14-2640 Horn v. Politopoulos UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

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. 1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 14thday of October, two thousand fifteen. 4 5 PRESENT: 6 GERARD E. LYNCH, 7 BARRINGTON D. PARKER, 8 SUSAN L. CARNEY, 9 Circuit Judges. 10

_____________________________________ 11 12 CHESTER HORN, Individually, and as 13 Administrator of the Estate of David Horn, 14 GLADYS HORN, DAVID HORN, JR., 15 DIANA HORN and PATRICIA HORN, 16 Plaintiffs-Appellants , 17 18 v. 14-2640 19 20 CITY OF YONKERS POLICE OFFICER 21 DEAN POLITOPOULOS, 22 Defendant-Appellee

. 23

_____________________________________ 24 25 FOR APPELLANTS: William A. Thomas, New York, NY. 26 27 FOR APPELLEE: Lisa L. Shrewsberry, Traub Lieberman Straus & Shrewsberry 28 LLP, Hawthorne, NY. 29 30Appeal from the United States District Court for the Southern District of New 1 York (Sidney H. Stein, J. ). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREEDthat the judgment of the district court is AFFIRMED

. 4 Plaintiffs-appellants, family members of decedent David Horn, appeal from the 5 district court’s grant of summary judgment on their § 1983 excessive force claim in favor 6 of the defendant, City of Yonkers Police Officer Dean Politopoulos, on the ground that 7 their claim is time barred. 1 We assume familiarity with the facts and procedural history of 8 the case, which we reference only as necessary to explain our decision to affirm. 9 In § 1983 actions, state statutes of limitations for personal injury actions and state 10 tolling rules generally govern the time a party has to bring her action. The applicable 11 limitations period in New York is three years. N.Y. C.P.L.R. § 214(5) (McKinney 2014). 12
SeePearl v. City of Long Beach , 296 F.3d 76, 79 (2d Cir. 2002). Federal law, however, 13 governs when the claim accrues. Id . at 80. 14 A claim accrues under federal law when the plaintiff knows, or has reason to 15 know, of the injury on which the claim is based. Id . “[I]n applying a discovery accrual 16 rule, we have been at pains to explain that discovery of the injury, not discovery of the 17
18

1 We review an order granting summary judgment de novo, considering the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in her favor. Paige v. Police Dep’t of City of Schenectady , 264 F.3d 197, 199 (2d Cir. 2001).
2other elements of a claim, is what starts the clock.” Rotella v. Wood , 528 U.S. 549, 555 1 (2000). 2 The district court here correctly concluded that plaintiffs’ claim against 3 Politopoulos is barred by the statute of limitations. It is undisputed that plaintiffs knew of 4 the injury giving raise to their claim on March 19, 2005, when David Horn was shot and 5 killed by police officers. Plaintiffs’ cause of action therefore accrued on that date, after 6 which plaintiffs had three years to bring their claim. This action was filed on March 3, 7 2011, almost six years after plaintiffs’ claim accrued, and thus is clearly untimely. 8 Plaintiffs argue that their claim is nevertheless saved by the doctrine of equitable 9 estoppel. Under New York State law, “equitable estoppel may be invoked to defeat a 10 statute of limitations defense when the plaintiff was induced by fraud, misrepresentations 11 or deception to refrain from filing a timely action.” Doe v. Holy See (State of Vatican 12 City) , 793 N.Y.S.2d 565, 568 (3d Dep’t 2005) (internal quotation marks omitted); see 13 Simcuski v. Saeli , 44 N.Y.2d 442, 450 (1978). To merit equitable estoppel, a plaintiff 14 must allege either active fraudulent concealment or a fiduciary relationship giving rise to 15 the defendant’s obligation to inform the plaintiff of the facts underlying the claim. Holy 16
See , 793 N.Y.S.2d at 568; seePearl , 296 F.3d at 88; Kamruddin v. Desmond , 741 17 N.Y.S.2d 559, 561-62 (2d Dep’t 2002). 18 Moreover, equitable estoppel is not available unless the plaintiff exercised due 19 diligence in bringing an action. “[T]he burden is on the plaintiff to establish that the 20 action was brought within a reasonable time after the facts giving rise to the estoppel 21
3have ceased to be operational.” Simcuski , 44 N.Y.2d at 450 (emphasis added); seeAbbas 1 v. Dixon , 480 F.3d 636, 642 (2d Cir. 2007); Putter v. N. Shore Univ. Hosp. , 7 N.Y.3d 2 548, 553 (2006). Whether a plaintiff acted with due diligence in bringing her action 3 within a reasonable time depends on all the relevant circumstances. Simcuski , 44 N.Y.2d 4 at 450-51. The legislatively prescribed period of limitations is the “outside limit on what 5 will be regarded as due diligence.” Id

