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Scott v. Greenberg

United States District Court, E.D. New York

March 31, 2017

DAPHNEY SCOTT, Plaintiff,
v.
E. HOPE GREENBERG, CAPITOL DISCOUNT CORP. and MYLAH FURNITURE Inc. also known as MAYLAH FURNITURE, Defendants.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, United States District Judge.

         Plaintiff Daphney Scott commenced this action on September 23, 2015, against Defendants E. Hope Greenberg, Capitol Discount Corporation (“Capitol Discount”) and Mylah Furniture Inc., also known as Maylah Furniture (“Mylah Furniture”), alleging misleading and abusive business and debt collection practices in violation of the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. § 1692 et seq., New York Judiciary Law section 487, New York General Business Law section 349, and New York Personal Property Law section 402. (Compl., Docket Entry No. 1.) Plaintiff's allegations arise from a retail installment contract Plaintiff executed with Mylah Furniture that was later assigned to and enforced by Greenberg, an attorney, through a collection proceeding on behalf of Capitol Discount. In an Amended Complaint filed on October 8, 2015, Plaintiff alleges that Greenberg violated the FDCPA and Judiciary Law section 487, that each Defendant violated General Business Law section 349, and that Mylah Furniture and Capitol Discount violated Personal Property Law section 402. (Am. Compl. ¶¶ 69-106, Docket Entry No. 4.)

         Defendants move to dismiss the Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Greenberg Mot. to Dismiss, Docket Entry No. 33; Capitol Discount Mot. to Dismiss, Docket Entry No. 34; Mylah Furniture Mot. to Dismiss, Docket Entry No. 37.) For the reasons discussed below, the Court (1) grants in part and denies in part Greenberg's motion to dismiss Plaintiff's FDCPA claims, (2) denies Greenberg's motion to dismiss Plaintiff's state law claims, and (3) grants Mylah Furniture's and Capitol Discount's motions to dismiss. Plaintiff is granted leave to amend her General Business Law section 349 and Personal Property Law section 402(4) claims against Mylah Furniture and Capitol Discount.

         I. Background

         a. Contract execution

         On or around September 25, 2012, Plaintiff visited Mylah Furniture to purchase several items of furniture.[1] (Am. Compl. ¶ 12.) A store clerk at Mylah Furniture told Plaintiff that she could not purchase items on lay-a-way but that a furniture purchase could be financed. (Id. ¶ 12.) Plaintiff gave the clerk a few recent paystubs but did not authorize the clerk to check her credit. (Id. ¶ 13.) After a short time, the clerk informed Plaintiff that she had been denied financing from several financing companies. (Id.) Plaintiff identified the furniture items she wished to purchase and planned to return later in the day to purchase the items, but the clerk told Plaintiff that she could sign a document before leaving so that the clerk could continue to search for financing for Plaintiff's purchase. (Id. ¶ 14.) Plaintiff signed the document, which contained “blank portions.” (Id. ¶ 15.) Plaintiff asked why the document contained “blank portions, ” and the clerk told her that the blanks had no significance and would be filled in after financing was secured for the purchase. (Id. ¶ 16.) The clerk assured Plaintiff that her signature on the document only authorized him to search for financing. (Id. ¶ 16.) Plaintiff told the clerk that she could not afford a high interest rate or high monthly payments and that if he could not find an affordable deal, she did not wish to purchase the furniture on credit. (Id. ¶ 17.) The clerk assured Plaintiff that he would get her a “good deal.” (Id.) Before leaving the store, Plaintiff paid a $50 deposit toward the total $3050 cost of the furniture. (Id. ¶ 18.) Several days later, the furniture was delivered to Plaintiff's home. (Id. ¶ 19.)

