A threat in 1994 does not toll the statute for 22 years:
United States Court of Appeals, Second Circuit.
Carol OVERALL, Plaintiff-Appellant, v. ESTATE OF L.H.P. KLOTZ, Defendant-Appellee.
No.?689, Docket 94-7407.
Decided: March 29, 1995
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Duress tolling, on the other hand, examines the parties' conduct only to determine whether that conduct constitutes a continuation of the underlying tort. ? New York law requires that a plaintiff be subjected to a “continuous wrong” for duress tolling to be appropriate. ?Cullen v. Margiotta, 811 F.2d 698, 722 (2d Cir.) (tolling limitations period as long as plaintiffs were subjected to ongoing extortion), cert. denied sub nom. Nassau County Republican Comm. v. Cullen, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987); ?Kamonitsky v. Corcoran, 97 Misc. 384, 388, 161 N.Y.S. 756, 759 (Sup.Ct.App.Term 1st Dep't 1916) (same), rev'd on other grounds sub nom. ?Kamenitsky v. Corcoran, 177 A.D. 605, 164 N.Y.S. 297 (1st Dep't 1917) (finding insufficient facts pleaded to support claim of tolling). ? In Kamenitsky, the Appellate Division for the First Department rejected a claim of duress tolling by a plaintiff who made payments to the defendant for eleven years, purportedly under the duress of a single original threat. ? The court required the plaintiff to allege some further conduct by the defendant in order to establish a continuous wrong: ?“Even if the first payment were made under duress, it could not be successfully claimed that, where not another word ever passed between the parties, each monthly payment continuing thereafter for 11 years was made under duress of the original threat.” ?Kamenitsky, 164 N.Y.S. at 301.
?“Duress” involves both threats or force by the defendant, and the submission of the plaintiff's free will to those threats. ? Both elements of duress must continue in order for a duress-based tort to persist as a “continuous wrong.” ? As shorthand for this rule, courts have explained that duress tolling is available only when duress is an element of the cause of action alleged. ?Cullen, 811 F.2d at 722 (permitting tolling because duress is element of extortion); ?Day v. Moscow, 955 F.2d 807, 813 (2d Cir.) (rejecting tolling because duress is not element of false arrest or unlawful search and seizure), cert. denied, 506 U.S. 821, 113 S.Ct. 71, 121 L.Ed.2d 37 (1992); ?Schmidt v. Bishop, 779 F.Supp. 321, 330-31 (S.D.N.Y.1991) (rejecting duress tolling because duress is not element of negligence, fraud or malpractice); ?Baratta v. Kozlowski, 94 A.D.2d 454, 464 N.Y.S.2d 803, 806-07 (2d Dep't 1983) (rejecting tolling because duress is not element of embezzlement).
?Duress tolling is not triggered, however, simply because duress constitutes an element of the underlying tort. ? In order to constitute a “continuous wrong” that tolls the limitations period, the tortious conduct itself must continue. ? See, e.g., Pacchiana v. Pacchiana, 94 A.D.2d 721, 721, 462 N.Y.S.2d 256, 257 (2d Dep't 1983) (rejecting duress tolling in action to rescind antenuptial agreement, because coercion ceased upon execution of the agreement). ? Furthermore, the tortious conduct must continue uninterrupted. ? In the seminal case of Piper v. Hoard, 107 N.Y. 67, 71, 13 N.E. 632 (1887), for example, the New York Court of Appeals would not permit tolling for duress where the defendant coerced the plaintiff into signing over a deed, and later forced him into forgoing a lawsuit to rescind the deed. ? Because the two episodes of coercion were separate, the limitations period as to the first was not tolled by the second. ? See also Gallas v. Greek Orthodox Archdiocese, 154 Misc.2d 494, 502, 587 N.Y.S.2d 82, 88 (Sup.Ct.N.Y.County 1991) (rejecting duress tolling where coercion allegedly ceased in 1983 and resumed in 1985).
?The rationale behind duress tolling is that certain torts occur over a stretch of time, not just at the single identifiable moment when the cause of action accrues. ? When a plaintiff is subject to a “continuous wrong,” the moment of accrual still determines when judicial relief is first available, but equity begins to run the limitations period from when the tortious conduct ceases. ? We presume that a plaintiff is unable to file suit so long as-but no longer than-she is subjected to a duress-based tort. ?
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