Charkiewicz v. Robert Bosch LLC et al

Filing 53

ORDER granting 39 Motion to Amend/Correct/Supplement; granting 42 Motion to Amend/Correct/Supplement -- For the reasons set forth in the attached document, I grant the defendants' motion to amend. Ordered by Magistrate Judge James Orenstein on 2/11/2013. (Orenstein, James)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
CATHERINE E. YOUNGMAN,
Plaintiff,
- against
ROBERT BOSCH LLC, et al.,
Defendants.
----------------------------------------------------------X

MEMORANDUM
AND ORDER
11-CV-2521 (SLT) (JO)

James Orenstein, Magistrate Judge
Defendants Robert Bosch LLC, Robert Bosch Tool Corporation (collectively, "Bosch"),
Lowe's Home Centers, Inc., and Lowe's Companies, Inc. (collectively, "Lowe's") seek leave to file
an amended Answer that asserts affirmative defenses under New Jersey law to the plaintiff's tort
claims. See Docket Entry ("DE") 39 (original motion); DE 42 (supplemental motion papers); Fed.
R. Civ. P. 15(a)(2). Plaintiff Catherine E. Youngman ("Youngman"), in her capacity as the Trustee
of the bankruptcy estate of original plaintiff Dominik Charkiewicz ("Charkiewicz"), opposes the
amendment: she claims that the court must apply the substantive law of New York, and that the
proposed amendment is therefore futile; in addition, she contends that the motion is untimely. See
DE 40; DE 46. For the reasons set forth below, I grant the defendants leave to amend their
Answer. 1

1

The case law of this circuit is inconsistent as to whether a magistrate judge has the authority to
deny a motion to amend where, as a practical effect, such a ruling is dispositive. Compare
Jean-Laurent v. Wilkerson, 461 F. App'x 18, 25 (2d Cir. 2012) (remanding to district court to
conduct de novo review of magistrate judge's denial of leave to amend which effectively dismissed
state law claims) (citing Williams v. Beemiller, Inc., 527 F.3d 259, 266 (2d Cir. 2008)) with
Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007) (characterizing a motion to amend as a
"nondispositive" motion that a magistrate judge may decide) and Kilcullen v. New York State Dep't
of Transp., 55 F. App'x 583, 584 (2d Cir. 2003) (same) and Marsh v. Sheriff of Cayuga County, 36
F. App'x 10, 11 (2d Cir. 2002) (citing 28 U.S.C. § 636(b)(1)(A) as authority for the proposition that
magistrate judge had authority to deny a motion to amend the complaint). Regardless of whether
the denial of a motion to amend should be considered "nondispositive," it is apparent that
permitting an amendment cannot dispose of a claim or defense. I therefore conclude that under any
reading of applicable law, I have authority to grant the instant motion.

I.

Background
Charkiewicz filed this action in state court on February 25, 2011. He asserted tort claims

under New York law based on injuries he claimed to have sustained as a result of using a table saw
that the defendants manufactured and sold. See generally DE 1 at 7-27 (Verified Complaint) (the
"Complaint"). In his Complaint, Charkiewicz stated that he "resides" in Brooklyn, New York; that
he purchased the table saw at a Lowe's store in Staten Island, New York on December 7, 2007; and
that he sustained an injury while using the saw at an address in Bayonne, New Jersey on February
28, 2009. Id. ¶¶ 2, 45-47. On May 25, 2011, the defendants – all of them corporate entities
incorporated, and with principal offices, in states other than New York – then invoked federal
diversity jurisdiction to remove the case to this court. DE 1 at 1-3 (removal notice).
On June 1, 2012, the defendants filed the instant motion. They asserted that discovery in
this case had revealed that the Bayonne site of the accident mentioned in the Complaint was in fact
Charkiewicz's residence at the time. Based on that fact and their analysis of applicable
choice-of-law rules, the defendants argued that this case is governed by the law of New Jersey; as
a result, they asked leave to file an amended complaint raising affirmative defenses under New
Jersey law. DE 39. Youngman (who was substituted as plaintiff after being appointed as the
Trustee for Charkiewicz's bankruptcy estate, see DE 35; Fed. R. Civ. P. 25) opposes the motion on
two grounds. First, she contends that the addition of affirmative defenses under New Jersey law
would be futile because Charkiewicz was a New York resident at all material times for the
purposes of determining controlling law, and that this action arises under the substantive law of
New York. Second, she argues that the defendants waited too long to seek leave to amend their
Answers. DE 40; DE 46.