         In or around October of 2012, Plaintiff received a copy of the document she signed at Mylah Furniture with the blank portions completed. (Id. ¶ 20.) The document was titled “Security Agreement - Retail Installment Contract” (the “Contract”). (Id. ¶ 21.) The Contract provided for a 24.9% interest rate and required Plaintiff to make thirty-six monthly payments of $119.18 beginning on October 25, 2012. (Id. ¶¶ 22, 27.) The Contract did not provide that Plaintiff was responsible for paying attorneys' fees in the event that there was an action to enforce the Contract.[2] (Id. ¶ 24.) Mylah Furniture was listed as the seller. (Id. ¶ 21.) The Contract included several notices, including that the Contract “may” be assigned to Capitol Discount and that the holder of the Contract is subject to all of the claims and defenses that the debtor could assert against the seller of the goods obtained pursuant to the Contract. (Id. ¶ 27.) After reviewing the Contract, Plaintiff called Mylah Furniture and asked if she could return the furniture because she did not agree with the high interest rate or high monthly payments. (Id. ¶ 29.) Plaintiff was told that she was bound by the terms of the Contract regardless of whether she returned the furniture. (Id.) Plaintiff made payments pursuant to the Contract until July of 2013. (Id. ¶ 32.) After Plaintiff ceased making payments, Capitol Discount began to call Plaintiff's cellular and home telephones approximately every other day. (Id.)

         b. Collection action

         On January 7, 2014, Greenberg, representing Capitol Discount, initiated an action against Plaintiff in Civil Court, Kings County to collect the remaining debt owed pursuant to the Contract.[3] (Id. ¶ 33.) Plaintiff was never served with the summons and complaint. (Id. ¶ 36.) Plaintiff became aware of the collection action in or around February of 2014, when she received a summons in the mail from Greenberg on behalf of Capitol Discount, indicating that Capitol Discount was seeking a judgment of $2561.65 plus interest from July 5, 2013, as well as the costs associated with bringing the action. (Id. ¶¶ 35, 38.) The summons did not list a date for Plaintiff to appear in court. (Id. ¶ 40.)

         Around the time Plaintiff received the summons, Plaintiff called Greenberg using the telephone number listed on the summons to clarify the information included in the summons.[4](Id. ¶ 38.) Plaintiff spoke with a “Mr. Russel, ” whom Plaintiff understood to be acting on Greenberg's behalf and to have the authority to resolve Plaintiff's debt. (Id. ¶¶ 38-39, 44.) Russel explained that Plaintiff owed an additional $800 in interest and fees that was not indicated on the face of the summons. (Id. ¶¶ 42-43.) Plaintiff and Russel negotiated a settlement in which Plaintiff agreed to pay the amount listed on the summons, totaling $2561.65, in monthly payments of between $100 and $150. (Id. ¶ 44.) Russel told Plaintiff that she “did not need to go to court as long as she continued to pay Capitol Discount.” (Id. ¶ 41.) Plaintiff began to make payments to Capitol Discount, paying $100 in January and February of 2014, $500 in March of 2014 and $150 in April of 2014. (Id. ¶ 47.) In reliance on Russel's statements, Plaintiff did not appear in court or file an answer in the collection action. (Id. ¶ 46.)

         On April 28, 2014, Greenberg obtained a default judgment against Plaintiff in the amount of $3311.88. (Id. ¶ 49.) The default judgment did not account for the $850 in payments Plaintiff made to Capitol Discount between January and April of 2014. (Id. ¶ 50.) According to the affidavit of service submitted by Greenberg in support of the default judgment, the summons and complaint in the collection action were served on February 12, 2014 at 4:41 PM on “Jane Doe, ” who was described as “40 years old, around 5 [feet and] 6 [inches], 180 [pounds], with black hair and skin.” (Id. ¶ 53.) Plaintiff alleges that the description “does not meet the description of [Plaintiff] or anyone who lived with [Plaintiff] at the time of [the] alleged service.” (Id. ¶¶ 53- 54.)

         Plaintiff first learned of the default judgment in February of 2015, when Plaintiff's employer received an income execution. (Id. ¶¶ 48, 56, 58-59.) By letter dated February 23, 2015, Capitol Discount notified Plaintiff that $160 of the amount Plaintiff owed was for “legal costs.” (Id. ¶ 57.) Plaintiff continued to make payments to Capitol Discount after learning of the default judgment, including $100 payments in March, April and May of 2015 and a $500 payment in April of 2015. (Id. ¶ 61.)

