The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 were read on this motion to/for DISMISS DECISION + ORDER ON MOTION Carol Bamonte, as Administrator for the Estate of Kathleen Durst, commenced this wrongful death action to recover for the alleged murder of Kathleen Durst by her then-husband, defendant Robert Durst, on January 31, 1982. Defendant Robert Durst now moves pursuant to CPLR 3211(a)(4) and (5) seeking dismissal of this action based on the statute of limitations and the pendency of identical claims in an action in Nassau County, or, in the alternative, to consolidate this action with the Nassau County action pursuant to CPLR 602. With respect to the statute of limitations, defendant argues that this action should be dismissed as time-barred. In order to dismiss a claim a claim based on the statute of limitations, defendant must make a prima facie showing that the claim is untimely. HSBC Bank USA v. Kirschenbaum, 159 A.D.3d 506, 506 (1st Dep’t 2018). Under New York Estates Powers & Trusts Law (“EPTL”) §5-4.1, a wrongful death action “must be commenced within two years after the decedent’s death.” EPTL §5-4.1(1). It is well-established both under the plain language of the statute and the relevant case law, that the wrongful death claim accrues at the time of decedent’s death. EPTL §5-4.1(1); see Greenwald v. City of New York, 2012 WL 6962297, at *8 (E.D.N.Y. July 19, 2012) (citing cases). Here, the First Department has ruled that Kathleen Durst’s date of death is January 31, 1982, and plaintiff does not dispute this finding. Affirmation of Joshua A. Siegel dated April 29, 2019, Exh. E. Given that Kathleen Durst died in 1982 and this action was not commenced until 2019, defendant has met his prima facie burden of showing that the action is time-barred. HSBC Bank USA, 159 A.D.3d at 506. The burden now shifts to plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or an exception to the limitations period is applicable. Id. Plaintiff primarily relies on the criminal action exception to the two-year statute of limitations which is found in EPTL §5-4.1(2). This provision provides in pertinent part that where “a criminal action has been commenced against the same defendant with respect to the event or occurrence from which [the wrongful death claim] arises, the personal representative of the decedent shall have at least one year from the termination of the criminal action…in which to maintain an action….” EPLT §5-4.1(2). This provision does not toll the two-year statute of limitations for wrongful death actions but rather creates “an independent statute of limitations to grant a new time period within which a personal representative may bring a civil action against the crime’s perpetrator.” Jordan v. Britton, 128 A.D.2d 315, 319 (4th Dep’t 1987). Plaintiff argues that the statute of limitations provided in EPTL §5-4.1(2) is applicable here based on a criminal action pending against defendant Robert Durst in California for his alleged murder of Susan Berman, who he allegedly believed was a witness to his alleged murder of Ms. Durst. However, the California criminal action and this action for wrongful death clearly arise from different events. The criminal action arises from Mr. Durst’s alleged murder of Ms. Berman in 2000 while this action arises from Mr. Durst’s alleged murder of Ms. Durst in 1982. As such, the statute of limitations set forth in EPTL 5-4.1(2) is inapplicable. See Christodoulou v. Terdeman, 262 A.D.2d 595, 596 (2d Dep’t 1999); Clemens v. Nealon, 202 A.D.2d 747, 748-49 (3d Dep’t 1994); Robinson v. Franklin General Hosp., 160 Misc.2d 893, 896 (Sup. Ct. Nassau Cty. 1994). Plaintiff relies heavily on the fact that Mr. Durst has been charged with a violation of California Penal Code Section 190.2(A)(10), the special circumstance of murder of a witness charge, in the California action to argue that both actions arise from Mr. Durst’s alleged murder of Ms. Durst. In support, plaintiff argues that the prosecutor in the California action has made clear that this charge requires the prosecution “to prove that Defendant killed Kathie,” and the Los Angeles County District Attorney’s Office will “be in essence trying the murder of Kathie Durst.” Plaintiff’s Memorandum of Law in Opposition to Defendant Durst’s Motion to Dismiss, p. 5. However, these statements are not supported by plaintiff’s citations to the record. Nor does the law support plaintiff’s argument. The elements of the witness-murder special circumstances charge under §190.2(a)(10) are: “(1) a victim who has witnessed a crime prior to, and separate from, the killing; (2) the killing was intentional; and (3) the purpose of the killing was to prevent the victim from testifying about the crime he or she had witnessed.” People v. Clark, 52 Cal.4th 856, 952 (Cal. 2011) (internal citations and quotations omitted). Further, in order to be charged with witness-murder charge, “the murder victim need not have been an eyewitness to the crime for the special circumstances to apply, so long as the defendant believed he was exposed to criminal prosecution and intentionally killed the victim to prevent him or her from testifying in an anticipated criminal proceeding.” Clark, 52 Cal.4th at 952. Indeed, at a preliminary hearing in October 2018, the trial judge in the California case confirmed that the prosecutor does not need to prove the underlying murder case in order to convict Mr. Durst of violating California Penal Code §190.2(a)(10). Affirmation of Robert Abrams dated June 18, 2019, Exh. F, p. 60 (“I don’t think the People have to prove the crime, I think they have to prove that she is a witness to