20-3587-cv

Busher v. Barry

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 a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 2nd day of November, two thousand twenty-one.

PRESENT: Dennis Jacobs,

Steven J. Menashi,

Circuit Judges

Lewis A. Kaplan,

District Judge.*

____________________________________________

MEREDITH BUSHER, as Co-Personal 

Representative of the Estate of Eugene L. Busher, 

ELLEN BUSHER, as Co-Personal Representative 

of the Estate of Eugene L. Busher, NANCY 

TUMPOSKY,

Plaintiffs-Appellants,

* Judge Lewis A. Kaplan of the United States District Court for the Southern District of 

New York, sitting by designation.
2

EUGENE L. BUSHER,

Plaintiff,

v. No. 20-3587-cv

DESMOND T. BARRY, JR., THOMAS T. EGAN, 

JOHN P. HEANUE, WILLIAM M. KELLY, 

FRANCIS P. BARRON, WINGED FOOT GOLF

CLUB, INC.,

Defendants-Appellees,

WINGED FOOT HOLDING CORPORATION,

Nominal Defendant-Appellee.

____________________________________________

For Plaintiffs-Appellants: JOHN HALEBIAN, Lovell Stewart Halebian 

Jacobson LLP (Adam C. Mayes, Lovell 

Stewart Halebian Jacobson LLP, Sanford F. 

Young, Law Offices of Sanford F. Young, 

P.C., on the brief), New York, NY.

For Defendants-Appellees: MAEVE O’CONNOR (David Sarratt, Susan 

Reagan Gittes, Laura J. Samuels, Morgan A. 

Davis, Aasiya F.M. Glover, on the brief), 

Debevoise & Plimpton LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Southern 

District of New York (Román, J.).
3

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the appeal of the denial of partial summary judgment is 

DISMISSED, and the judgment of the district court is AFFIRMED.

The district court dismissed this shareholder derivative action brought on 

behalf of nominal defendant Winged Foot Holding Corporation (“WFHC”), a New 

York business corporation that owns the 280-acre property operated by the 

Winged Foot Golf Club (the “Club”), a nonprofit membership corporation. The 

plaintiffs asserted claims on behalf of WFHC against certain current and former 

WFHC directors as well as against the Club, which is WFHC’s majority and 

controlling shareholder. The plaintiffs alleged that the Club, in concert with the 

defendant directors, contrived to create a “sweetheart” long-term lease under 

which the Club and its members enjoyed the exclusive use of WFHC’s property 

for a nominal rent that wasted and misappropriated WFHC’s sole asset for the 

benefit of the Club and its members—and to the detriment of WFHC and its 

shareholders. The district court dismissed the majority of the plaintiffs’ claims, 

concluding that the plaintiffs failed to establish a basis for tolling the statute of 

limitations on their otherwise untimely claims and that the fraud discovery rule 

did not apply. The district court further concluded that questions of material fact 
4

remained on the plaintiffs’ only timely claims, which challenged a 2013 lease 

extension. However, the plaintiffs voluntarily dismissed those claims before trial. 

This diversity case is governed by settled principles of New York law. We 

assume the parties’ familiarity with the underlying facts, the procedural history of 

the case, and the issues on appeal.

I

In 1921, members of the New York Athletic Club started organizing a golf 

club. The organizers incorporated two separate entities. WFHC was incorporated 

under New York’s Business Corporation Law; the Club was incorporated under 

New York’s Membership Corporations Law. WFHC’s certificate of incorporation 

authorized issuance of 600 shares of stock, and the Club’s bylaws established a 

membership of 600 and required each member to acquire one of WFHC’s 600 

shares. After the formation of these entities, the organizers filed the respective

certificates of incorporation with the New York Secretary of State.

