13-3999-cv
Corporate Trade, Inc. v. Golf Channel

                                        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 29th
day of April, two thousand fourteen.

PRESENT:
            RALPH K. WINTER,
            BARRINGTON D. PARKER,
            PETER W. HALL,
                        Circuit Judges.
____________________________________________________

CORPORATE TRADE, INC.,

                               Plaintiff-Appellant,

                    v.                                                            13-3999-cv

GOLF CHANNEL,

                               Defendant-Appellee.

____________________________________________________

FOR APPELLANT:                           LOUIS HARVEY MIRON, ESQ., Cranford, New Jersey.

FOR APPELLEES:                           STEVEN GERBER, ESQ., Gonzalez Saggio & Harlan LLP, New York,
                                         New York.




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

New York (P. Kevin Castel, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Corporate Trade, Inc. (“CTI”) appeals from the judgment of the district

court, entered on September 25, 2013, granting Defendant-Appellee Golf Channel’s motion to

dismiss CTI’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We

assume the parties’ familiarity with the underlying facts, the procedural history, and the issues

presented for review. Having considered all of CTI’s arguments, we affirm for substantially the

same reasons stated in the district court’s decision.

        We note, however, that “[w]hile a statute of limitations defense may be raised in a motion to

dismiss . . . such a motion should not be granted unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Ortiz v. Cornetta,

867 F.2d 146, 148 (2d Cir. 1989) (emphasis removed) (quotation and internal quotation marks

omitted). Although CTI argues for both equitable estoppel and equitable tolling on appeal, New

York law does not distinguish between the doctrines and applies the same analysis. See, e.g., Abbas v.

Dixon, 480 F.3d 636, 642 (2d Cir. 2007); In re Fischer, 308 B.R. 631, 656 (Bankr. E.D.N.Y. 2004)

(“Unlike federal law, however, New York state law does not differentiate between doctrines of

fraudulent concealment (equitable tolling) and equitable estoppel.”).             Because the “act of

concealment underlying the estoppel claim is the same act which forms the basis of plaintiff’s

underlying substantive cause of action,” equitable estoppel is not applicable in this case. Kaufman v.

Cohen, 760 N.Y.S.2d 157, 167 (1st Dep’t 2003); see also Smith v. Smith, 830 F.2d 11, 13 (2d Cir. 1987);

Abercrombie v. Andrew Coll., 438 F. Supp. 2d 243, 267 (S.D.N.Y. 2006).




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Accordingly, the judgment of the district court is hereby AFFIRMED.


                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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