Jonathan M. Henry, Appellant, v Bank of America et al., Respondents.
Supreme Court, Appellate Division, First Department, New York
February 23, 2017
[48 NYS3d 67]
Order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about May 8, 2015.
Plaintiff was enrolled in defendants’ Credit Protection Plan (CPP) on March 8, 2001 and their Privacy Assist Service (PAS)
Plaintiff closed his credit card aсcount on June 14, 2010. CPP and PAS fees plus interest and penalties were included in plaintiff‘s account balance which reached $29,246.06 as of approximately February 7, 2011. On May 31, 2013, defendants issued a refund check to plaintiff for PAS fees improperly charged during thе period of March 2007-November 2008, when no PAS services were actually provided.
On August 27, 2014, plaintiff, alleging that he was enrolled in the twо optional credit card products without his consent, for which he received no benefit, commenced this action sеeking, inter alia, compensatory and punitive damages. Plaintiff asserts that he became aware of defendant‘s scheme in or about November/December 2012 when he was advised of a California CPP class action, and on May 31, 2013 when he was informеd by defendants that he had been charged PAS fees for which he received no services.2
Supreme Court granted defendants’ motion to dismiss as time-barred the first (
The subject causes of actiоn accrued either in March 2001, when defendants allegedly enrolled plaintiff without his
Plaintiff‘s reliаnce on the continuing wrong doctrine to toll the limitations periods is misplaced. The continuous wrong doctrine is an excеption to the general rule that the statute of limitations “runs from the time of the breach though no damage occurs until later” (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]). The doctrine “is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act” (Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998]). Where applicable, the doctrine will save all claims for reсovery of damages but only to the extent of wrongs committed within the applicable statute of limitations (see Jensen v General Elec. Co., 82 NY2d 77, 83-85, 88 [1993]; Sutton Investing Corp. v City of Syracuse, 48 AD3d 1141, 1143 [4th Dept 2008], lv dismissed 10 NY3d 858 [2008]).
The doctrine “may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs” (Doukas v Ballard, 39 Misc 3d 1227[A], 2013 NY Slip Op 50776[U], *6 [Sup Ct, Suffolk County 2013] [citation omitted]; see also Roslyn Sav. Bank v National Westminster Bank USA, 266 AD2d 272 [2d Dept 1999]). The doctrine is inapplicable where there is one tortious act complained of since the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff and it does not change as a result of “continuing consequential damages” (Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024, 1032 [2013]; see also Quintana v Wiener, 717 F Supp 77, 80 [SD NY 1989]). In contract actions, the doctrine is applied to extend the statute of limitations when the contract imposes a continuing duty on the breaching party (see Bulova Watch Co. v Celotex Corp., 46 NY2d 606, 611 [1979]; Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 AD3d 820, 822 [2d Dept 2013], lv dismissed 21 NY3d 1024 [2013]; King v 870 Riverside Dr. Hous. Dev. Fund Corp., 74 AD3d 494, 496 [1st Dept 2010]). Thus, where a plaintiff asserts a single breach—with damages increasing as the breach continued—the continuing wrong
Here, the alleged wrongs are the enrollment of plaintiff in the CPP and PAS programs in March 2001 and 2007, respectively, and there was no breach of a rеcurring duty. The monthly billings demanding payment of CPP and PAS fees, both before and after plaintiff closed his account, represent the consequences of those wrongful acts in the form of continuing damages, not the wrongs themselves, and do not qualify for application of the continuous wrong doctrine.
Plaintiff‘s argument that he could not reasonably have discovered the alleged fraudulent conduct within the limitations period due to defendants “concealment” and ongoing “scheme,” is not reconcilable with his admissions that he was billed for the charges monthly. There is no more information that plaintiff could have needed to determinе if he had been involuntarily enrolled in the programs (see Sanchez de Hernandez v Bank of Nova Scotia, 76 AD3d 929 [1st Dept 2010], lv denied 16 NY3d 705 [2011]).
Plaintiff‘s argument that the CPP and PAS claims accrued on March 6, 2009, when defendants involuntarily enrolled him in a new CPP contract at different fees is without merit. While plaintiff characterizes it as enrollment in a new рrogram, defendants merely switched him from a more expensive CPP program to a cheaper CPP program, which was a сontinuing effect of the initial involuntary enrollment on March 8, 2001.
We have considered plaintiff‘s remaining contentions, including that the federal class actions tolled the limitations periods (see American Pipe & Constr. Co. v Utah, 414 US 538, 554 [1974]), and that dismissal of the complaint as time barred would be unconscionable and inequitable, and find them unavailing.
Concur—Mazzarelli, J.P., Andrias, Saxe, Feinman and Gische, JJ.