2

II.

Discussion
Once a party is no longer permitted to amend its pleading as a matter of course, see Fed. R.

Civ. P. 15(a)(1), that party may only amend its pleading upon the consent of its adversaries or by
leave of the court. Fed. R. Civ. P. 15(a)(2). Such leave shall be "freely give[n] … when justice so
requires." Id. Although the determination of a motion for leave to amend is committed to the
court's sound discretion, see Dluhos v. Floating and Abandoned Vessel, Known as "New York",
162 F.3d 63, 70 (2d Cir. 1998), a court should not deny leave to amend absent reasons such as
(among others not pertinent here) "undue delay" or the "futility" of the proposed amendment.
Foman v. Davis, 371 U.S. 178, 182 (1962). I address each proffered basis for denying leave to
amend in turn below.
A.

Undue Delay

Youngman contends that I should deny the motion as untimely. She notes that that the
defendants have had all the information necessary to conduct a choice-of-law analysis and assert
defenses under New Jersey law since the outset of this litigation. Moreover, Youngman asserts that
she shaped her discovery strategy around an assumption that New York law would control, that
she would have chosen a different discovery strategy had she known that New Jersey law applies,
and that granting the motion will therefore cause her prejudice. See DE 46 at 58-65.
I disagree that the defendants had sufficient notice, at the start of the case, of all the facts
pertinent to the choice-of-law analysis. As discussed further below, while the place of the tort is an
important factor, with respect to certain types of claims it is also important to know the domicile of
each party. And while the Complaint did reveal the site of the tort, it obscured facts necessary to
determine Charkiewicz's domicile. Indeed, by using the present tense to allege that Charkiewicz

3

"resides" in Brooklyn (Complaint ¶ 2) and then omitting any mention of the fact that the specified
site of the accident (id. ¶ 47) was Charkiewicz's residence at the time, the Complaint could
reasonably have lulled the defendants into the false belief that it was not worth even considering
whether Charkiewicz might be domiciled in any state other than New York.
To be sure, long before they moved to amend their Answer, the defendants received
information in discovery that should have begun to dispel the confusion that the Complaint
created. As a result, it is possible that the defendants could have filed their motion before discovery
was completed. However, I do not conclude that the defendants delayed the motion in bad faith or
that an earlier motion would have avoided all of the discovery inefficiencies that granting the
motion now will create. In that regard, I note that "[d]elay alone, in the absence of bad faith or
prejudice, is usually not a sufficient reason for denying a motion to amend." Go v. Rockefeller
Univ., 2008 WL 619039, at *4 (S.D.N.Y. Mar. 6, 2008) (collecting cases).
A court may deny leave to amend that is the product of "inordinate delay," but only if "no
satisfactory explanation is offered for the delay, and the amendment would prejudice other
parties." Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000) (internal citations omitted). I do
not think the delay here qualifies as inordinate, nor can I conclude, in light of the Complaint's
ambiguity concerning Charkiewicz's residence, that the defendants have no satisfactory
explanation for the delay. But even if I were to find both inordinate delay and no satisfactory
explanation for it, I would not deny leave to amend on the basis of undue delay because the delay
has not prejudiced Youngman. To the extent she has not sought information pertinent to litigating

4

the proffered defenses under New Jersey law, I can and will permit the parties to exchange
supplemental discovery. 2
Accordingly, I will not exercise my discretion to deny leave to amend on the ground that
the defendants engaged in undue delay before filing their motion. If the pertinent choice-of-law
rules prescribe applying the law of New Jersey to Youngman's claims, in the absence of any
cognizable prejudice, the court should not avoid doing so simply because the defendants did not
raise the issue earlier. I therefore proceed to the issue of whether the assertion of defenses under
New Jersey law would be futile because New York law is controlling.
B.

