FILED: NEW YORK COUNTY CLERK 07/31/ :05 PM INDEX NO /2017 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/31/2017

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1 189-16/DJF SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x JACLYN FIGUEROA née JOSKO, as Administrator of the goods, chattels, and credits which were of PETER FIGUEROA, deceased, individually and as guardian of PEYTON FIGUEROA, infant. Index No /2017 MOTION TO DISMISS - against - Plaintiffs, HORNBLOWER NEW YORK LLC., Individually and d/b/a HORNBLOWER CRUISES & EVENTS, HORNBLOWER YACHTS, LLC., and RAFAELLA D. MARANHAO, Defendants. x HORNBLOWER DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS FREEHILL HOGAN & MAHAR, LLP Attorneys for Defendants Hornblower New York, LLC and Hornblower Yachts, LLC B ohn J. Walsh Daniel J. Fitzgerald 80 Pine Street 25th Floor New York, New York Telephone: (212) Facsimile: (212) Fitzgerald@freehill.com 1 of 12

2 PRELIMINARY Defendants HORNBLOWER NEW YORK, LLC and HORNBLOWER YACHTS, LLC, (collectively, "Hornblower") by their attorneys, Freehill, Hogan & Mahar, LLC, file this Memorandum of Law in Support of Their Motion to Dismiss pursuant to New York Civil Practice Law and Rules ("CPLR") 3211(5) and (7), and will show the Court as follows: ISSUES PRESENTED (1) New York's "borrowing statute" (CPLR 202) requires application of the limitations period in the state where a non-resident's cause of action accrues. Plaintiffs are New Jersey residents who claim violations of the Dram Shop Act caused a car accident in New Jersey. Is the Court required to apply New Jersey's two-year limitations period to claims arising from a car accident on the New Jersey Turnpike? (2) Courts apply maritime law only to torts that have a potentially disruptive impact on maritime commerce and are significantly related to a traditional maritime activity. The U.S. Second Circuit has held that maritime law did not apply to a state dram-shop claim where the potential impact on maritime commerce was too remote. Does maritime law apply to Plaintiffs' claim that the alleged over-service of alcohol on a vessel in New York caused a car accident in New Jersey? FACTUAL AND PROCEDURAL BACKGROUND During the evening of May 10, 2014, Peter Figueroa ("Figueroa" or "Plaintiff') attended a dinner cruise event entitled "Rock the Yacht-Saturday Night Party Cruise" on Hornblower's vessel. See Fitzgerald Affidavit at 5. Figueroa and three friends attended the event by driving to New York City and embarking the vessel there. Id. When the cruise ended and returned the dock, Figueroa returned to New Jersey in a car driven by his companion Defendant Rafaella D. Maranhoa ("Maranhoa"). Id. In the early morning hours of May 11, 2014, Figueroa's car was involved in a single-vehicle accident on the New Jersey Turnpike. Id. Figueroa died in the crash. Id. 2 2 of 12

3 The administrator of Figueroa's estate filed a Complaint against Hornblower on April 26, Id. at 3. Plaintiffs assert that Hornblower should be liable for damages arising from Figueroa's death due to allegedly over-serving alcohol to Maranhoa in violation of New York's Dram Shop Act, or alternatively due to Hornblower's negligence under maritime law. Id. There is no dispute that Plaintiffs are New Jersey residents and the car accident occurred in New Jersey. Id. at 6. SUMMARY OF ARGUMENT Plaintiffs' suit is premised entirely on two causes of action: the alleged violation of dram shop laws, and negligence under maritime law. First, Plaintiffs' dram shop claim is barred by New Jersey's two-year statute of limitations. New York's borrowing statute (CPLR 202) requires application of the limitations period where an out-of-state plaintiffs cause of action accrued. Plaintiffs' claims accrued in New Jersey because the car accident giving rise to Plaintiffs' claims occurred there, and New Jersey's limitations period for personal injury claims is two years. Because Plaintiffs did not file this lawsuit against Defendants until two years and eleven months after the car accident, Plaintiffs claims are barred as a matter of law. Also, Plaintiffs' maritime negligence claim must be dismissed because maritime law does not apply. For maritime law to apply, a defendant's conduct must have a potentially disruptive impact on maritime commerce and be related to a traditional maritime activity. Because a car accident in New Jersey does not meet either criterion, Plaintiffs' maritime claims must be dismissed. In fact, the U.S. Southern District of New York denied Plaintiffs' attempt to intervene in a suit related to the same underlying incident, in part because the court doubted maritime law applied to Plaintiffs' claims. Accordingly, Plaintiffs' maritime claims should also be dismissed as a matter of law. 3 3 of 12