         On June 16, 2015, Plaintiff moved to vacate the default judgment in the collection action. (Id. ¶ 62.) Plaintiff argued that the judgment should be vacated and dismissed because she was not properly served with process and the court lacked personal jurisdiction; or alternatively, that the judgment should be vacated and the action restored to the trial calendar because she had a reasonable excuse for not answering the complaint and had meritorious defenses to the collection action. (Id. ¶ 62.) On June 30, 2015, the Civil Court, Kings County granted Plaintiff's request for relief from the default judgment and dismissed the case. (Id. ¶ 64.)

         II. Discussion

         a. Standard of review

         In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor.” Concord Assocs., L.P. v. Entm't Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. While “the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Deswal v. U.S. Nat. Ass'n, 603 F. App'x 22, 23-24 (2d Cir. 2015) (quoting Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014)).

         b. FDCPA claims - Greenberg

         “Congress enacted the FDCPA ‘to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.'” Vincent v. The Money Store, 736 F.3d 88, 96 (2d Cir. 2013) (quoting 15 U.S.C. § 1692e); see also Benzemann v. Citibank, N.A., 806 F.3d 98, 100 (2d Cir. 2015) (“The purpose of the FDCPA is to ‘eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.'” (quoting Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002))). “To accomplish these goals, the FDCPA creates a private right of action for debtors who have been harmed by abusive debt collection practices.” Benzemann, 806 F.3d at 100 (citing 15 U.S.C. § 1692k).

         To establish a violation under the FDCPA, “(1) the plaintiff must be a ‘consumer' who allegedly owes the debt or a person who has been the object of efforts to collect a consumer debt, (2) the defendant collecting the debt [must be] considered a ‘debt collector, ' and (3) the defendant [must ha[ve] engaged in an[] act or omission in violation of FDCPA requirements.” Polanco v. NCO Portfolio Mgmt., Inc. (Polanco III), 132 F.Supp.3d 567, 578 (S.D.N.Y. 2015) (quoting Plummer v. Atl. Credit & Fin., Inc., 66 F.Supp.3d 484, 488 (S.D.N.Y. 2014)); see also Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 91 (2d Cir. 2008) (“[The FDCPA] grants a private right of action to a consumer who receives a communication that violates the Act.”).

         Greenberg argues that all of Plaintiff's FDCPA claims are time-barred and certain allegations also fail to state a claim. (Greenberg Mem. of Law in Supp. of Mot. to Dismiss, (“Greenberg Mem.”) 9, 16, Docket Entry No. 31-1.) Plaintiff argues that one of her FDCPA claims is timely and also argues that the statute of limitations on her remaining untimely claims should be equitably tolled. (Pl. Opp'n to Defs. Mots. to Dismiss (“Pl. Opp'n”) 11-14, Docket Entry No. 40.) Plaintiff also asserts that she adequately states a claim for relief under sections 1692d, 1692e and 1692f of the FDCPA.

         i. Plaintiff's FDCPA claims are untimely

         Plaintiff concedes that the majority of her FDCPA claims are untimely[5] but argues that she alleges one timely FDCPA violation because, after Greenberg made the false representation to Plaintiff that she should not appear in court, Greenberg sent Plaintiff's employer the income execution in or around February of 2015. (Am. Compl. ¶¶ 58, 70.c; Pl. Opp'n 11 (identifying “at least one FDCPA violation that occurred within the year prior to filing”).) Greenberg argues that the allegedly timely claim is time-barred because Plaintiff cannot “revive the statute of limitations by complaining about a later act in furtherance of the time-barred act with no separate violation of the FDCPA, ” and the action Plaintiff complained of “does not constitute a violation of the FDCPA.” (Greenberg Mem. 9-10.) Because Plaintiff concedes that all but one of her FDCPA claims are time-barred, the Court only considers the timeliness of the single claim that Greenberg unlawfully enforced the default judgment by sending the income execution after falsely representing to Plaintiff that she did not need to appear in court.[6]