Futility: Choice-of-Law Analysis

In order to assess whether the defendants' proposed amendment would be futile, I must
engage in a choice-of-law analysis to determine whether any of the plaintiff's claims arise under
the substantive law of New Jersey, thereby making the assertion of affirmative defenses under that
state's law viable. Because this court has diversity jurisdiction over the action and is located in
New York, I apply the choice-of-law principles of New York. See Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941).

2

For purposes of analysis, I assume that the consequences of Youngman's decision to shape her
discovery strategy around an assumption that the defendants would never seek to assert any
defenses under New Jersey law is a cognizable form of prejudice. Such an assumption is not
necessarily warranted: Charkiewicz and his successor plaintiff Youngman (both of whom have
been represented throughout this case by the same counsel) had every reason to expect that once
the defendants learned all of the facts that support the proposition that Charkiewicz is domiciled in
New Jersey rather than New York, they would seek to assert defenses under the relatively more
defense-friendly law of that state. "For example," as Youngman observes in opposing the motion,
"in New York the retail seller of a defective product is held strictly liable when it causes injury,
while in New Jersey a retailer is not, barring some type of affirmative conduct other than the sale."
DE 46 at 60-61. It is therefore hardly obvious that a reasonable litigant in the plaintiff's position,
realizing the possibility that the defendants might ultimately learn of facts that would support the
assertion of defenses under New Jersey law, would deliberately avoid seeking discovery that
would be useful in litigating such defenses.
5

Under New York's choice-of-law rules, "the first step … of [the] inquiry is to determine
whether there is an 'actual conflict' between the laws invoked by the parties." Booking v. Gen. Star
Mgmt. Co., 254 F.3d 414, 419 (2d Cir. 2001). If such a conflict exists in a tort case, the court must
then apply an "interest analysis to determine which of two competing jurisdictions has the greater
interest in having its law applied in the litigation." Padula v. Lilarn Props. Corp., 84 N.Y.2d 519,
521 (1994) (discussing the choice-of-law rules originally formulated in Babcock v. Jackson, 12
N.Y.2d 473 (1963)). Performing that interest analysis requires the court to identify the type of
rules that are in conflict. If the conflict involves rules that regulate conduct, New York law usually
applies the law of the place of the tort ("lex loci delicti"). Allianz Ins. Co. v. Otero, 353 F. Supp. 2d
415, 423 (S.D.N.Y. 2004); see also Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999). On
the other hand, if the conflict involves rules that allocate loss – that is, rules that prohibit, assign, or
limit liability after the tort occurs – the court must apply the principles set forth in Neumeier v.
Kuehner, 31 N.Y.2d 121 (1972), which take into account the domicile of the parties, the conduct at
issue, and the purposes of the applicable substantive law. Padula, 84 N.Y.2d at 522; Lee, 166 F.3d
at 545.
An "actual conflict" between the laws of two states arises where there are "relevant
substantive differences that could have a significant impact on the outcome of the case." Fin. One
Pub. Co. Ltd. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 332 (2d Cir. 2005). Such
differences exist here both with respect to rules that regulate conduct and rules that allocate loss.
With respect to the former, for example,
New York courts permit separate claims for negligence, failure to warn and breach
of implied warranty to be brought in conjunction with product liability claims for
design and manufacturing defects, whereas the New Jersey Products Liability Act
(the 'NJPLA') … subsumes common law product liability claims into one statutory
cause of action for strict liability and does not allow separate negligence, breach of
6