4 ARGUMENT I. PLAINTIFFS' CLAIMS ARE BARRED BY NEW JERSEY'S TWO-YEAR STATUTE OF LIMITATIONS A. New York's "Borrowing Statute" mandates application of New Jersey's statute of limitations to causes of action that accrue there. New York has adopted a "borrowing statute" that requires New York courts to apply limitations periods from foreign jurisdictions where a cause of action accrues. New York CPLR 202 (the "Borrowing Statute") provides: "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 resident of the state the time limited by the laws of the state shall apply." The New York Court of Appeals has interpreted this to mean that when an out-of-state resident files suit in New York, the statute of limitations in the state where the cause of action accrued controls if it bars plaintiff's action. Insurance Co. of N Am. v. ABB Power Generation, 91 N.Y.2d 180, (N.Y. 1997)("We conclude that CPLR 202 requires that a court, when presented with a cause of action accruing outside New York, should apply the limitation period of the foreign jurisdiction if it bars the claim. Only where the cause of action accrues in favor of a New York resident is this rule rendered inapplicable." (emphasis added)) This is true even when parties agree by contract that New York law should apply to a transaction. Id. Accordingly, for the borrowing statute to have effect, a plaintiff must (1) be an out-ofstate resident, and (2) his cause of action must have accrued outside of New York. Here, there is no dispute that Plaintiffs are New Jersey residents. In Plaintiffs' First Amended Complaint, Plaintiffs assert that at the time of Figueroa's death Plaintiffs were married and resided in East Newark, New Jersey. (Complaint at ilf1-5, Exh. A). 4 4 of 12

5 Regarding accrual of the action, "for purposes of the New York borrowing statute, a cause of action accrues where the injury is sustained rather than where the defendant committed the wrongful acts." Gordon & Co. v. Ross, 63 F. Supp. 2d 405, 408 (S.D.N.Y. Sept. 3, 1999)(emphasis added) citing Global Financial Corp. v. Triarc Corp., 93 N.Y.2d 525 (N.Y. 1999). In Global Financial Corp., the New York Court of Appeals held that although the allegedly wrongful conduct supporting plaintiff's quantum meruit claim occurred in New York, the economic impact on plaintiff occurred in its home state of Delaware. Global Financial Corp. v, Triarc Corp., 93 N.Y.2d 525, 526 (N.Y. 1999). Therefore, the plaintiff's cause of action "accrued" in Delaware, and Delaware's statute of limitations controlled. Id. at 530; see also Sack v. Low, 478 F.2d 360, 365 (2d Cir, 1973). "The traditional view has been that a cause of action for tort arises when and where 'the last event necessary to make an actor liable... takes place.' Restatement of the Conflict of Laws 377 (1934))(emphasis added). Since a tort action traditionally has not been viewed as complete until the plaintiff suffers injury or loss, the cause of action has been considered to arise at the place where this damage was sustained." Sack, 478 F.2d at 365. The borrowing statute's language is unqualified and applies broadly to all types of claims, including to personal injury claims. New York appellate courts have held that personal injury claims and negligence claims "accrue" in the state where the injury occurred. Martin v. Julius Dierck Equip. Co., 43 N.Y.2d 583, (N.Y. 1978)(plaintiff s negligence claim for personal injuries accrued in Virginia where injury occurred for purposes of New York's borrowing statute); Dagliano v. Eli Lilly, Pharm. Drug Co., No , 2013 U.S. App. LEXIS 5 5 of 12