         Claims under the FDCPA must be commenced “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k; see Benzemann, 806 F.3d at 99 (“[T]he [FDCPA] statute of limitations . . . provides that FDCPA plaintiffs must file suit ‘within one year from the date on which the violation occurs.'” (quoting 15 U.S.C. § 1692k(d))). A cause of action accrues under the FDCPA when “injury occurs” and “the injured party has the right to bring suit for all of the damages . . . caused by the defendant's acts.” Benzemann, 806 F.3d at 101 (quoting Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980)). In the case of multiple allegations of FDCPA violations, some occurring before and others occurring after the statute of limitations has expired, a court must determine if the non-time-barred allegations are new and independent FDCPA violations. See, e.g., Puglisi v. Debt Recovery Sols., LLC, No. 08-CV-5024, 2010 WL 376628, at *3 (E.D.N.Y. Jan. 26, 2010) (allowing claims based on “separate, discrete violations” that were within the statute of limitations period to go forward but barring claims for allegations that occurred outside of the statute of limitations period); Ehrich v. RJM Acquisitions, LLC, No. 09-CV-2696, 2009 WL 4545179, at *2 (E.D.N.Y. Dec. 4, 2009) (“[S]eparate communications that violate the FDCPA can create separate causes of action.”). If a plaintiff could rely on a time-barred act to restart the statute of limitations, a plaintiff's “cause of action could be kept alive indefinitely because each new communication would start a fresh statute of limitations.” Sierra v. Foster & Garbus, 48 F.Supp.2d 393, 395 (S.D.N.Y. 1999) (finding that the filing of a summons and complaint seeking “unfair and illegal” attorneys' fees did not revive the statute of limitations on the claim that the prior pursuit of attorneys' fees outside of litigation violated the FDCPA); see also Oliver v. U.S. Bancorp, No. 14-CV-8948, 2015 WL 4111908, at *2 (S.D.N.Y. July 8, 2015) (finding that untimely FDCPA claim based on false representations made in the complaint in a foreclosure action was not revived by subsequent identical false representations in a state court filing); DeJesus v. BAC Home Loans Servicing, LP, No. 13-CV-2864, 2014 WL 4804999, at *4-5 (E.D.N.Y. Sept. 26, 2014) (noting that “[t]he established law in this Circuit does not support” extension of the FDCPA statute of limitations where “plaintiffs have not alleged any specific violations by defendants within the one-year statutory period”).

         Here, Plaintiff filed suit on September 23, 2015. (See Compl.) Thus, only acts that accrued on or after September 23, 2014 are timely. Although Plaintiff's claim is predicated on an income execution that took place in February of 2015, Plaintiff is alleging that because Russel, on behalf of Greenberg, lied to her in February of 2014, Plaintiff did not appear in the action, and therefore the subsequent enforcement of the default judgment through the income execution violates the FDCPA. (Am. Compl. ¶ 70.c.) As pled, Plaintiff does not allege that the income execution, in and of itself, or Greenberg's utilization of judgment collection remedies violates the FDCPA. Cf. McCrobie v. Palisades Acquisition XVI, LLC, No. 15-CV-18, 2016 WL 1178584, at *4 (W.D.N.Y. Mar. 25, 2016) (finding that an FDCPA claim based on sending an income execution without the proper assignment of interest did not accrue until the income execution was either signed or received by the plaintiff because the basis of the plaintiff's cause of action was that “defendants pursued state law post-judgment remedies to enforce the default judgment without authorization to do so”), reversed on other grounds, 664 F. App'x 81 (2d Cir. 2016).

         Rather, the only alleged FDCPA violation as to the income execution - the misrepresentation by Russel - occurred outside of the statute of limitations and, accordingly, Plaintiff's claim is not timely. See Schuh v. Druckman & Sinel, 602 F.Supp.2d 454, 466 (S.D.N.Y. 2009) (noting in dicta that a plaintiff may not “revive the statute of limitations period by complaining about a later act in furtherance of the time-barred act . . . [where] there was no separate violation of the FDCPA”); see also Oliver, 2015 WL 4111908, at *3 (finding that a submission for fraudulently sought fees does not “restart the statute of limitations” on a FDCPA claim where the request for fraudulently sought fees initially occurred outside of the statute of limitations and no new misrepresentation was alleged in the court submission seeking the same fees); Calka v. Kucker, Kraus & Bruh, LLP, No. 98-CV-0990, 1998 WL 437151, at *3 (S.D.N.Y. Aug. 3, 1998) (refusing to recognize the filing of an amended complaint and motion for summary judgment as new FDCPA violations where neither contained “any new misrepresentations of the amount due not in the original complaint”).

