· Toll agreements between co-defendants are rarer, but still occur with some regularity. In some States, co-accused are required to file counter-appeals while the case is pending and before trial. For strategic reasons, defendants may opt for a toll agreement to give them additional time to assess the strength of a claimant`s claims. In Deutsche Bank National Trust Co. v. Flagstar Capital Markets Corp., the Court of Appeal considered a provision clause that provided that certain proceedings against a seller of mortgage securities are only brought when the buyer has asked the seller to comply with the contract of sale. 32 N.Y.3d 139, 144-45 (2018). In addition, a toll agreement identifies the following: party information, party signatures, departure and end date, intention not to bring any action, disclaimer, neutrality statement, waiver of time-based defenses, and date of renewal agreement. The limitation period is not intended for that purpose and shall not be regarded, for any purpose, as a restriction or alteration of a defence, except for a statute of limitations that [the defendant] has, could have or would have had in the absence of that agreement. This agreement does not waive or release any limitation defence that might have been invoked prior to the date of the toll period. At the end of the toll period, [the defendant] will have all the defence facilities at its disposal, as it had done on the first day of the toll period. You are undoubtedly starting to see how it happened. The parties continued to extend the toll agreement until the grievor finally filed a complaint on April 13, 2018 in the Northern District of California.
Was the complaint time-barred? The answer was clearly yes, because when the applicant became a party to the toll agreement, her complaint was already inoperative. Even if the agreement to extend the limitation period is concluded after the origin of the claim, it is enforceable in respect of a right for infringement only if the agreement complies with the General Debt Act § 17-103. This section provides that an agreement to extend the limitation period is applicable only if it is concluded after the right arose and only if the agreement does not extend the limitation period by more than six years from the date of conclusion of the contract. Id. at 153; see also N.Y. Gen.C is obliging. Law § 17-103. Id. at *2 (highlighted added). In the end, the text put forward becomes important because the applicants` lawyer concluded the toll contract on 9 August 2013, but did not transmit the applicant`s name until 3 February 2014, more than two years according to the applicant`s procedure (and therefore started the toll). Id.
at *2. Last year, the New York Court of Appeals ruled that the New York Credit and Ontario Act, Canada`s shorter statute of limitations, applied to the dispute between the parties, although the agreement contained a broad legal choice provision that states it would be “enforced” in accordance with New York law. . . .