6 22567, *4 (2d Cir. 2013)(applying New York law and holding personal injury claim accrued in state where personal injury occurred). More specifically, New York courts have held that personal injury claims arising from car accidents "accrue" in the state where the crash occurred. De Martino v. Rivera, 148 A.D.2d 568, 570 (N.Y. App. Div. 2d Dep't Mar. 20, 1989)(holding that personal injury claim "accrued" in New Jersey where car crash occurred); Antone v. General Motors Corp., Buick Motor Div., 64 N.Y.2d 20, 31 (N.Y, 1984)(same in Pennsylvania); Wamboldt v. Mannion, 281 F. Supp. 774, 774 (S.D.N.Y. 1968)(same result applying predecessor borrowing statute). Like the personal injury cases cited above, it is clear that a cause of action under the Dram Shop Act "accrues" where physical injury or property damage occurs as a result of a customer's alleged intoxication. The New York Dram Shop Act provides: Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages. NY CLS Gen Oblig (emphasis added). Countless opinions emphasis that the Dram Shop Act provides a cause of action to persons whose injuries are "caused by" an intoxicated person who was served alcohol while visibly intoxicated. See, e.g., O'Gara v, Alacci, 67 A.D.3d 54, 59, (N.Y. App. Div. 2d Dep't Sept. 22, 2009); Sullivan v. Mulinos of Westchester, Inc., 114 A.D.3d 844, 845 (N.Y. App. Div. 2d Dep't Feb. 19, 2014). In other words, a plaintiff does not have a cause of action under the Dram Shop Act until he is injured by an intoxicated person, despite where the intoxication took place. 6 6 of 12

7 The "the last event necessary to make an actor liable" under Plaintiffs' Dram Shop claim was Figueroa's car accident in New Jersey. See Sack, 478 F.2d at 365 quoting Restatement of the Conflict of Laws 377 (1934). Like the defendant's conduct in Global Financial Corp., or in the car crash case of De Martino v. Rivera, Plaintiffs' causes of action did not "accrue" until Figueroa was injured in New Jersey. Although Figueroa alleges that Hornblower served drinks to his driver in New York, New York appellate courts hold that a cause of action accrues where the injury is sustained rather than where a defendant allegedly committed wrongful acts. Global Financial Corp., 93 N.Y.2d at 525. Accordingly, the Court must apply New Jersey's statute of limitations. Unlike New York's three-year statute of limitations, the New Jersey limitations period for personal injury claims is only two years. See N.J. Stat. 2A:14-2; Cornett v. Johnson & Johnson, 211 N.J. 362, 368 (N.J. 2012). And, the New York Court of Appeals requires courts to enforce the Borrowing Statute when it would function to bar an out-of-state plaintiff's claim: In sum, we conclude that CPLR 202 requires that a court, when presented with a cause of action accruing outside New York, should apply the limitation period of the foreign jurisdiction if it bars the claim. Only where the cause of action accrues in favor of a New York resident is this rule rendered inapplicable. It matters not that jurisdiction is unobtainable over a defendant in the foreign jurisdiction or that the parties have contracted to be venued in this State. There is no inconsistency in applying the statute in either of these circumstances, and the purposes of the borrowing statute are in no way undermined by the application of the rule to such cases. Insurance Co. of N Am. v. ABB Power Generation, 91 N.Y.2d 180, 188, 690 N.E.2d 1249, 1253 (N.Y. 1997). Here, Plaintiffs allege causes of action arise from a car wreck on May 11, 2014, in New Jersey. Plaintiffs did not file suit until April 26, 2017, approximately two years and eleven months after the accident occurred, and over eleven months after the two-year statute of limitations expired. Accordingly, the Court should apply New Jersey's statute of limitations to 7 7 of 12