WFHC used the proceeds from the sale of its 600 shares to purchase 280 

acres of land and to build two golf courses and a clubhouse. WFHC and the Club

then executed a long-term lease in 1924. The lease did not require the Club to pay 

any fixed rent. Instead, the Club was to invest its earnings in improvements to the 
5

land and to turn over any remaining profits after expenses to WFHC. Under the 

lease, the Club received an initial term of 21 years with the option to renew on the 

same terms for another two 21-year terms.

In 1947, the original lease was amended. Instead of a variable rent 

obligation, the 1947 lease established a fixed annual rent of $30,000. The parties 

then renewed the lease under the same terms as the 1947 lease in 1974 (for a lease 

that would run from 1987 to 2008), 1984 (for 2008 to 2029), 2002 (for 2029 to 2050), 

and, most recently, 2013 (for 2050 to 2071).

The Club also made changes to the rules governing members’ ownership of 

WFHC stock. Club membership fell during the Great Depression, putting financial 

pressure on the Club. To increase income, the Club authorized “yearly” 

memberships that did not require purchase of WHFC stock sometime in the 1930s. 

In 1949, the Club eliminated individual stockholding as a requirement for any 

category of membership. Throughout the 1940s, the Club intermittently purchased 

shares from former members or their heirs for nominal amounts. By 1983, the Club 

had acquired a majority of WFHC shares (302), a fact that was disclosed in 

WFHC’s and the Club’s consolidated financial statements. 
6

II

On June 16, 2014, Plaintiff Eugene Busher brought this derivative action

against WFHC’s current board of directors, the Club, and WFHC itself as a 

nominal defendant. The complaint asserted claims for damages for the allegedly 

wasteful leases and for the Club’s alleged scheme to entrench its control of WFHC

by buying WFHC shares. The complaint alleged that WFHC had been formed as 

an investment vehicle to pursue shareholder profits, and therefore the belowmarket lease agreements with the Club breached the directors’ fiduciary duties. 

The Club was implicated because, according to the complaint, it facilitated these 

wasteful deals by gaining control over WFHC. 

The defendants answered the original complaint and then moved for 

summary judgment on the grounds of laches, acquiescence, and estoppel. The 

district court ruled that summary judgment was inappropriate because, among 

other things, there were issues of fact about whether the defendants breached a 

fiduciary duty to Busher. See Busher v. Barry (Busher I), No. 14-CV-4322, 2016 WL 

1249612 (S.D.N.Y. Mar. 28, 2016). The defendants filed a motion for 

reconsideration, which the district court denied. See Busher v. Barry (Busher II), No. 

14-CV-4322, 2016 WL 2742428 (S.D.N.Y. May 10, 2016).
7

After fact and expert discovery, Plaintiffs Meredith and Ellen Busher—who 

were substituted as representatives of their late father’s estate—and Nancy 

Tumposky, who inherited an interest in a share, filed an amended complaint. The 

amended complaint alleged claims for breach of fiduciary duty against the 

directors under New York law, common law breach of fiduciary for waste and 

misappropriation against both the directors and the Club, unjust enrichment

against the Club, and aiding and abetting the breach of fiduciary duty against the 

Club. The amended complaint also sought common law dissolution of WFHC. 

Based on allegations that the defendants had fraudulently concealed the for-profit

purpose of WFHC, the amended complaint asserted that the defendants were 

equitably estopped from raising the statute of limitations as an affirmative 

defense.

The plaintiffs moved for partial summary judgment on liability for their 

breach of fiduciary duty claims. The defendants cross-moved for summary 

judgment, arguing that (1) the claims that had accrued before June 16, 2008, were 

barred by the applicable statute of limitations and (2) claims that accrued after that 

date were barred by the doctrines of waiver, acquiescence, and estoppel.
8

The district court granted the defendants’ cross-motion on the issue of the 

statute of limitations, holding that the plaintiffs had failed to meet their burden of 

creating a question of material fact sufficient to toll the statute of limitations under 

either the doctrine of equitable estoppel or New York’s fraud discovery rule. The 

district court found that there was “no genuine dispute that there were storm 

warnings” that would have put shareholders on inquiry notice of the facts 

underlying the plaintiffs’ claims decades before the suit was filed. Special App’x 

11. Because the claims were subject to a six-year statute of limitations, the district 

court held that “claims arising from conduct before June 16, 2008 are barred by the 

statute of limitations,” and the only conduct left to consider on the merits was “the 

2013 lease extension.” Id. at 13.