warranty or failure to warn claims for injuries caused by an allegedly defective
product.
Rice v. Kawasaki Heavy Indus.¸ Ltd., 2008 WL 4646184, at *4 (E.D.N.Y. Oct. 17, 2008) (citing
N.J. Stat. Ann. § 2A:58C-1 to -11); see also Cacciola v. Selo Balers, Inc., 127 F. Supp. 2d 175, 184
(E.D.N.Y. 2001) (causes of action involving the duty and standard of care applicable to
manufacturers, i.e., negligence and strict products liability claims, are, for choice of law purposes,
conduct-regulating). Similarly, the two states' comparative negligence rules – which are
loss-allocating, O'Brien v. Marriot Int'l, Inc., 2006 WL 1806567, at *2 (E.D.N.Y. June 29, 2006) –
also diverge. New York has a "pure" comparative negligence regime, which reduces a plaintiff's
damages in proportion to the culpability of his own conduct but does not bar recovery where the
plaintiff's culpability exceeds the defendant's. Medina v. Delta Air Lines, Inc., 2011 WL 3625110,
at *6 (E.D.N.Y. Aug. 16, 2011) (citing N.Y. C.P.L.R. § 1411). New Jersey law, in contrast, "bars a
plaintiff from recovering on a negligence claim if the plaintiff's negligence was greater than the
combined negligence of the defendants against which recovery is sought." Aly v. Fed. Express,
Inc., 2008 WL 4378233, at *7 (D.N.J. Sept. 23, 2008) (citing N.J. Stat. Ann. § 2A:15-5.1).
The affirmative defenses the defendants seek to assert under New Jersey law thus implicate
"actual conflicts" with New York that require both types of interest analysis – one for
conduct-regulating rules and another for loss-allocating rules. I perform each analysis in turn
below. However, I do not perform a conflict analysis with respect to each individual claim.
Because I determine, for the reasons explained below, that New Jersey law governs both sets of
rules, such individualized analysis is unnecessary: in essence, to the extent there is any conflict
between the laws of New York and New Jersey, I conclude that the conflict must be resolved in
favor of New Jersey, and that therefore any related defense asserted under New Jersey law is

7

viable. Conversely, to the extent that the laws of New York and New Jersey are consistent, any
related defense asserted under New Jersey law must by definition be viable under New York law
as well.
1.

The Location of the Alleged Tort

As noted above, in choosing between the conflicting conduct-regulating rules of two states
in the context of a tort action, New York law applies the law of the place of the tort. Allianz Ins.
Co., 353 F. Supp. 2d at 423. There is no dispute that Charkiewicz's accident took place in Bayonne,
New Jersey. That should normally end the inquiry: the accident occurred in New Jersey, and so
New Jersey law should apply, thereby making an affirmative defense asserted under New Jersey
law viable. Youngman, however, does not let it rest there: she argues that the alleged tort
"occurred" in New York because that is where Charkiewicz purchased the saw, and consequently
where the last alleged "wrong" by the defendants took place. DE 46 at 41-46. Her argument is
contrary to both logic and applicable law.
As Youngman acknowledges in her supplemental memorandum of law, "when the
defendant's negligent conduct occurs in one jurisdiction and the plaintiff's injuries are suffered in
another, the place of the wrong is considered to be the place where the last event necessary to make
the actor liable occurred." DE 46 at 40 (quoting Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189,
195 (1985)); see also, e.g., Intellivision v. Microsoft Corp., 784 F. Supp. 2d 356, 369 (S.D.N.Y.
2011); Restatement (First) of Conflict of Laws § 377. After correctly articulating the rule as set
forth in Schultz, Youngman distorts its meaning by omitting the very next sentence from that
opinion: "Thus, the locus in this case is determined by where the plaintiffs' injuries occurred."