8 Plaintiffs' claims, as required by the Borrowing Statute, and hold that Plaintiffs' claims are barred by New Jersey's two-year statute of limitations. B. Enforcement of New Jersey's statute of limitations supports the New York Borrowing Statute's purpose. New York courts have noted that the Borrowing Statute has remained "substantially unchanged" for over one hundred years Ontario, Inc. v. Samsung S&T Corp., 144 A.D.3d 122, 125 (N.Y. App. 1st Dept, 2016). The Borrowing Statute was enacted to prevent forum shopping, and to add clarity for out-of-state claimants Ontario, Inc., 144 A.D.3d at 125; Insurance Co. of N. Am. v. ABB Power Generation, 91 N.Y.2d 180, (N.Y. 1997) ("CPLR 202 is designed to add clarity to the law and to provide the certainty of uniform application to litigants.") Plaintiffs had two years to bring a claim against Defendants after the incident. Instead, Plaintiffs slept of their rights and waited to file suit eleven months after the limitation period had expired. Although Defendants will be prejudiced by witnesses' loss of memory, added difficulty in locating witnesses, and the removal and destruction of physical evidence that has occurred during the two years and eleven months preceding Plaintiff's initiation of this lawsuit, New York courts routinely enforce the Borrowing Statute without regard to any specific prejudice suffered by defendants. See, e.g., Smith Barney, Harris Upham & Co, v. Luckie, 245 A.D.2d 17, 18, 665 N.Y.S.2d 74, 75 (N.Y. App. Div. 1st Dept 1997)(unanimously reversing trial court order denying dismissal without discussion of specific prejudice); Whale Telecom Ltd, v. Qualcomm Inc., 41 A.D.3d 348, 348, 839 N.Y.S.2d 726, 727, (N.Y. App. Div. 1st Dept 2007)(dismissal unanimously affirmed without discussion of specific prejudice); Aronitz v. PricewaterhouseCoopers LLP, 27 A.D.3d 393, 394, 812 N.Y.S.2d 504, 505 (N.Y. App. Div. 1st Dept 2006)(dismissal unanimously affirmed of without discussion of specific prejudice). 8 8 of 12

9 Also, although an out-of-state claimant's particular state of residence is immaterial to application of the Borrowing Statute, here Plaintiffs were residents of the same state where the cause of action accrued: New Jersey. A New Jersey resident cannot claim to be surprised that causes of action arising from personal injuries suffered in New Jersey are barred as a matter of law under New Jersey's limitation period. Here, the Court would promote the Borrowing Statute's purpose in establishing clear limitation periods for out-of-state claimants by enforcing the limitations period of Plaintiffs' home state. Moreover, plaintiffs who sue under the Dram Shop Act are typically bystander motorists who are uninvolved with the Defendant driver's consumption of alcohol. See, e.g., Sherwood v Otto Jazz, Inc., 142 A.D.3d 1160, 1160 (N.Y. App, Div. 2d Dep't 2016). If this Court holds that New York's statute of limitation applies to Plaintiff's claims, instead of New Jersey's, such a holding would have broad implications contrary to the very purpose of the Borrowing Statute. Under that ruling, a New Jersey resident and innocent bystander who is injured in a car crash caused by a person who became intoxicated in New York could escape New Jersey's limitations period by suing in New York. That is exactly the opposite result mandated by the Borrowing Statute. To hold that Figueroa is somehow able to escape New Jersey's statute of limitations, the Court must create some new exception to the Borrowing Statute that does not currently exist. This Court should not create a new loophole that would allow New Jersey residents to avoid the limitations period established by their state. II. MARITIME LAW DOES NOT APPLY TO FIGUEROA'S CAR ACCIDENT IN NEW JERSEY. In addition to a claim for dram shop liability, Plaintiff also asserts a negligence claim under maritime law. However, maritime law does not apply because a car crash in New Jersey does not have a potentially disruptive effect on maritime commerce or bear a significant 9 9 of 12

