Burrowes v. Combs

• Decision Date: 10 January 2006
• Docket Number: 6655.,6654.
• Citation: 2006 NY Slip Op 00108,808 N.Y.S.2d 50,25 A.D.3d 370
• Parties: KIRK BURROWES, Respondent, v. SEAN COMBS, Also Known as PUFF DADDY and Others, et al., Appellants, et al., Defendant. KIRK BURROWES, Respondent, v. SEAN COMBS, Also Known as PUFF DADDY and Others, et al., Defendants, and KENNETH MEISELAS, Appellant.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 370

808 N.Y.S.2d 50

2006 NY Slip Op 00108

KIRK BURROWES, Respondent, v.SEAN COMBS, Also Known as PUFF DADDY and Others, et al., Appellants, et al., Defendant.

KIRK BURROWES, Respondent, v.SEAN COMBS, Also Known as PUFF DADDY and Others, et al., Defendants, andKENNETH MEISELAS, Appellant.

6654.

6655.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 10, 2006.

Order, Supreme Court, New York County (Charles Edward Ramos, J.), entered May 4, 2005, which denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5) and (7) and 3016 (b), unanimously reversed, on the law, with costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

This action for breach of contract, conversion through force and intimidation, turnover, common-law fraud, unjust enrichment, accounting and constructive trust, arises out of a 1996 incident in which defendant Combs allegedly menaced plaintiff with a baseball bat, while defendant Meiselas, Combs's attorney, demanded that plaintiff sign an instrument forfeiting all interest in defendantBad Boy Entertainment, Inc.Plaintiff further asserts a claim that defendants committed tortious interference with a contract for talent management between plaintiff and recording artist Mary J. Blige, when Combs, aided by Meiselas, persuaded Blige to stop working with plaintiff.Furthermore, plaintiff alleges that defendant Combs announced his intent to ostracize plaintiff in the hope of precluding plaintiff from achieving success in the music industry.

With the exception of plaintiff's tortious interference with contract claim, all present causes of action stem from the alleged 1996 incident, and are therefore barred by the applicable statutes of limitations (seeCPLR 213, 214 [3]).To the extent plaintiff alleges defendants made certain promises as late as 2001 that could toll the applicable limitations period, they were not in writing signed by defendants, as required by General Obligations Law § 17-101(seeScheuer v Scheuer,308 NY 447, 452[1955];Dillon v Peretti,176 AD2d 497[1991]).

The doctrine of collateral estoppel bars plaintiff from successfully relying on equitable estoppel to toll his time in which to sue.In a prior action filed in the Southern District of New York in 2003, plaintiff asserted two Racketeer Influenced and Corrupt Organizations Act (RICO) claims, conspiracy to commit further RICO violations, tortious interference with contract, breach of contract, unjust enrichment and promissory estoppel.In March 2004, the Southern District dismissed that action in its entirety, having found the RICO claims barred by the four-year statute of limitations and declining to exercise supplemental jurisdiction over the state law claims (seeBurrowes v Combs,312 F Supp 2d 449, 451[SD NY2004], affd124 Fed Appx 70[2d Cir2005]).The same day plaintiff appealed the Southern District's order of dismissal, he commenced the instant action based on factual allegations practically inseparable from those stated in the federal complaint.The Second Circuit affirmed and found that plaintiff had not "alleged any facts suggesting that defendants prevented him from discovering the nature of his RICO claims within the limitations period"(124 Fed Appx at 71).

In a RICO casethe statute of limitations can be tolled if the plaintiff establishes both "fraudulent concealment" of the violation and that the plaintiff exercised "due diligence" to discover the claim (seeTho Dinh Tran v Alphonse Hotel Corp.,281 F3d 23, 36[2d Cir2002]).Similarly, in New York, "[i]n order to prevail on the theory of equitable estoppel, the party seeking estoppel must demonstrate a lack of knowledge of the true facts; reliance upon the conduct of the party estopped; and a prejudicial change in position"(River Seafoods, Inc. v JPMorgan Chase Bank,19 AD3d 120, 122[2005], lv granted5 NY3d 715[2005]).The Second Circuit has already found that plaintiff has failed to allege facts suggesting that defendants prevented him from discovering the nature of his RICO claims within the limitations period.As the IAS court found, the allegations in the state action are virtually identical to or substantively the same as those underlying the RICO claims.Accordingly, plaintiff is barred from relitigating whether defendants should be equitably estopped from asserting the statute of limitations.

Plaintiff's appellate brief to the federal court evidences that he was afforded a full and fair opportunity to litigate his equitable estoppel argument.Thus, the collateral estoppel doctrine governs here (seeBrowning Ave. Realty Corp. v Rubin,207 AD2d 263[1994], lv denied85 NY2d 804[1995]).That the federal court declined to exercise jurisdiction over the state claims asserted is not dispositive, nor is the fact that the federal...