         Stated differently, Plaintiff cannot rely on distinct dates of accrual[7] for the same unrepeated fraudulent conduct - the misrepresentation by Russel - in order to bring the otherwise time-barred false statement within the statute of limitations by arguing that the fraud carries through to the income execution. Cf. Ellis v. Gen. Revenue Corp., 274 F.R.D. 53, 58 (D. Conn. 2011) (explaining that multiple letters sent within the statute of limitations period all including the same false information were sufficiently “new, discrete misrepresentations” because “[a]ny one of these duplicate letters, if signed and returned by [the plaintiffs], would have memorialized an agreement based on allegedly false information”); Coble v. Cohen & Slamowitz, LLP, 824 F.Supp.2d 568, 571 (S.D.N.Y. 2011) (finding a timely FDCPA claim regarding a sewer service scheme because “defendants have continued to affirmatively assert the veracity of the [ ] affidavits in the course of enforcing the default judgments”).

         To the extent that Plaintiff is arguing that enforcement of a fraudulently obtained default judgment is an independent FDCPA violation, the authority on which Plaintiff relies does not support her argument. Plaintiff primarily relies on the adjudication of a motion for judgment on the pleadings in Polanco v. NCO Portfolio Management., Inc. (Polanco I), 930 F.Supp.2d 547, 552 (S.D.N.Y. 2013). (Pl. Opp'n 11-12, 13.) However, Polanco I does not hold that enforcement of a fraudulently obtained default judgment is an independent FDCPA violation and it is factually distinguishable.

         Polanco I involved allegations that the defendant pursued a collection lawsuit without serving the plaintiff with process, subsequently obtained default judgment, garnished the plaintiff's wages in satisfaction of the judgment and then failed to return the garnished wages pursuant to a court order. Polanco I, 930 F.Supp.2d at 548-49. Based on these facts, the court considered the defendant's motion for judgment on the pleadings, which argued that the FDCPA does not apply to a debt collector's refusal to comply with a court order. Id. The court articulated that the “crux of [the plaintiff's] claim is that [the defendant] fraudulently obtained [a] default judgment and then failed to comply with two [c]ourt [o]rders to return those improperly obtained funds.” Id. at 549. The central focus of the court's analysis was whether, by failing to comply with a court order, the defendant had engaged in conduct “in connection with the collection of a consumer debt.” Id. at 551. The court concluded that the “[d]efendant's alleged actions of fraudulently using the court's power to secure a default judgment and subsequent garnishment and then refusing to promptly obey the court's orders to return the money, falls within the FDCPA's broad purpose to protect consumers from such alleged abusive and unfair tactics.” Id. at 552.

         Polanco I did not address whether lawful enforcement of a fraudulently obtained default judgment is itself an FDCPA violation independent of the fraudulently obtained default judgment. In addition, here there is no question that the actions Greenberg took were in connection with a consumer debt, and, unlike in Polanco I, where the defendant refused to return garnished wages as ordered by a court, there are no allegations that the income execution or its execution, in and of itself, violated a court order.[8]

         Accordingly, Plaintiff has failed to show that enforcement of the default judgment through the income execution violates the FDCPA[9] and, therefore, Plaintiff's FDCPA claim is untimely. Because the Court finds that this claim is untimely and Plaintiff concedes that all of her other FDCPA claims are untimely, the Court next determines whether the statute of limitations for Plaintiff's claims should be tolled.

         ii. Plaintiff is entitled to equitable tolling

         Plaintiff argues that the statute of limitations on her untimely FDCPA claims should be equitably tolled because Greenberg fraudulently concealed Plaintiff's cause of action. (Pl. Opp'n 13-14.) Greenberg argues that equitable tolling is inappropriate because Plaintiff was aware of the commencement of the collection action as early as February of 2014, unreasonably relied upon Russel's statements, and did not exercise due diligence. (Greenberg Reply Mem. 5-7, Docket Entry No. 33.)