8

Schultz, 65 N.Y.2d at 195. The lesson of Shulz is thus diametrically opposed to the proposition for
which Youngman enlists its support.
Shulz is by no means an outlier. Virtually every pertinent case confirms that a tort "occurs"
for purposes of choice-of-law analysis at the location of the accident. See, e.g., Devore v. Pfizer,
Inc., 867 N.Y.S.2d 425, 428 (App. Div. 2008) ("The locus of a tort is generally defined as the place
of the injury."); Burnett v. Columbus McKinnon Corp., 887 N.Y.S.2d 405, 407 (App. Div. 2009)
("[T]he situs of the tort … is the place of the injury, rather than the location where the allegedly
defective product was manufactured"); Emslie v. Recreative Indus., Inc., 2010 WL 1840311, at *9
(W.D.N.Y. May 7, 2010) (holding that British law governed a products liability case involving an
ATV designed and manufactured in New York and involved in an accident occurring in England);
Rice, 2008 WL 4646184, at * 5 ("The … defendants' allegedly tortious conduct occurred in New
Jersey, because that is the jurisdiction in which the motorcycle accident … occurred, which is the
last event necessary to make [the] defendants potentially liable for the plaintiff's injuries."). 3
The prevalent interpretation of the rule is also far more logical than the one Youngman
advocates. The rule is that "the place of the wrong is considered to be the place where the last event
necessary to make the actor liable occurred." Schultz, 65 N.Y.2d at 195 (emphasis added).
3

The two other cases that Youngman discusses in her opposition brief are not to the contrary.
Youngman contends that in Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1 (2d Cir. 1996), a
case arising from the crash of a Pan-Am airplane in Lockerbie, Scotland in 1988, the court
declined to apply Scottish law on the ground that Scotland was not the jurisdiction in which
defendant airline's last "causative misconduct" took place. See DE 46 at 37-38. Not so: consistent
with the analysis set forth above, the court in Pescatore applied the law of Ohio because that was
where the plaintiff, an Ohio resident, had suffered the harm forming the basis of her wrongful
death claim. See 97 F.3d at 14-15. The other case on which Youngman relies, Mann v. Cooper Tire
Co., 761 N.Y.S.2d 635 (App. Div. 2003), simply did not use, interpret, or distinguish the rule of lex
loci delicti in deciding which law to apply to claims arising from a car accident that occurred in
Quebec. Instead, the court cited New York's numerous "significant contacts" with the case as a
reason to apply the law of New York. Whatever the merits of that ruling, it says nothing about
where a tort occurs within the meaning of New York law.
9

Youngman suggests that the last event necessary to render the defendants liable in this case was
the sale of the table saw in Staten Island. DE 46 at 36, 40. But that reading of the rule is
nonsensical: if Charkiewicz had never used the table saw after buying it in New York – that is, if
the sale truly had been the "last event" of any relevance to this case – he would never have been
injured and the defendants could not be held liable for anything at all. It was not until Charkiewicz
used the saw and injured himself that it became possible to hold the defendants liable to him for
their alleged negligence. I therefore conclude that the only permissible reading of New York's
choice-of-law rules is that the substantive law of New Jersey governs all conduct-regulating rules
at issue in this case.
3.

Charkiewicz's Domicile

A court choosing between the conflicting loss-allocation rules of two states must apply the
analysis set forth in Neumeier, by considering the parties' respective domiciles, the relevant
conduct, and the purposes of the applicable substantive law. See Padula, 84 N.Y.2d at 522; Lee,
166 F.3d at 545. Neumeier teaches that a court should apply one of three different approaches
based on the parties' domiciles:
The first applies when the parties are domiciled in the same state, in which case the
law of the state of the common domicile applies. The second rule applies when the
parties are domiciled in different states and the law of each state is favorable to its
respective litigant. In that case, the law of the place where the tort occurred applies.
The third Neumeier rule applies to all other split-domicile scenarios[,] [where] [t]he
law of the state where the tort occurred presumptively controls, except where
displacing the law of the place of the tort will advance the relevant substantive law
purposes without impairing the smooth working of the multi-state system or
producing great uncertainty for litigants.
Antaeus Enters., Inc. v. SD-Barn Real Estate, LLC, 480 F. Supp. 2d 734, 742-43 (S.D.N.Y. 2007)
(internal alterations and citations omitted); accord Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66,
73-74 (1993). Courts occasionally use different language to describe the scope of circumstances in
10

