    17-1071
    Bryant v. Broad. Music Inc., et al.


                              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 ASUMMARY ORDER@). A PARTY CITING TO 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 9th day of May, two thousand eighteen.

    PRESENT:
                JOHN M. WALKER, JR.,
                DENNIS JACOBS,
                      Circuit Judges,
                KATHERINE B. FORREST,*
                      District Judge.
    _____________________________________

    Anne Bryant,
                                  Plaintiff-Appellant,

                        v.                                                     17-1071

    Broadcast Music Inc., Hasbro Inc.,
    DBA Starwild Music Inc., DBA Wildstar
    Music Inc.,

                                  Defendants-Appellees,

    John Does, 2-10, Jane Does, 2-10,
    ABC Corporations, 1-10, Thomas L Griffin, Jr.,


    * Judge Katherine B. Forrest, of the United States District Court for the Southern District of New
    York, sitting by designation.

                                                          1
"Tom", William M. Dobishinski, "Bill",
Commisioner of Social Security Admnistration,


                  Defendants.
_____________________________________

FOR PLAINTIFF-APPELLANT:                           Anne Bryant, pro se, Stonypoint, NY.

FOR BROADCAST MUSIC INC.:                          James C. Fitzpatrick, Hughes Hubbard & Reed
                                                   LLP, New York, NY.

FOR HASBRO INC.:                                   Sandra A. Crawshaw-Sparks, Russell T. Gorkin,
                                                   Evelyn Yue Pang, Proskauer Rose LLP, New
                                                   York, NY.


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

New York (Swain, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED and Appellant’s motion for
reconsideration of the denial of her request for oral argument is DENIED.

       Appellant Anne Bryant, pro se, appeals from the judgment of the District Court for the
Southern District of New York dismissing her various tort and conspiracy claims against Broadcast
Music Inc. (“BMI”) and Hasbro. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.

        Bryant, a composer, has registered musical works with BMI since the 1980s, with Hasbro
serving as her publisher. Hasbro retained William Dobishinski, a lawyer, to register Bryant’s
works with BMI, collect her royalties, and distribute those royalties to her. Bryant’s 2014 suit
alleges that due to a clerical error by BMI in recording her Social Security Number (“SSN”), none
of her income was properly recorded or credited to her account between 1985 and 1992. She
further alleges that beginning in 1990, many of her works were misattributed to other composers,
that in 1989 Dobishinski forged a power of attorney form by which he withheld a large share of
her royalties, and that as a result of the failure to credit her royalties to her SSN, she lost track of
her finances and was unable to uncover the various frauds until 2013.

        Bryant alleges negligence and fraudulent concealment by BMI based on its failure to
correct her SSN and its misattribution of her work; fraud against Hasbro for the lost royalties from

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1985 to 1992, and conversion based on the misattribution of her work; and a conspiracy by BMI
and Hasbro to commit those torts. The district court dismissed her claims as time-barred.

         We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6), accepting all
factual allegations as true and drawing all reasonable inferences in plaintiff’s favor. Biro v. Condé
Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court must accept as true all the
factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678.

        “Although the statute of limitations is ordinarily an affirmative defense that must be raised
in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the
defense appears on the face of the complaint.” Ellul v. Congregation of Christian Bros., 744 F.3d
791, 798 n.12 (2d Cir. 2014). The New York state statute of limitations governs this diversity
action. Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998).

        Under New York law, negligence claims are subject to a three-year statute of limitations.
See N.Y. C.P.L.R. § 214(5). A negligence claim accrues “when the claim becomes enforceable,
i.e., when all elements of the tort can be truthfully alleged in a complaint,” and has historically
been the time of the plaintiff’s injury. Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 432-33
(1993); see Syms v. Olin Corp., 408 F.3d 95, 109 (2d Cir. 2005). It accrues notwithstanding a
plaintiff’s ignorance of or failure to discover the injury. Kronos, Inc. v. AVX Corp., 81 N.Y.2d
90, 94 (1993) (The date of injury, “rather than . . . discovery of the injury by the plaintiff, is the
relevant date for marking accrual.”). Bryant’s complaint alleged that BMI’s negligent record
keeping prevented her from collecting her full royalties from 1985 until 1992. Thus, her claim
accrued in 1992 and became untimely no later than 1995.