10 relationship to traditional maritime activities. Plaintiff's legal recourse after the incident was to timely pursue negligence or dram shop claims under state law. Plaintiff should not be permitted to alternatively request application of maritime law to a car crash in New Jersey simply because she failed to timely file her state-law claims. To determine whether maritime law applies to a plaintiff's tort claim, the New York Court of Appeals has relied on the U.S. Supreme Court's decision in Grubart. See O'Hara v. Bayliner, 89 N.Y.2d 636, 645, 679 N.E.2d 1049, 1054 (N.Y. 1997). Under Grubart, for maritime law to apply to a tort claim, the tort must have: (1) occurred on navigable waters or have been caused by a vessel on navigable waters, (2) the type of incident must have a potentially disruptive effect on maritime commerce, and (3) the activity that caused the incident must bear a significant relationship to traditional maritime activities. Jerome B. Grubart v. Great Lakes Dredge & Dock Co,, 513 U.S. 527, 541 (1995). Applying these fundamental guidelines from the U.S. Supreme Court, the U.S. Second Circuit affirmed a district court's ruling that maritime law did not apply to a claim under Connecticut's Dram Shop Act. Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 248 (2d Cir. 2014). Like New York, Connecticut's Dram Shop Act created strict liability for licensed vendors who sold alcohol to a visibly intoxicated patron. Id. In Tandon, patrons of a marina bar left the bar and proceeded to get into a fist fight on a floating dock accessible only by water. Id. One of the patrons was knocked into the water and drowned. Id, The court ignored arguments regarding whether the location of the fight was sufficient to require application of maritime law because it held that a fist fight by drunken patrons was too remote to realistically threaten maritime commerce. Id. The court therefore held that maritime law did not apply over the tort claims, and the claims were governed by state law. Id of 12

11 In this very case, Plaintiff Figueroa sought to intervene in the U.S. Southern District of New York in a suit brought by another passenger who was injured in the same car accident of May 11, In that case, the U.S. Southern District of New York declined to permit intervention in part because the court doubted it had subject matter jurisdiction over Figueroa's maritime claims. Forde v. Hornblower N.Y., LLC, No. 16-cv-4028, 2017 U.S. Dist. LEXIS 40255, *18 (S.D.N.Y. Mar. 20, 2017). The court denied intervention and cited Tandon, noting that admiralty law applies only when "the general character of the activity giving rise to the incident bears a substantial relationship to traditional maritime activity." Id. citing Tandon, 752 F.3d at 248. Like the fist-fight in Tandon, a car crash involving a New Jersey resident on New Jersey highways does not have a potentially disruptive effect on maritime commerce, and it does not have any relationship to a traditional maritime activity. New Jersey has ample law governing traffic on its highways, and legal recourse is available to New Jersey residents injured by the negligence of others. Requiring New Jersey residents involved in a New Jersey car crash to litigate under principles of maritime law is contrary to the U.S. Supreme Court's guidance in Grubart and New Jersey's inherit interest in establishing law that governs claims arising within its boundaries. As the U.S. Southern District of New York indicated, this court should dismiss Figueroa's maritime claims because maritime law does not apply. CONCLUSION Because New York law mandates that out-of-state claimants comply with the limitations period of the state where a cause of action accrues, Defendants respectfully request that this honorable Court issue an Order dismissing Plaintiff's dram shop claims because they were filed eleven months after the limitations period expired and are barred as a matter of law. Also, of 12

12 because a car crash in New Jersey has neither a potentially disruptive effect on maritime commerce nor bear any relationship to a traditional maritime activity, Defendants respectfully request that this honorable Court issue an Order dismissing Plaintiff's maritime negligence claim. Dated: New York, New York July 31, 2017 FREEHILL HOGAN & MAHAR LLP Attorneys for Defendants HORNBLOWER NEW YORK, LLC and HORNBLOWER YACHTS, LLC, BY: JThn J. Walsh Daniel J. Fitzgerald 80 Pine Street New York, NY Telephone Facsimile: TO: Richard M. Winograd, Esq. Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, LLP Attorneys for Plaintiffs 225 Broadway, 13th Floor New York, New York Ms. Rafaella D. Maranhao 18 Franklin Street, 2nd Floor, Apt. 3 Harrison, New Jersey of 12