. 6 Applying these standards, plaintiffs’ claim of equitable estoppel is without merit. 7 Plaintiffs do not allege sufficient non-conclusory facts to show that they were “induced 8 by fraud, misrepresentations or deception to refrain from filing a timely action,” nor does 9 the record permit the conclusion that they exercised due diligence in bringing an action. 10 Id . at 449-51; seeHoly See , 793 N.Y.S.2d at 568-69. 11 Plaintiffs originally sued a number of other officers, who were identified in a 12 Yonkers Police Department report as having fired their guns at David Horn. See 13 Complaint, Horn v. O’Brien, No. 07-cv-7822 (S.D.N.Y. Sept. 5, 2007); J.A. at 38-53. 14 Their only argument that the identity of Politopoulos was fraudulently concealed is that 15 he was not identified as a shooter in that report, and that they were not provided with a 16 copy of a ballistics report that raised the possibility that Politopoulos had also fired his 17 gun until defendants’ initial disclosures were made in that case in March 2008. However, 18 neither the defendants in that case nor Politopoulos had any obligation to provide 19 plaintiffs with that report before it was provided, in a timely manner, in discovery in that 20 case. Generally, “mere silence or failure to disclose the wrongdoing is insufficient” to 21
4constitute fraudulent concealment, absent a fiduciary relationship. Ross v. Louise Wise 1 Servs., Inc. , 8 N.Y.3d 478, 491 (2007) (internal quotation marks omitted). “A wrongdoer 2 is not legally obliged to make a public confession, or to alert people who may have claims 3 against it, to get the benefit of a statute of limitations.” Zumpano v. Quinn , 6 N.Y.3d 666, 4 675 (2006). SeealsoSingh v. Wells , 445 F. App’x 373, 378 (2d Cir. 2011) (explaining 5 that under New York law, “statements that defendants did not turn over potentially 6 inculpatory material until plaintiffs asked for it do not point to an obstructive 7 concealment.”). Plaintiffs cannot contend that the ballistics report was concealed from 8 them when they were in fact provided the report in discovery, and when the parties do not 9 have the type of fiduciary relationship that could have demanded earlier disclosure of the 10 document. 11 Even were we to assume that plaintiffs could show active fraudulent concealment, 12 moreover, plaintiffs fail to show that they acted with the required due diligence in 13 bringing an action “after the facts giving rise to the estoppel have ceased to be 14 operational.” Simcuski , 44 N.Y.2d at 450. Any possible concealment of Officer 15 Politopoulos’s potential role in the shooting ceased when the ballistics report was 16 provided to the plaintiffs no later than March 8, 2008. Plaintiffs waited more than two 17 years before trying to add Officer Politopoulos as a defendant in their related action, and 18 when that request was denied, they waited another eight months before initiating this 19 separate lawsuit. Such lengthy delay after the alleged concealment had ended was not 20

5reasonable under the circumstances, particularly given the length of time that had passed 1 since the incident in question. SeeSimcuski , 44 N.Y.2d at 450-51. 2 We have considered plaintiffs’ remaining claims, and found them without merit. 3 Accordingly, the judgment of the district court is AFFIRMED. 4
5
FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, Clerk of Court 7 8 9

6