        Bryant invokes the continuing wrong doctrine, arguing that she continued to be denied
royalties for the misattributed works. Under that doctrine, a series of continuing wrongs may toll
the period of limitations until the commission of the last wrongful act. Henry v. Bank of Am., 147
A.D.3d 599, 601 (1st Dep’t 2017) (citing Selkirk v. State, 249 A.D.2d 818, 819 (3d Dep’t 1998)).
However, “[t]he doctrine ‘may only be predicated on continuing unlawful acts and not on the
continuing effects of earlier unlawful conduct. The distinction is between a single wrong that has
continuing effects and a series of independent, distinct wrongs.’” Id. (quoting Doukas v. Ballard,
No. 9267-11, 2013 WL 2129137 (N.Y. Sup. Ct. May 1, 2013) (unpublished)). The doctrine is
“inapplicable where there is one tortious act complained of since the cause of action accrues in
those cases at the time that the wrongful act first injured plaintiff and it does not change as a result
of ‘continuing consequential damages.’” Id. (quoting Town of Oyster Bay v. Lizza Indus., Inc.,
22 N.Y.3d 1024, 1032 (2013)). Bryant’s claim is predicated on BMI’s failure to note that her
work was misattributed in 1985, and does not assert a negligent acts after 1985. Accordingly, the
continuing wrong doctrine is inapplicable; the claim became enforceable in 1990 when she was
injured; and it expired three years later in 1993.

                                                   3
        The New York statute of limitations for fraud claims is six years, or two years from the
time the plaintiff discovered or could have discovered the fraud. Sargiss v. Magarelli, 12 N.Y.3d
527, 532 (2009). Bryant argues that BMI fraudulently concealed the fact that it had been using
an incorrect SSN, and that Dobishinski defrauded her by accepting royalties credited to an
incorrect SSN. Her claims thus arose solely out of the use of an incorrect SSN for her royalties
from 1985 until 1992. Bryant argues that the statute of limitations was tolled because, even with
due diligence, she could not have identified the fraud before 2013. But Bryant also alleges that
she received a letter from BMI explaining that her SSN in its records was incorrect in 1991. She
was therefore on notice of the wrong, and able to identify the alleged tortious conduct, as of that
date. In addition, her complaint alleged that she was able to determine the withholding of her
royalties by examining a tax assessment from 1992. No reason appears why she was unable to
review this document and reach this conclusion until 2013. Accordingly, her fraudulent
concealment and fraud claims based on the SSN error are barred by the statute of limitations.

        Bryant also asserts a claim of fraudulent concealment against BMI for its failure to disclose
the misattribution of her work. However, her second amended complaint alleges that she stopped
receiving certain royalties in 1990. She was thus on notice of this claim at that time. In any
event, state court records attached to Bryant’s complaint reveal she was aware of the misattribution
in 2001. The statute of limitations therefore expired well before she commenced this action.
Because the underlying fraudulent concealment claims are meritless, Bryant’s conspiracy claims
premised on the substantive tort of fraudulent concealment also fail. See Schlotthauer v. Sanders,
153 A.D.2d 731, 732 (2d Dep’t 1989) (“[C]onspiracy is not an independent tort, and is time barred
when the substantive tort underlying it is time-barred.”).

        Bryant’s conversion claim concerning Dobishinki’s retention of her royalties and her
“copyright as conversion” claim regarding the misattribution of her work are also time-barred.
Under New York law, the statute of limitations for a claim of conversion is three years. See N.Y.
C.P.L.R. § 214(3). The period begins to run from the time of the tort, rather than from the time
of discovery. Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex., 87 N.Y.2d 36,
44 (1995). Bryant’s conversion claim based on unpaid royalties accrued in 1992 because she
alleged no additional tortious conduct by Dobishinski after that year. Her conversion claim based
on Dobishinski’s misattribution of her work accrued in 1990, when she stopped receiving royalties
due to the misattribution. As discussed above, the continuing wrong doctrine is inapplicable in
the case of a single tortious act, even one that produces continuing damages. See Henry, 147
A.D.3d at 601. The statute of limitations for Bryant’s conversion claims against Hasbro for
misattribution and retention of royalties therefore expired in 1993 and 1995, respectively.

       Lastly, Bryant’s motion for reconsideration of the denial of oral argument is meritless.
We may decline to hear oral argument after reviewing the record and the parties’ briefs, and our
decision to do so here was appropriate. See Fed. R. App. P. 34(a)(2).



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       We have considered Bryant’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court and DENY Appellant’s motion for
reconsideration of the denial of her request for oral argument.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




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