Stroud Productions & Enterprises, Inc. v. BMG Music

123 A.D.3d 598, 999 N.Y.S.2d 60

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2014
• Docket: 13801 601798/05
• Status: Published

Opinion

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered October 13, 2011, which, to the extent appealed from, granted defendant Steven Ames Brown’s motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.

Plaintiffs’ claims for conversion and tortious interference with contract against Brown relating to unpaid producer royalties allegedly due to plaintiffs since 1992 were properly dismissed as time-barred. Plaintiffs may not argue that Brown should be equitably estopped from raising the statute of limitations defense since the issue was not raised before the motion court (see Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 276 [1988]). In any event, the argument fails because plaintiffs rely on the same acts that form the basis of their underlying claims. It is “fundamental to the application of equitable estoppel for plaintiffs to establish that subsequent and specific actions by defendants somehow kept them from timely bringing suit” (see Zumpano v Quinn, 6 NY3d 666, 674 [2006]).

We have considered plaintiffs’ remaining contentions and find them unavailing.

Concur — Mazzarelli, J.P., Andrias, ManzanetDaniels, Feinman and Gische, JJ.