333 U.S. 1, 68 S.Ct. 371, 92 L.Ed. 429 (1948); Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 87 L.Ed. 1587, rehearing denied, 320 U.S. 809, 64 S.Ct. 26, 88 L.Ed. 489 (1943).
. See 10 U.S.C. § 1202 (1964).
. Id. § 1210.
. Id.
. Id. §§ 1210-11.
. Id. §§ 1202, 1210, 1211(d).
. Id. § 1210(g).
. United States Department of Defense, Uniform Implementation of Laws Relating to Separation from the Military Departments by Reason of Physical Disability, D.O.D. Directive 1332.18, ¶ (G)(1) at 9-10 (Sept. 9, 1968).
. See Lang v. Lang, 176 Misc. 213, 25 N.Y.S.24 775 (N.Y.Sup.Ct.1941).
. For example, “military service” includes “training or education under the supervision of the United States preliminary to induction into the military service.” § 101(1), 50 U.S.C.App. § 511 (1) (1964). See also § 106, 50 U.S.C.App. § 516 (persons ordered to report for induction entitled to benefits of the Act even before induction).
. Cf. Shayne v. Burke, 158 Fla. 61, 27 So.2d 751 (1946).