         The Second Circuit has not directly addressed whether FDCPA claims can be equitably tolled, but district courts have applied the equitable tolling doctrine in FDCPA cases. See, e.g., Vincent v. Money Store, 304 F.R.D. 446, 456 n.4 (S.D.N.Y. 2015); Coble, 824 F.Supp.2d at 571; Sykes v. Mel Harris and Assocs. LLC, 757 F.Supp.2d 413, 422 (S.D.N.Y. 2010). Where the decision of whether to toll a plaintiff's claims depends on “fact-specific” issues, it should not be resolved on a motion to dismiss. Mandarino v. Mandarino, 180 F. App'x 258, 261 (2d Cir. 2006). However, where the facts that establish tolling are present on the face of the complaint, equitable tolling may be determined on a motion to dismiss. See Singh v. Wells, 445 F. App'x 373, 378 (2d Cir. 2011); Marvel Worldwide, Inc. v. Kirby, 756 F.Supp.2d 461, 472-73 (S.D.N.Y. 2010) (dismissing claims as untimely on a motion to dismiss because equitable tolling was not merited by “look[ing] to the pleading and what it does (and does not) allege”).

         “To qualify for equitable tolling, a plaintiff must show ‘(1) that [s]he has been pursuing h[er] rights diligently, and (2) that some extraordinary circumstance stood in [the] way' of [] bringing a lawsuit.” Ellul, 774 F.3d at 801 (quoting A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 (2d Cir. 2011)). A plaintiff who has been “induced by fraud, misrepresentations or deception to refrain from filing a timely action” may invoke the doctrine of equitable tolling. Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (citation and internal quotation marks omitted); see also Koch v. Christie's Int'l PLC, 699 F.3d 141, 157 (2d Cir. 2012) (citing Abbas, 480 F.3d at 642).

         A statute of limitations may be tolled for fraudulent concealment if a plaintiff can establish that: “(1) the defendant wrongfully concealed material facts relating to defendant's wrongdoing; (2) the concealment prevented plaintiff's ‘discovery of the nature of the claim within the limitations period;' and (3) plaintiff exercised due diligence in pursuing the discovery of the claim during the period plaintiff seeks to have tolled.” Koch, 699 F.3d at 157 (quoting Corcoran v. N.Y. Power Auth., 202 F.3d 530, 543 (2d Cir. 1999)). A plaintiff must allege that the defendant “took affirmative steps to prevent the plaintiff's discovery of his claim or injury or that the wrong itself was of such a nature as to be self-concealing.” Singh, 445 F. App'x at 378 (quoting New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988)); Vincent, 304 F.R.D. at 458 (“Generally, for equitable tolling to apply due to the defendant's misleading conduct, the plaintiff must show that the defendant took affirmative steps beyond the allegedly wrongful activity itself to conceal her activity from the plaintiff. In some cases, however, the plaintiff may be able to prove this element by showing that the wrong itself was of such a nature as to be self-concealing.” (citations and internal quotation marks omitted)); Coble, 824 F.Supp.2d at 571 (“The concealment element is met when plaintiffs show either that the affirmative acts of defendant prevented discovery of plaintiffs' claim or that the wrong itself was self-concealing.” (citing Hendrickson Bros., Inc., 840 F.2d at 1083)); see also McAnaney v. Afstoria Fin. Corp., No. 04-CV-1101, 2008 WL 222524, at *7 (E.D.N.Y. Jan. 25, 2008) (“[I]f the very nondisclosure or misrepresentation that gave rise to the . . . violation also tolled the statute of limitations, the effect of the statute of limitations would be nullified.”).

         Here, Plaintiff has adequately pled fraudulent concealment in support of equitable tolling. The allegations supporting equitable tolling describe a scheme orchestrated by Greenberg to obtain a default judgment by first failing to properly serve Plaintiff with process and then telling Plaintiff that she did not need to appear in the action provided she continued to make payments, despite Greenberg's intent to continue the proceedings.