which the third approach under Neumeier applies. Thus, some courts have applied the third
approach where "the tort did not occur in the domicile of either party." O'Brien, 2006 WL
1806567, at *4; see also, e.g., Van Dyke v. Columbia Mach., Inc., 246 F. Supp. 2d 191, 194
(W.D.N.Y. 2003); Wong v. Marriott Hotel Servs., Inc., 2009 WL 5538644, at *3 (E.D.N.Y. Dec.
18, 2009). Others simply describe the third approach as a "fall-back" that "applies in all other
situations" where neither the first nor the second rule fits. Greene-Wotton v. Fiduciary Trust Co.
Int'l, 324 F. Supp. 2d 385, 391 (S.D.N.Y. 2003); see also, e.g., Grasso v. Grasso, 2010 WL
3806388, at * 11 (N.D.N.Y. Sept. 22, 2010) ("[T]he third Neumeier rule … applies where the
parties are domiciled in different states, but where local law does not favor the respective
domicile."); Antaeus Enters., Inc., 480 F. Supp. 2d at 743; Stichting Ter Behartiging Van de
Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt Int'l B.V. v. Schreiber, 407 F.3d
34, 50 (2d Cir. 2005).
The first approach plainly does not apply here, as the parties are not all domiciled in the
same state. 4 Under either of the remaining approaches, the starting point is an assumption that the
case is governed by the law of the place of the tort – which I determine to be New Jersey, as
explained above. 5 If the second approach is most apt, that is also the end of the analysis: the court

4

Lowe's is domiciled in North Carolina and Bosch in Delaware. Complaint ¶¶ 3, 7, 11, 16; see
Carroll v. LeBoeuf, Lamb, Green & MacRae, LLP, 392 F. Supp. 2d 621, 629 n.47 (S.D.N.Y. 2005)
(corporation is domiciled in the state of its principal place of business). No party contends that the
law of either of those states applies to this action, DE 50 (hearing transcript) at 7-8, and I therefore
need not consider those possibilities in performing the choice-of-law analysis. See Luizzi v. Pro
Transport, Inc., 2010 WL 3023928, at *12 (E.D.N.Y. Aug. 2, 2010).
5

Because, for reasons explained below, I conclude that Charkiewicz was domiciled in New Jersey
at the time of the accident, I need not decide whether the second or third approach is most
appropriate under Neumeier, because both approaches result in the application of New Jersey law
and thus a conclusion that the proposed affirmative defenses are viable. The characterization in
Antaeus Enterprises, Inc. of the scope of circumstances in which the third approach is most
appropriate arguably excludes some scenarios, including the circumstances of this case. Other
11

should simply apply the law of New Jersey even if Charkiewicz was domiciled in New York at the
time of the accident. If the third approach is applicable, the court should apply the substantive law
of New York rather than that of New Jersey only if doing so "will advance the relevant substantive
law purposes without impairing the smooth working of the multi-state system or producing great
uncertainty for litigants." McDuffie v. Wilner, 415 F. Supp. 2d 412, 422 (S.D.N.Y. 2006) (citations
omitted).
It is only with respect to the latter inquiry that Charkiewicz's domicile will make a
difference. If Charkiewicz is not a New York domiciliary – that is, if New York's only meaningful
connection with the case is the fact that the table saw that caused the injury was sold here – then
displacing New Jersey's law in favor of New York's will do nothing to advance the relevant
substantive law purposes. See, e.g., id. at 422-23 ("New York has no interest in the loss allocation
in this case since no party is domiciled in New York."). Thus, if Charkiewicz was domiciled in
New Jersey at the time of the accident, this court should apply the loss-allocation rules of New
Jersey law rather than those of New York. For the reasons set forth below, I conclude that
Charkiewicz was indeed domiciled in New Jersey when he was injured, and that therefore New
Jersey law applies.
New York law distinguishes between residence and domicile. Smith v. Soros, 2003 WL
22097990, at *5 (S.D.N.Y. Sept. 5, 2003) (citing Antone v. Gen. Motors Corp., 64 N.Y.2d 20, 29

courts, however, have made it clear that the third approach applies in all cases where the
circumstances do not call for the first or second approach. See, e.g., Schreiber, 407 F.3d at 50;
Grasso, 2010 WL 3806388, at * 11; Greene-Wotton, 324 F. Supp. 2d at 391. Because none of the
defendants is domiciled in New Jersey, the fact that all parties appear to agree that this case arises
under either the law of New York or New Jersey (but not the law of either of the states in which the
defendants are domiciled) appears to preclude the second approach. The third approach therefore
seems to be more applicable than the second, but I would reach the same result under either
approach.
12

