Stroud Productions & Enterprises, Inc. v. BMG Music , 999 N.Y.S.2d 60 ( 2014 )

Stroud Prods. & Enters., Inc v BMG Music (2014 NY Slip Op 08778)

Stroud Prods. & Enters., Inc v BMG Music

2014 NY Slip Op 08778

Decided on December 16, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 16, 2014
Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman, Gische, JJ.

13801 601798/05

[*1] Stroud Productions and Enterprises, Inc, et al., Plaintiffs-Appellants, —

v

BMG Music, Defendant, Steven Ames Brown, Defendant-Respondent.

C. Robinson & Associates, LLC, New York (W. Charles Robinson of counsel), for appellants.

Baker & Hostetler LLP, New York (Oren J. Warshavsky of counsel), for respondent.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered October 13, 2011, which, to the extent appealed from, granted defendant Steven Ames Brown's motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.

Plaintiffs' claims for conversion and tortious interference with contract against Brown relating to unpaid producer royalties allegedly due to plaintiffs since 1992 were properly dismissed as time-barred. Plaintiffs may not argue that Brown should be equitably estopped from raising the statute of limitations defense since the issue was not raised before the motion court (see Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 276 [1988]). In any event, the argument fails because plaintiffs rely on the same acts that form the basis of their underlying claims. It is "fundamental to the application of equitable estoppel for plaintiffs to establish that subsequent and specific actions by defendants somehow kept them from timely bringing suit" (see Zumpano v Quinn, 6 NY3d 666, 674 [2006]).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 16, 2014

CLERK