         As to the first two elements of fraudulent concealment, Plaintiff alleges that Greenberg wrongfully concealed material facts when Russel told Plaintiff that she did not need to appear in the underlying collection action as long as she continued to make payments to Capitol Discount. (Am. Compl. ¶ 41.) Plaintiff alleges that the concealment prevented her discovery of the claims because “[i]n reliance on Attorney Greenberg's office's representation, [Plaintiff] did not appear in court or file an answer, ” but instead made payments toward her debt and “understood that Capitol Discount and Attorney Greenberg were not pursuing the court case because Mr. Russel told her that they would not do so as long as she paid.” (Id. ¶¶ 46-48; Pl. Opp'n 14 (citing Am. Compl. ¶¶ 41, 44, 46, 56, 58-59, 63).) Plaintiff did not learn about the default judgment until in or around February of 2015, (Am. Compl. ¶ 59), and she commenced the instant action approximately six months later, on September 23, 2015. (Cf. Greenberg Mem. 12 (citing Snyder v. U.S. Equities Corp., No 12-CV-6092, 2014 WL 317189, at *5 (W.D.N.Y. Jan. 28, 2014) (refusing equitable tolling to a plaintiff who learned of the judgment against her for a debt she did not owe, quickly retained an attorney and did not commence an action until one year later)).)

         Because the same misrepresentation by Russel is the basis for three of Plaintiff's FDCPA claims, (Am. Compl. ¶¶ 70.a, 70.b, 70.c), the representation must be “self-concealing” in order to qualify as an affirmative act of concealment for those three claims. See Vincent, 304 F.R.D. at 458; Coble, 824 F.Supp.2d at 571. The misrepresentation here was “self-concealing” because Greenberg's misrepresentation was vital to Greenberg's scheme to keep Plaintiff from appearing in the action. See e.g., Moll v. U.S. Life Title Ins. Co. of N.Y., 700 F.Supp. 1284, 1290 (S.D.N.Y. 1988) (describing that in the case of a defendant committing a self-concealing wrong, “[t]he deception is vital to his scheme, for without it he cannot accomplish his illicit purpose”).

         Moreover, in a similar case, Sykes v. Mel Harris and Associates LLC, a court found that the practice of filing false affidavits of service in pursuit of default judgments constituted self-concealing conduct that warranted equitable tolling. Sykes, 757 F.Supp.2d at 422 (“Because sewer service purposefully ensures that a party is never served, it is plausible that defendants' acts were ‘of such character as to conceal [themselves]' to warrant equitable tolling.” (citation and internal quotation marks omitted)). Although the situation here differs slightly from that in Sykes because Plaintiff received notice of the collection action despite Greenberg's failure to serve her with process, Greenberg revived the concealment by telling Plaintiff that she did not need to appear in the action as long as she continued to pay Capitol Discount. As to Plaintiff's claims not based on the misrepresentation by Russel, the misrepresentation was an independent affirmative act of concealment. See, e.g., Coble, 824 F.Supp.2d at 571-72 (finding that re- asserting the validity of known false affidavits of service in a court proceeding and continuing to pursue judgments based on those false affidavits qualified as affirmative acts concealing the plaintiff's FDCPA claims).

         As to the final element of fraudulent concealment, Plaintiff alleges due diligence because, upon learning of the collection action when she received the summons in the mail, she called Greenberg to inquire about the action and subsequently made payments toward the debt in accordance with Greenberg's instructions. (Am. Compl. ¶¶ 38, 47, 60.) These allegations of diligence, although minor, separate this case from pleadings that fail to assert even a single act of diligence.[10]Cf. Conklin v. Maindenbaum, No. 12-CV-2606, 2013 WL 4083279, at *7 (S.D.N.Y. Aug. 13, 2013) (“Here, the Amended Complaint is bereft of any facts that indicate that [the plaintiffs] conducted any efforts whatsoever to discover whether [the defendants] in fact violated the FDCPA, which renders the protection of equitable tolling unavailable to [the plaintiffs].”); Wade v. Rosenthal, Stein & Assocs., LLC, No. 11-CV-5672, 2012 WL 3764291, ...


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