538 F. App'x 110

2d Cir.

2013

Joseph Scott DAGLIANO, Plaintiff-Appellant, v. ELI LILLY, PHARMACEUTICAL DRUG COMPANY, Defendant-Appellee.

No. 12-1329-cv

United States Court of Appeals, Second Circuit.

Nov. 4, 2013.

548 Fed. Appx. 110

PRESENT: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS and ROSEMARY S. POOLER, Circuit Judges.

Joseph Scott Dagliano, Bland, VA, pro se. Adam B. Michaels, Pepper Hamilton LLP, New York, NY; Nina M. Gussack, Pepper Hamilton LLP, Philadelphia, PA, for Defendant-Appellee.

SUMMARY ORDER

Plaintiff-Appellant Joseph Scott Dagliano, proceeding pro se, appeals from the district court‘s grant of summary judgment in favor of Defendant-Appellee Eli Lilly Pharmaceutical Drug Co. (“Eli Lilly“) on the ground that Dagliano‘s product liability action was barred by the statute of limitations. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

“We review a district court‘s grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.2005). “We will affirm the judgment only if there is no genuine issue as to any material fact, and if the moving party is entitled to a judgment as a matter of law.” Id. However, reliance upon conclusory statements or mere allegations is insufficient to defeat a summary judgment motion. See Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993).

Dagliano, an incarcerated individual residing in Virginia, alleged that he was prescribed Zyprexa, an anti-psychotic drug manufactured by Eli Lilly, in March 2003, and that Zyprexa caused him to suffer from fatigue, nausea, loss of appetite and abdominal pains. In December 2003, Dagliano ceased taking Zyprexa because he believed that it caused his stomach pain, and in May 2007, Dagliano filed suit in this case. The district court granted Eli Lilly‘s motion for summary judgment, finding that Virginia‘s two-year statute of limitations on product liability suits applied and that the statute of limitations had run between Dagliano‘s alleged injury in 2003 and his filing of the instant suit in 2007. The district court also found that Dagliano had not put forth any evidence supporting his claim that the statute of limitations should have been tolled by his alleged disability or his incarceration or that the statute of limitations should have been extended based on Eli Lilly‘s alleged fraudulent concealment.

While we affirm the district court‘s grant of summary judgment for substantially the reasons stated in the district court‘s February 29, 2012 Memorandum Order and Judgment, we write to clarify one point in the district court‘s analysis. The district court found that New York law requires it to perform an “interest analysis to determine which jurisdiction has the greatest interest in having its law applied to the case.” App. at 280. While this is true in most contexts, the interest analysis does not apply to statutes of limitations. See N.Y. C.P.L.R. 202; Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir.1998). Thus, even though the district court misstated the general rule, its conclusion that Virginia‘s two-year statute of limitations applied under New York law was correct, as New York‘s so-called “borrowing statute” provides that a suit by a non-resident bringing a cause of action that accrues outside of New York “cannot be commenced after the expiration of the time limited by the laws of either [New York] or the place without the state where the cause of action accrued.” N.Y. C.P.L.R. 202 (emphasis added). In tort cases, “a cause of action accrues at the time and in the place of the injury.” Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525, 529, 693 N.Y.S.2d 479, 715 N.E.2d 482 (1999). Here, Dagliano‘s cause of action accrued in Virginia because he took Zyprexa and suffered his alleged injury there. Because Virginia‘s two-year statute of limitations for personal injury actions, see Va.Code Ann. § 8.01-243(A), is shorter than New York‘s three-year statute of limitations, see N.Y. C.P.L.R. 214(5). New York‘s borrowing statute requires application of Virginia‘s two-year statute of limitations, which the district court properly applied in finding Dagliano‘s suit time-barred.

Additionally, to the extent that Dagliano has put forward on appeal new evidence supporting his claim that the statute of limitations should have been tolled by his alleged disability, that evidence is not properly before this Court and will not be considered. See Int‘l Bus. Machines Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir.1975). We have considered all of Dagliano‘s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED. Dagliano has moved for a “stipulation of facts.” It is further ORDERED that the motion is DENIED.

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