696 Fed.Appx. 551 (2nd Cir. 2017), 16-4101, Indoafric Exports Private Ltd. Co. v. Citibank, N.A.

• Citation: 696 Fed.Appx. 551
• Party Name: INDOAFRIC EXPORTS PRIVATE LTD. CO., Plaintiff-Appellant, v. CITIBANK, N.A., Defendant-Appellee.
• Attorney: FOR APPELLANT: James J. DeCristofaro, DCL Firm (DeCristofaro Law), New York, NY. FOR APPELLEE: Ronald M. Neumann, Zeichner Ellman & Krause LLP, New York, NY.
• Judge Panel: PRESENT: Barrington D. Parker, Gerard E. Lynch, Susan L. Carney, Circuit Judges.
• Case Date: August 31, 2017
• Court: United States Courts of Appeals, U.S. Court of Appeals — Second Circuit

Page 551

696 Fed.Appx. 551 (2nd Cir. 2017)

INDOAFRIC EXPORTS PRIVATE LTD. CO., Plaintiff-Appellant,

v.

CITIBANK, N.A., Defendant-Appellee.

No. 16-4101

United States Court of Appeals, Second Circuit

August 31, 2017

Editorial Note:

This case was not selected for publication in the Federal Reporter and Not to be Cited as Precedent. (See Federal Rule of Appellate Procedure Rule 32.1)

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

Appeal from judgment of the United States District Court for the Southern District of New York (Marrero, J. ).

Page 552

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the November 9, 2016 judgment of the District Court is AFFIRMED.

FOR APPELLANT: James J. DeCristofaro, DCL Firm (DeCristofaro Law), New York, NY.

FOR APPELLEE: Ronald M. Neumann, Zeichner Ellman & Krause LLP, New York, NY.

PRESENT: Barrington D. Parker, Gerard E. Lynch, Susan L. Carney, Circuit Judges.

SUMMARY ORDER

Indoafric Exports Private Limited (" Indoafric" ) appeals from the District Court’s 2016 dismissal under Federal Rule of Civil Procedure 12(b)(6) of its claims arising from Citibank’s refusal in 1996 to honor two letters of credit. Indoafric alleges that Citibank’s actions violated the Uniform Customs and Practice for Documentary Credits (1993 Revision) International Chamber of Commerce Publication No. 500, a standard that was incorporated by reference into the letters of credit. The District Court concluded that Indoafric’s claim for wrongful dishonor of the letters of credit, first made in a complaint filed in 2015, were barred by the applicable statutes of limitations and that Indoafric was not entitled to equitable tolling of the statutes to enable it to pursue that claim.¹ We assume the parties’ familiarity with the underlying facts and the procedural history of the case, to which we refer only as necessary to explain our decision to affirm.

Indoafric first argues that the District Court erred in its ruling on equitable tolling. Reviewing the District Court’s determination in this respect for abuse of discretion, Koch v. Christie ’s Int’l PLC, 699 F.3d 141, 157 (2d Cir. 2012), we find none. The District Court held that New York law controls the application of equitable tolling here, and the parties do not challenge that ruling on appeal. In New York, " the doctrines of equitable tolling or equitable estoppel may be invoked to defeat a statute of limitations defense when the plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action." Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (internal quotation marks omitted). Typically, " mere silence or failure to disclose the wrongdoing is insufficient." Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 836 N.Y.S.2d 509, 868 N.E.2d 189, 198 (2007) (internal quotation marks omitted). Where a defendant has a " duty to speak," however, and fails to do so, a plaintiff’s reliance on a defendant’s silence can provide grounds for equitable tolling. Gaia House Mezz LLC v. State St. Bank & Tr. Co., 720 F.3d 84, 90 (2d Cir. 2013).

Indoafric does not dispute that a six-year statute of limitation applies to its claim for wrongful dishonor of letters of credit or that it filed suit long after the expiration of this period. It instead argues that it did not discover Citibank’s alleged dishonor of the letters of credit until 2012, when it received certain documents from Kenyan bankruptcy authorities. This was more than fifteen years after " Citibank ... failed to honor the letters of credit," in 1996. Am. Compl. ¶ 10. Attempting to excuse its...