Henry v. Bank of America
2017 NY Slip Op 1436
N.Y. App. Div.2017Background
- Plaintiff Jonathan Henry was enrolled (allegedly without consent) in Bank of America's Credit Protection Plan (CPP) on March 8, 2001 and in Privacy Assist Service (PAS) in March 2007; fees were billed monthly on his credit-card statements.
- On March 6, 2009 defendants changed Henry’s CPP to a less expensive CPP after he reported unemployment; plaintiff closed the card on June 14, 2010.
- CPP and PAS fees, plus interest and penalties, increased his account balance; defendants later refunded PAS fees for March 2007–November 2008 on May 31, 2013.
- Henry filed suit on August 27, 2014 alleging involuntary enrollment and seeking damages for various fraud, contract, fiduciary duty, and unconscionability claims.
- Supreme Court dismissed multiple causes of action as time-barred (statutes of limitations: three- and six-year claims); the appellate division affirmed dismissal except for unjust enrichment and money had and received claims for amounts paid within six years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did claims accrue for involuntary enrollment in CPP (2001) and PAS (2007)? | Accrual tolled until plaintiff discovered scheme in 2012/2013; claims therefore timely. | Accrued at the time of enrollment (2001 and 2007); suit filed in 2014 is too late. | Accrual occurred at enrollment (2001, 2007); claims time-barred. |
| Applicability of the continuous (continuing wrong) doctrine to toll limitations | Ongoing monthly billings and alleged scheme constitute continuing wrongful acts that toll the statute. | Monthly billings are continuing effects (damages), not new unlawful acts; no recurring duty was breached. | Doctrine inapplicable: alleged wrongs were discrete enrollments; continued billing were consequences, not continuing wrongs. |
| Fraud discovery/concealment tolling | Defendant concealed the scheme; plaintiff could not reasonably have discovered fraud until 2012/2013. | Plaintiff was billed monthly and thus had information sufficient to discover enrollment earlier. | Tolling for concealment rejected; plaintiff’s monthly statements put him on inquiry notice. |
| Class-action (American Pipe) tolling from federal class suits | Federal CPP/PAS class actions tolled limitations for opt-out plaintiff. | Class actions do not save untimely individual claims here. | American Pipe tolling inapplicable to save these time-barred claims. |
Key Cases Cited
- State ex rel. Brady v. Pettinaro Enters., 870 A.2d 513 (Del. Ch. 2005) (accrual principles for discrete wrongful acts)
- Gaidon v. Guardian Life Ins. Co. of Am., 96 N.Y.2d 201 (N.Y. 2001) (statute of limitations accrual rules)
- Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399 (N.Y. 1993) (limitations period generally runs from breach even if damages occur later)
- Selkirk v. State, 249 A.D.2d 818 (N.Y. App. Div. 1998) (continuous wrong doctrine tolling to date of last wrongful act)
- Jensen v. General Elec. Co., 82 N.Y.2d 77 (N.Y. 1993) (continuous wrong saves only claims for wrongs within limitations window)
- Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606 (N.Y. 1979) (continuing contractual duties and tolling)
- Town of Oyster Bay v. Lizza Indus., Inc., 22 N.Y.3d 1024 (N.Y. 2013) (single tort with continuing effects does not trigger continuous wrong doctrine)
- American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (U.S. 1974) (class-action tolling principle)