The district court denied the plaintiffs’ motion for partial summary 

judgment, concluding that there was a genuine dispute of material fact about the 

purpose of WFHC at the time of the 2013 lease extension.

Before trial began, however, the plaintiffs moved to voluntarily dismiss 

their remaining claims—those related to the 2013 lease renewal—with prejudice. 

After notice and a hearing at which no shareholder objected to the dismissal, the 

district court entered final judgment.
9

The plaintiffs now appeal the district court’s order granting the defendants’ 

cross motion for summary judgment on the statute of limitations issue. They argue 

that the district court erred because it dismissed claims that accrued within the 

statute of limitations period and failed to toll their untimely claims. The plaintiffs 

also purport to appeal the district court’s denial of their motion for partial 

summary judgment.

III

“We review grants of summary judgment de novo, viewing the evidence in 

the light most favorable to the non-moving party.” Higgins v. Metro-N. R. Co., 318 

F.3d 422, 425 (2d Cir. 2003). “Summary judgment is warranted only upon a 

showing ‘that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.’” MacKenzie-Childs Ltd. v. MacKenzieChilds, 477 F. App’x 836, 839 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). In 

determining whether there are genuine issues of material fact, “we are required to 

resolve all ambiguities and draw all permissible factual inferences in favor of the 

party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 

137 (2d Cir. 2003) (internal quotation marks omitted).
10

A

The district court did not erroneously dismiss any timely claims. It correctly 

held that—other than claims related to the 2013 lease extension—the plaintiffs’ 

claims were barred by the statute of limitations.

On appeal, the plaintiffs recharacterize some of the claims as arising from 

events within the limitations period. We need not reach the merits of these 

arguments because the arguments were not raised before the district court. 

Because the plaintiffs failed to “raise this argument in [their] opposition to 

summary judgement,” the “argument has been waived.” Palmieri v. Lynch, 392 

F.3d 73, 87 (2d Cir. 2004).

Even if the arguments had not been waived, the plaintiffs would not prevail. 

First, the plaintiffs claim to have a timely unjust enrichment claim against the Club 

related to the 2029-2050 lease renewal option. Although WFHC granted this lease 

renewal option to the Club in 2002, the plaintiffs argue that the claim accrued only 

when the Club exercised the option in 2013. But “a claim for unjust enrichment 

accrues upon the occurrence of the alleged wrongful act giving rise to restitution.” 

Kaufman v. Cohen, 760 N.Y.S.2d 157, 171 (2003). The wrongful act identified in the 

amended complaint occurred—at the latest—in 2002, when, allegedly acting for 
11

the benefit of the Club and to the detriment of the shareholders, WFHC granted 

another lease extension option to the Club. 

Next, the plaintiffs claim to have timely claims based on the directors’ 

failure to rescind the allegedly wasteful leases. The plaintiffs identify no authority 

for the proposition that a claim for breach of fiduciary duty may arise from a 

director’s failure to rescind a contract that was executed outside the limitations 

period. If such a claim were allowed, there would effectively be no statute of 

limitations for directors’ actions. We do not think the New York Court of Appeals 

would recognize such a claim. See In re Elm Ridge Assocs., 234 F.3d 114, 121 (2d Cir. 

2000) (noting that we must “predict how the highest court of the state would 

resolve” an issue) (alteration omitted).

