BAEC Bulletin May/June 2022

BAEC Bulletin | May/June 2022 | 37

presented to the federal agency except where based on newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency. The Court also noted that the Federal Tort Claims Act must be strictly complied with since it constitutes a waiver of sovereign immunity. The Court then rejected plaintiff’s argument that the permanence of his disability was unknown when his claim was filed because certain medical opinions finding that plaintiff was unable to return to his duties predated the filing of his claim, so he could have included disability as part of his alleged damages, meaning it was not newly discovered. Similarly, because there was no medical finding linking the concealed tear to the accident, and because plaintiff did not allege that the concealed tear was caused by the accident, the Court found that plaintiff failed to make a nexus between the concealed tear and the increase in damages he sought. As a result, the motion was denied. Preliminary Injunction In Strong v. Zucker , No. 21-cv-6532-DGL (Jan. 27, 2022), a state resident brought an action against the Commissioner of the New York State Department of Health challenging the constitutionality of the COVID-19 regulations that created the so-called “Excelsior Pass” and that drew distinctions between vaccinated and unvaccinated persons. Plaintiff filed a motion for a temporary restraining order and a preliminary injunction, which the Court denied after finding that plaintiff could not establish either irreparable harm or a likelihood of success on the merits. The Court questioned whether plaintiff could point to any actual harm, when his complaints focused on having to wear a mask at a gym, farmer’s market, or concert, and concluded in any event that such harms were of plaintiff’s own making and did not rise to the level of harm necessary to support preliminary injunctive relief. The Court also determined plaintiff was not likely to succeed with his lawsuit, when so many courts already had rejected similar claims, and courts are loath and ill-equipped to substitute their judgment for those of the health authorities charged with protecting public health. According to the Court, plaintiff fared no better under the alternative test that considers whether the plaintiff has raised serious questions (or a fair ground for litigation) and whether the balance of hardships weighed in his favor. Here, the Court held that the balance of hardships tipped decidedly away from plaintiff given the state’s strong interest in maintaining and protecting public health and the public’s interest in curbing the spread of COVID-19. Discovery In Strike 3 Holdings, LLC v. John Doe , No. 21-cv-1206-EAW (Dec. 15, 2021)—an action for copyright infringement based on allegations that defendant downloaded and distributed plaintiff’s motion pictures in violation of the United States Copyright Act of 1976—plaintiff moved, ex parte, for leave to serve a third party subpoena prior to the Rule 26(f) conference. Plaintiff sought to serve the subpoena on defendant’s internet service provider (“ISP”)

to determine the name and address of defendant in order to serve the complaint. The Court granted the motion, finding that good cause existed for immediate discovery notwithstanding the rule that such discovery normally is not permitted until the parties have conferred under Rule 26(f). The Court found that plaintiff had made a showing of a prima facie claim for copyright infringement, proposed a sufficiently specific discovery request, and established that expedited discovery was necessary to prevent the requested information from being lost forever, no alternative means existed to obtain the information, and plaintiff’s interest in learning defendant’s name and address outweighed any expectation defendant might keeping that information private. New York Borrowing Statute & the Statute of Frauds In Nanjing CIC Int’l Co., Ltd. v. Schwartz , 20-cv-07031-EAW- MWP (Jan. 19, 2022), plaintiff—a trading company based in China— alleged it had a verbal contract with defendants to act as its exclusive agent in the United States. The parties relationship eroded and eventually ended in 2016. Four years later, plaintiff commenced this action for, among other things, breach of contract. Defendants moved for summary judgment, contending that all of plaintiff’s claims are barred under CPLR 202, the so-called “borrowing statute,” and that plaintiff’s contract-based claims are barred by the statute of frauds. Regarding the former, when a nonresident sues on a cause of action accruing outside of New York, CPLR 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued in order to prevent forum shopping. According to defendants, the claims in plaintiff’s complaint were untimely under the borrowing statute because they are subject to a three year statute of limitations under Chinese law, and those claims allegedly accrued in China. Plaintiff did not dispute that the borrowing statute applies, or that the statute of limitations under Chinese law is three years. Instead, it argued its claims were nonetheless timely because the statute of limitations does not begin to run under Chinese law until the plaintiff has sufficient facts to know both that it has been damaged and who caused the damage. And under that accrual rule, this action is timely. In response, the Court determined that, on the record before it, there are questions of fact as to when plaintiff knew or should have known that it had allegedly been damaged by defendants and denied the statute of limitations aspect of defendants’ motion. As for the statute of frauds, plaintiff acknowledged that it is implicated by its alleged oral contract with defendants, but sought to be excused from “even allegations of bad faith or malice cannot overcome judicial immunity”