a crime.”). Thus, contrary to plaintiff’s contention, the prosecutor in the criminal action need not prove that Mr. Durst murdered Ms. Durst in order to prosecute his case against Mr. Durst for the witness killing of Ms. Berman. Although the prosecutor may submit evidence to show that Mr. Durst murdered Ms. Durst, this is not a determination that the jury needs to reach in order to convict Mr. Durst of a violation of §190.2(a)(10). Clark, 52 Cal.4th at 952; see also Cal. Jury Instr. Crim. 8.81.10 Special Circumstances — Murder of a Witness to a Crime (Spring 2012 Revision). Indeed, the fact that defendant Durst has been charged with the murder of a witness to a crime undermines plaintiff’s argument that the two actions arise from the same event. In order to be convicted of this charge, California law requires that the victim witness a crime that occurred prior to, and separate from, the killing of the witness. Clark, 52 Cal.4th at 952. “A crime is not ‘prior to, and separate from, the killing’ if it is part of one continuous transaction or the same continuous criminal transaction.” People v. San Nicolas, 34 Cal.4th 614, 655 (Cal. 2005) (citing People v. Benson, 52 Cal.3d 754, 785 [Cal. 1990]). Thus, the charge itself requires that the two events arise from separate criminal transactions. Accordingly, plaintiff’s reliance on this charge fails to bring the criminal action within the ambit of EPTL 5-4.1(2). This conclusion is further supported by the legislative history of EPTL 5-4.1(2), which was enacted in order to unburden the personal representative from participating in separate legal proceedings based on almost identical facts and to enable the personal representative to use the criminal judgment of conviction as proof of facts asserted in civil court. Jordan v. Britton, 128 A.D.2d 315, 318-19 (4th Dep’t 1987). Neither of these circumstances is applicable here. There is no contention that Carol Bamonte, the personal representative of Kathleen Durst’s estate, will need to participate in the criminal action. Further, Mr. Durst’s conviction in the criminal action will not estop him from disputing his involvement in Ms. Durst’s murder in this action as this is not a fact that will actually and necessarily be decided in the criminal action. Launders v. Steinberg, 39 A.D.3d 57, 64 (1st Dep’t 2007) (“It is well settled law that collateral estoppel may be employed in a civil action to preclude relitigation of issues actually and necessarily determined in a prior criminal action.”). Although EPTL §5-4.1(2) may be applicable if defendant Durst is charged with the murder of Kathleen Durst, this has not yet occurred. Accordingly, the action is time-barred under EPLT 5-4.1(1) as it was not commenced within two years of Ms. Durst’s death. In the alternative, plaintiff argues that Mr. Durst should be equitably estopped from asserting the statute of limitations as a defense in this action. Pursuant to the court’s inherent equity powers, a court can preclude a defendant from asserting the statute of limitations defense when the defendant intentionally conceals from the plaintiff a cause of action until after the statute of limitations has expired. Simcuski v. Saeli, 44 N.Y.2d 442, 448-49 (1978). It is fundamental to the application of this doctrine for the plaintiff to establish that subsequent and specific actions by the defendant prevented plaintiff from commencing the action in a timely manner. Zumpano v. Quinn, 6 N.Y.3d 666 (2006). Further, equitable estoppel will not apply when the plaintiff fails to exercise reasonable diligence to ascertain whether he possesses a cause of action against the defendant. McDonald v. Edelman & Edelman, P.C., 118 A.D.3d 562, 563 (1st Dep’t 2014). Here, plaintiff failed to establish that the doctrine of equitable estoppel bars defendant from asserting the statute of limitations defense to the wrongful death claim. The assertions by plaintiff’s counsel that defendant manipulated the press, multiple law enforcement agencies and the court from finding out that Ms. Durst was dead, and that Mr. Durst allegedly murdered her, are vague, conclusory, and insufficient to support an equitable estoppel argument. See Gleason v. Spota, 194 A.D.2d 764, 765 (2d Dep’t 1993). Moreover, even if true, plaintiff fails to show that Ms. Durst’s family reasonably relied on such information for over thirty years and that they did not suspect that Mr. Durst allegedly killed Ms. Durst until the airing of the documentary The Jinx in 2015, in which Mr. Durst allegedly confesses to the crime. See McDonald, 118 A.D.3d at 563. Indeed, such an argument is refuted by plaintiff’s own motion papers, in which he states that “it has always been speculated that [Robert] Durst may have been involved in Kathie’s murder….” Plaintiff’s Memorandum of Law in Opposition to Defendant Durst’s Motion to Dismiss, p. 10. Finally, plaintiff does not allege any fiduciary relationship between Ms. Durst’s family and defendant, which is required to apply the doctrine. Bacon v. Nygard, 140 A.D.3d 577, 577 (1st Dep’t 2016). Thus, plaintiff has failed to show that the equitable estoppel doctrine bars defendant from asserting the statute of limitations defense in this action. Accordingly, it is ORDERED that the motion to dismiss is granted and the complaint is dismissed, with costs and disbursements awarded to defendant, without prejudice to refiling in the event that a criminal action is commenced against Robert Durst pertaining to the death of Kathleen Durst; and it is further ORDERED that the Clerk shall enter judgment accordingly. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: August 6, 2019