The plaintiffs also claim to have timely claims that arose from the 

defendants’ alleged breaches of fiduciary duty relating to the Club’s acquisition of 

WFHC shares. The amended complaint suggests that the acquisitions were part of 

scheme to take control of WFHC. Any claims based on this purported scheme, 

however, would have accrued by 1983, when the Club acquired a majority of 

WFHC shares.
12

Finally, the plaintiffs argue that their claim seeking a declaration that the 

1947 lease amendment and subsequent lease options are void is not subject to a 

statute of limitations defense. But “[a]n action for a declaratory judgment is 

generally governed by a six-year limitations period.” Town of Hempstead v. AJM 

Capital II, LLC, 13 N.Y.S.3d 199, 201 (2d Dep’t 2015). This rule extends to actions 

seeking a declaration that a corporate transaction is void. In Kassab v. Kassab, for 

example, the Appellate Division held that a claim seeking a judgment declaring 

an option agreement void was governed by a six-year limitations period. 29 

N.Y.S.3d 39, 41-42 (2d Dep’t 2016).1

In sum, the district court properly held that the only claims that fell within 

the limitations period were those related to the 2013 lease extension.

B

We find no error in the district court’s holding that the plaintiffs’ untimely 

claims are not saved by equitable estoppel.

1 The plaintiffs’ reliance on Faison v. Lewis, 25 N.Y.3d 220 (2015), is misplaced. Faison

stands for the limited proposition that “a claim against a forged deed is not subject to a 

statute of limitations defense.” Id. at 224.
13

We distinguish between the federal doctrine of equitable tolling, which “is 

not available in state causes of action in New York,” Jang Ho Choi v. Beautri Realty 

Corp., 135 A.D.3d 451, 452 (1st Dep’t 2016), and the New York doctrine of equitable 

estoppel. We have “used ‘equitable tolling’ to mean fraudulent concealment of a 

cause of action that has ‘in some sense accrued earlier,’ and to mean fraudulent 

concealment that postpones the accrual of a cause of action.” Pearl v. City of Long 

Beach, 296 F.3d 76, 82 (2d Cir. 2002) (citation omitted). New York, in contrast, 

“appears to use the label ‘equitable estoppel’ to cover both the circumstances 

‘where the defendant conceals from the plaintiff the fact that he has a cause of 

action and where the plaintiff is aware of his cause of action, but the defendant 

induces him to forego suit until after the period of limitations has expired.’” Id.

(alteration omitted). Equitable estoppel “applies where it would be unjust to allow 

a defendant to assert a statute of limitations defense” because “the defendant’s 

affirmative wrongdoing ... produced [a] long delay between the accrual of the 

cause of action and the institution of the legal proceeding.” Zumpano v. Quinn, 6 

N.Y.3d 666, 673 (2006). In particular, equitable estoppel prevents a defendant from 

asserting a statute-of-limitations defense under New York law “where [a] plaintiff 

was induced by fraud, misrepresentations or deception to refrain from filing a 
14

timely action” and the plaintiff demonstrates “reasonable reliance on the 

defendant’s misrepresentations.” Id. at 674. 

The plaintiffs here argue that the defendants prevented them from 

discovering their claims for breach of fiduciary duty by failing to disclose 

generally that “WFHC had a for-profit business purpose inconsistent with 

subordination to the Club” and by asserting the contrary at various times.

Plaintiffs-Appellants’ Br. 40-43. Even assuming that the defendants did so,

however, the defendants’ actions did not prevent the plaintiffs’ predecessors in 

interest from knowing of WFHC’s for-profit business purpose and from bringing 

a timely suit. On the plaintiffs’ own theory of the case, WFHC’s certificate of 

incorporation—which was filed publicly in 1921—established “as a matter of law 

that WFHC had a for-profit business purpose.” Id. at 45. Meanwhile, the 1947 lease

amendment—which changed the Club’s rent from its entire net income to a fixed 

annual payment of $30,000—conflicts with any such for-profit purpose. Even if the 