(1984)). "[R]esidence requires only 'a significant connection with some locality in the State as the
result of living there for some length of time during the course of a year.'" Id. (quoting Antone, 64
N.Y.2d at 30). Domicile, on the other hand, "requires both a presence in the state and evidence of
intent to make the state a permanent home." Id. (citing Rawstorne v. Maguire, 192 N.E. 294,
295-96 (N.Y. 1934)). New York law further makes clear that a party can have only one domicile at
a time, Hatfill v. Foster, 415 F. Supp. 2d 353, 368 (S.D.N.Y. 2006), and that the pertinent time for
purposes of choice-of-law analysis is the time of the tort rather than any later time. See Gutierrez v.
Swaim Inc., 1994 WL 62843, at *2 (S.D.N.Y. Feb. 23, 1994) (citing, inter alia, Gore v. Northeast
Airlines, Inc., 373 F.2d 717, 722-24 (2d Cir. 1967)). 6 The party alleging domicile has the burden
to establish that allegation by clear and convincing evidence. See Bank of India v. Subramanian,
2007 WL 1424668, at *3 (S.D.N.Y. May 15, 2007) (citing, inter alia, Katz v. Goodyear Tire &
Rubber Co., 737 F. 2d 238, 243-44 (2d Cir. 1984)). With that standard in mind, I review the
pertinent evidence below.
I start with facts that support the proposition that Charkiewicz was domiciled in New York.
At all relevant times Charkiewicz maintained an apartment on Bethel Loop in Brooklyn, New
York (see DE 46 at 3, 16), he had a New York driver's license (DE 47-10 at 9-10) as well as a
United States passport issued in 2007 that listed his Brooklyn address (DE 47-10 at 27), and he was
registered to vote in New York (see DE 46 at 17, 24). 7 The record contains significantly more

6

For the same reason that I conclude the tort occurred, for purposes of choice-of-law analysis, at
the site of the injury in New Jersey, I likewise conclude that the tort occurred at the time of
Charkiewicz's injury, rather than at the time he purchased the table saw.
7

Youngman has not submitted documentary evidence of Charkiewicz's ownership or lease of the
Bethel Loop apartment nor of his voter registration; however, as Youngman's attorney has
included these assertions in a brief filed pursuant to Federal Rule of Civil Procedure 11, see DE 46
at 3, 16-17, 24, I take it to be true for the purposes of deciding this motion. The record also includes
additional exhibits that post-date Charkiewicz's accident that show additional ties to New York –
13

information, however, concerning Charkiewicz's connection to New Jersey at the time of his
accident.
Charkiewicz began renting the Brooklyn apartment in approximately 1989. He married his
wife Dorota in 1996, and the two continued to reside in the Brooklyn apartment for several years. 8
In 2003, they purchased the three-family residence in Bayonne, New Jersey where Charkiewicz
later sustained the injury at issue in this litigation. Although the couple used the Bayonne residence
as a rental property, they bought it primarily to enable them to send their children to school in New
Jersey, which they believed to have a school system superior to the one available to them in their
Brooklyn neighborhood. Consistent with that intent, in 2007 – when the Charkiewiczes' oldest son,
Sebastian, was old enough to attend school, Dorota and the couple's two children moved into one
of the units in the Bayonne residence, and Sebastian began attending a New Jersey public school.
Charkiewicz himself, however, did not fully make the move to Bayonne with his family at that
time. Instead, he split his time between the Brooklyn apartment and the Bayonne residence. He
typically spent most of the work week in Brooklyn and spent weekends (as well as irregular
weeknights) in Bayonne with his family. DE 43-8 ("Charkiewicz Tr.") at 15, 17-18, 45, 54, 214,
219; DE 43-9 ("Dorota Tr.") at 6, 8-9, 22-23, 24-25, 27.
In the absence of any further proof, I would conclude that the defendants had failed to
establish by clear and convincing evidence that Charkiewicz was a New Jersey domiciliary at the
time of his accident. However, the record also includes evidence that tips the balance in the

