18-3114-cv
Lawrence Union Free School District v. Colonial Surety Company

                                   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 30th day of September, two thousand nineteen.

PRESENT:            JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                    CHRISTOPHER F. DRONEY,
                                 Circuit Judges.


LAWRENCE UNION FREE SCHOOL DISTRICT,

                              Plaintiff-Appellant,                              18-3114-cv

                              v.

COLONIAL SURETY COMPANY,

                              Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                                             Christopher G. Kirby, Minerva &
                                                                     D’Agostino, P.C., Cold Spring Harbor,
                                                                     NY.

FOR DEFENDANT-APPELLEE:                                              Michael C. Delaney, McElroy, Deutsch,
                                                                     Mulvaney & Carpenter, LLP, Morristown,
                                                                     NJ.




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       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Steven I. Locke, Magistrate Judge).1

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the September 21, 2018 judgment of the District Court be
and hereby is AFFIRMED.

       Plaintiff-Appellant Lawrence Union Free School District (“School District”) appeals from a
judgment of the District Court granting summary judgment to Defendant-Appellee Colonial Surety
Company (“Colonial”). The District Court held that the School District’s action to recover payment
on a performance bond issued by Colonial in connection with a construction project is time-barred
pursuant to the terms of the bond. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

         As a threshold matter, the parties agree that the School District’s breach-of-contract claim is
governed by New York law and that the applicable limitations period for that claim is two years
from the date on which the non-party contractor stopped working on the construction project. The
parties further agree that the contractor stopped working on November 4, 2010, and that the School
District brought this action five years later, on November 23, 2015. Accordingly, the principal
dispute on appeal is whether the two-year limitations period was tolled under the doctrine of
equitable estoppel, as the School District contends.

          On review, we hold that the District Court properly granted Colonial’s motion for summary
judgment. We agree with the District Court that the School District’s action is time-barred and that
the School District has failed to establish a basis to toll the limitations period. The School District
was required to commence this action by no later than November 4, 2012. It did not do so. More
critically, the record lacks any evidence demonstrating that Colonial’s actions prior to November
2012 kept the School District from timely filing suit. See Zumpano v. Quinn, 6 N.Y.3d 666, 674 (2006)
(“It is therefore 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.”
(citation omitted)). In the absence of such evidence, the District Court correctly held that the School
District failed to satisfy its burden of proving that Colonial’s actions prior to November 4, 2012
were either fraudulent or calculated to mislead and delay the commencement of this action. See
Dowdell v. Greene Cty., 788 N.Y.S.2d 439, 440-41 (3d Dep’t 2005) (requiring plaintiff to show “that he
or she failed to commence a timely action due to a fraud, deception or misrepresentation
perpetrated by defendant . . . or the defendant engaged in conduct which was calculated to mislead


1
 This action was assigned to the magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c)(1),
which allows him, upon consent of the parties, to “conduct any or all proceedings in a jury or
nonjury civil matter and order the entry of judgment in the case.”

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the plaintiff, and the plaintiff in reliance thereon failed to sue in time” (internal quotation omitted)).
As a result, the School District’s invocation of the doctrine of equitable estoppel lacks merit.

        Because we agree with the District Court that the School District’s untimeliness could not be
excused on equitable estoppel grounds, we do not address Colonial’s purported obligations under
the performance bond.

        We have reviewed all of the remaining arguments raised by the School District on appeal and
find them to be without merit. For the foregoing reasons, we AFFIRM the September 21, 2018
judgment of the District Court.



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




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