1947 lease amendment itself was not publicly accessible, board minutes taken at 

that time stated that “it was always contemplated” that WFHC’s holding of the 

land “would be at all time[s] for the benefit of the Golf Club.” And the notes to the 

consolidated financial statements for 1983 communicated that the Club “now 
15

owns more than 50% of the outstanding stock of [WFHC].” These materials, 

among others in the record, make obvious the possibility that WFHC was not 

being operated at arms’ length from the Club or to generate profits for 

shareholders, regardless of the defendants’ purported misrepresentations about 

WFHC’s corporate purpose. On the plaintiffs’ theory, then, the alleged breaches of 

duty by the WFHC directors have been apparent for 74 years.

It would not have been reasonable for the plaintiffs’ predecessors in interest 

to rely on the defendants’ purported concealment of WFHC’s for-profit purpose 

in failing to bring their action because relevant facts that, according to the 

plaintiffs, establish their claims were publicly available. The district court 

accordingly did not err in holding that the defendants are not equitably estopped 

from asserting the statute of limitations.2

2 Similarly, the district court held that the fraud discovery rule, N.Y.C.P.L.R. § 213(8)—

which is not at issue on this appeal—did not apply to the plaintiffs’ claims because “there 

is no genuine dispute that” the plaintiffs were on inquiry notice of those claims. Special 

App’x 10-13. In so holding, the district court concluded that “there is no genuine dispute 

that there were storm warnings that would have caused a reasonable person to 

investigate” the facts underlying the untimely claims. Id. at 11.
16

C

The plaintiffs ask us to review the district court’s order denying their motion 

for partial summary judgment, which held that there were triable issues of fact 

regarding WFHC’s purpose. We dismiss this part of the appeal for lack of 

jurisdiction. 

We generally will not review an order denying summary judgment. See 

DiStiso v. Cook, 691 F.3d 226, 239 (2d Cir. 2012) (“[T]he denial of a motion for 

summary judgment is generally not appealable.”). “That order ‘retains its 

interlocutory character,’ and therefore we lack jurisdiction to review it on appeal.”

Omega SA v. 375 Canal, LLC, 984 F.3d 244, 251 (2d Cir. 2021) (quoting Ortiz v. Jordan, 

562 U.S. 180, 184 (2011)).

Here, however, the plaintiffs argue that we have appellate jurisdiction 

because they followed a “well settled” path to appeal: there was an adverse 

decision that dismissed some of their claims and they voluntarily dismissed their 

remaining claims. Plaintiffs-Appellants’ Reply Br. 21. To be sure, “a party who 

loses on a dispositive issue that affects only a portion of his claims may elect to 

abandon the unaffected claims, invite a final judgment, and thereby secure review 

of the adverse ruling.” Ali v. Fed. Ins. Co., 719 F.3d 83, 89-90 (2d Cir. 2013)
17

(alteration omitted). But in such a scenario, we have jurisdiction to review claims 

that the district court dismissed, not the claims that the party voluntarily 

abandons. Here, the district court denied summary judgment as to claims related 

to the 2013 lease extension because it determined there was a genuine dispute of 

material fact as to whether WFHC’s primary purpose was to pursue profits or to 

support the Club. The plaintiffs then voluntarily dismissed these remaining claims 

with prejudice. In this situation, we lack jurisdiction to review the voluntarily 

dismissed claims, including matters that the district court would have addressed 

at trial. See Empire Volkswagen, Inc. v. World-Wide Volkswagen Corp., 814 F.2d 90, 94

(2d Cir. 1987) (“[A]n appeal from a judgment entered upon a voluntary dismissal 

with prejudice does not bring up for review any matters that were voluntarily 

dismissed.”).

* * *

We have considered the plaintiffs’ remaining arguments, which we 

conclude are without merit. For the foregoing reasons, we DISMISS the appeal of 
18

the district court’s order denying the plaintiffs’ motion for partial summary 

judgment and otherwise AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court