including an April 2012 summons for jury duty in Brooklyn (DE 46 at 4, ¶ 5; DE 47-10 at 12) and
tax documents for tax year 2010 (DE 46 at 4-5, ¶¶ 8, 10; DE 47-10 at 19, 23) – but I disregard them
because they are irrelevant to the question of where Charkiewicz was domiciled on February 28,
2009. See Gutierrez, 1994 WL 62843, at *2.
8

I refer to Mrs. Charkiewicz by her first name as a convenient shorthand because she shares a first
initial and last name with her husband; I intend no disrespect.
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defendants' favor: namely, that in submitting his tax returns and seeking bankruptcy protection,
Charkiewicz consistently made statements under penalty of perjury that characterized New Jersey
as his home and disavowed having moved there any later than 2007. In their federal personal
income tax returns for 2007, 2008, and 2009, the Charkiewiczes listed the Bayonne residence as
their "home address." DE 43-11 at 34-72. In each of those years, the Charkiewiczes also filed
full-year resident tax returns with the state of New Jersey, DE 43-16, and "non-resident/part-year
resident" tax returns with the state of New York, DE 43-15 at 2-51.
In April 2010, the Charkiewiczes filed a petition for bankruptcy protection in the District of
New Jersey. In their petition, the Charkiewiczes listed the Bayonne residence as their home
address. By itself, that fact is not relevant, as it occurred after the alleged tort at issue here. What is
relevant is that in addition to describing New Jersey as their home state at the time of the petition,
the Charkiewiczes also indicated that it had been their home for the preceding three years.
Specifically, they checked the box corresponding to the answer "none" in response to the
following request for information: "If the debtor has moved within the three years immediately
preceding the commencement of this case, list all premises which the debtor occupied during that
period and vacated prior to the commencement of this case. If a joint petition is filed, report also
any separate address of either spouse." DE 43-10 (Bankruptcy Petition) at 42, question number 15.
By making repeated statements to the governments of three jurisdictions, each under
penalty of perjury, describing New Jersey as his home and full time residence, and by disavowing
having had any other home during the period from at least April 2007 through the date of the
accident at issue here, Charkiewicz clearly and convincingly demonstrated his "presence in the
state and evidence of intent to make the state a permanent home." Smith, 2003 WL 22097990, at

15

*5. Not only does such proof suffice to satisfy the defendants' evidentiary burden, it also estops
Charkiewicz from arguing to the contrary. "A party to a litigation may not take a position contrary
to a position taken in an income tax return." Am. Mfrs. Mut. Ins. Co. v. Payton Lane Nursing
Home, Inc., 704 F. Supp. 2d 177, 193 (E.D.N.Y. 2010) (quoting Mahoney–Buntzman v. Buntzman,
12 N.Y.3d 415, 422 (2009)); see also Armstrong v. Collins, 2010 WL 1141158, at *31 (S.D.N.Y.
Mar. 24, 2010) (collecting cases).
I therefore conclude that at the time of the accident at issue in this litigation, Charkiewicz
was domiciled in New Jersey. As a result, pursuant to the principles articulated in Neumeier, New
York's choice-of-law rules compel the conclusion that the substantive law of New Jersey applies to
all loss-allocating rules implicated by the claims in this case. The same is true with respect to all
conduct-regulating rules because the accident occurred, for purposes of New York's choice-of-law
rules, in New Jersey. Accordingly, the substantive law of New Jersey governs all claims and
defenses in this action, and there is thus no basis to find the defendants' proposed pleadings futile
simply because they assert affirmative defenses under New Jersey law.
III.

Conclusion
For the reasons set forth above, I grant the defendants' motion to amend.
SO ORDERED.

Dated: Brooklyn, New York
February 11, 2013
/s/
JAMES ORENSTEIN
U.S. Magistrate Judge

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