         10-4900-cv
         Levermore v. Jackson
                                                                             E.D.N.Y.- C. Islip
                                                                                    08-cv-130
                                                                                 Feuerstein, J.
                                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.

 1            At a stated term of the United States Court of Appeals for
 2       the Second Circuit, held at the Daniel Patrick Moynihan United
 3       States Courthouse, 500 Pearl Street, in the City of New York, on
 4       the 16th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                      RICHARD C. WESLEY,
 8                      SUSAN L. CARNEY,
 9                           Circuit Judges,
10                      MIRIAM GOLDMAN CEDARBAUM,
11                           District Judge.*
12       _______________________________________
13
14       JOHN W. LEVERMORE,
15
16                                   Plaintiff-Appellant,
17
18                         v.                                   10-4900-cv
19
20       ANANDA DESILVA, THE ESTATE OF MACIO
21       JACKSON, KARLA M. SCOTT, EXECUTRIX,
22
23                           Defendants-Appellees.
24       ______________________________________
25
26
27       FOR APPELLANT:              Walter Theodore Charlton, Woodsboro, MD.
28
29       FOR APPELLEES:              Pro se
30


                      *
                   Judge Miriam Goldman Cedarbaum, of the United States
             District Court for the Southern District of New York, sitting
             by designation.
     1   FOR AMICUS CURIAE:    Samantha B. Lansky, Milber, Makris, Plousadis
     2                         & Seiden, LLP, Woodbury, NY.
     3
     4          Appeal from a judgment of the United States District Court

     5   for the Eastern District of New York (Feuerstein, J.).

     6          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

     7   DECREED that the judgment of the district court be AFFIRMED.

 8              Plaintiff-appellant John W. Levermore appeals from the

 9       district court’s October 2010 grant of summary judgment in favor

10       of Ananda DeSilva and the Estate of Macio Jackson and denial of

11       joinder of Joseph Albano and the Internal Revenue Service.      We

12       assume the parties’ familiarity with the underlying facts and

13       procedural history of this case.

14              We review orders granting summary judgment de novo.   Miller

15       v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003).

16       Summary judgment is appropriate only if the moving party shows

17       that there are no genuine issues of material fact and that the

18       moving party is entitled to judgment as a matter of law.     Id.

19              The district court did not err in finding that there are no

20       genuine issues of material fact relating to the timeliness of

21       Levermore’s fraud claims.   Under New York’s statute of

22       limitations, a fraud claim is time-barred if it is brought more

23       than six years after the commission of the fraud unless it is

24       brought within two years from the time the plaintiff “discovered

25       the fraud, or could with reasonable diligence have discovered

26       it.”   NY CPLR § 213(8).   Levermore’s fraud claims relate to

                                          2
 1   events in 1999 and 2000, but he did not file suit until 2008.     He

 2   argues that the district court should have tolled the limitations

 3   period because defendants’ actions prevented him from discovering

 4   defendants’ fraud.   Cf. SEC v. Gabelli, 653 F.3d 49, 59-60 (2d

 5   Cir. 2011).

 6        Equitable tolling, however, is not appropriate where a

 7   plaintiff does not act with reasonable diligence.    Ross v. Louise

 8   Wise Servs., Inc., 8 N.Y.3d 478, 517-18 (2007); see also Johnson

 9   v. Nyack Hosp., 86 F.3d 8, 11-12 (2d Cir. 1996); Dodds v. Cigna

10   Secs., Inc., 12 F.3d 346, 350 (2d Cir. 1993).

11        The district court properly concluded that there was no

12   genuine issue of material fact because Levermore was aware of the

13   basic facts—the transactions he now argues are fraudulent—between

14   2000 and 2003.   Because Levermore could have investigated at that

15   time but did not do so, he failed to act with the diligence

16   necessary for equitable tolling.    See Johnson, 86 F.3d at 12.

17   Accordingly, the district court properly denied Levermore’s fraud

18   claims as time-barred.

19        Levermore does not challenge the district court’s dismissal

20   of his contract claims for failure to meet the amount in

21   controversy required for diversity jurisdiction.

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

23                                  FOR THE COURT:
24                                  Catherine O’Hagan Wolfe, Clerk




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