MEMORANDUM OPINION AND ORDER

VALERIE CAPRONI, District Judge.

This action concerns the disputed ownership of a Chinese artifact, the Zhou Zha Hu ("Vessel"), a bronze wine vessel from 10th to 9th Century B.C. Am. Compl. (Dkt. 89) ¶ 9. Defendant Sotheby's, Inc. commenced an interpleader action against Wei Su and Hai Juan Wang (Su's agent) (collectively "Su") and Yeh Yao Hwang ("Yeh"). Both of the interpleader defendants have asserted ownership claims to the Vessel, which had been consigned by Su to Sotheby's for auction. See Sotheby's Answer and Counterclaim (Dkt. 101) at 9-10. Yeh has filed a cross-claim against Plaintiffs for conversion; Su has in turn cross-claimed against Yeh for slander of title. See Yeh Answer and Cross-Claims (Dkt. 104) at 7; Su Answer to Cross-Claim and Cross-Claim (Dkt. 105) at 5. Before the Court now are Yeh's motion to dismiss Su's crossclaim for slander of title, which is GRANTED, and Su's motion for judgment on the pleadings, which is DENIED.

BACKGROUND

On or about July or August 2014, Plaintiffs consigned the Vessel to Sotheby's for auction. Am. Comp. (Dkt. 89) ¶ 14; Sotheby's Answer and Counterclaim (Dkt. 101) at 11. On September 3, 2014, Yeh contacted Sotheby's and asserted an ownership interest in the Vessel. See Sotheby's Answer and Counterclaim (Dkt. 101) ¶ 13; Yeh Answer and Cross-Claim (Dkt. 104) ¶ 13. Sotheby's withdrew the Vessel from auction and retained possession pending determination of the Vessel's true owner. See Am. Compl. (Dkt. 89) ¶¶ 16-19; Sotheby's Answer and Counterclaim (Dkt. 101) ¶¶ 16-19.

On June 17, 2017, Su commenced this action against Sotheby's for, among other relief, return of the Vessel. Compl. (Dkt. 1) at 9. Sotheby's then commenced an interpleader action against Su and Yeh to require them to litigate their conflicting ownership claims; Sotheby's was eventually discharged from this action as a disinterested stakeholder. Dkt. 112. Sotheby's has continued to retain possession of the Vessel pending the resolution of this dispute. Id.

Because Yeh failed to respond to Sotheby's interpleader action, this Court issued an order to show cause why default judgment should not be entered in favor of Su, awarding ownership and possession of the Vessel. Dkt. 68. On March 22, 2019, after Sotheby's engaged in painstaking attempts to serve him, Yeh, acting pro se, appeared at a show-cause hearing before this Court. Dkt. 82.

Yeh thereafter retained counsel; he has now answered the interpleader complaint, asserted a conversion claim against Su, and sought a declaratory judgment that he is co-owner of the Vessel. See Yeh Answer and Cross-Claims (Dkt. 104) at 7-8. According to Yeh, he has been co-owner of the Vessel since at least May 22, 2007, when the Shanghai High People's Court ruled that Yeh and a non-party to this case, Zhang Shenbao ("Zhang"), were co-owners of the Vessel and that Zhang had the exclusive right to possess the Vessel. See id. ¶ 13. Yeh claims that, as co-owner of the Vessel, he had the right to veto any transfer of ownership of the Vessel by Zhang, and that Su had knowingly acquired the Vessel from Zhang without Yeh's informed consent. See id. ¶¶ 17-20. Yeh further alleges that Su consigned the Vessel to Sotheby's without Yeh's consent. See id. ¶¶ 24, 28. According to Yeh, Su acted in bad faith by declining to mediate the ownership dispute with Yeh directly and instead commencing a quiettitle action in the Henan Luoyang Intermediate People's Court. By not naming Yeh as a party to the Henan quiet title action, Su allegedly prevented Yeh from participating in the lawsuit or learning about the conversion. Id. ¶¶ 35, 37-38; Sotheby's Answer and Counterclaim (Dkt. 101) ¶ 16; Su Answer to Cross-Claim and Cross-Claim (Dkt. 105) ¶¶ 35, 37-38.

Su has in turn cross-claimed against Yeh for slander of title, claiming that Yeh knew that Su had rightful title to the Vessel and that Yeh made an ownership claim, in bad faith, to prevent the sale of the Vessel by Sotheby's. Id. ¶¶ 58-62.

Yeh has moved to dismiss Su's cross-claim, and Su has moved for judgment on the pleadings. Both sides' arguments rest almost exclusively on the limitations periods for conversion and slander-of-title claims under New York law.

DISCUSSION

"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., 774 F.3d 791, 798 n. 12 (2d Cir. 2014) (citing Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008)); see also McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). "The same standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R. Civ. P. 12(c) motions for judgment on the pleadings." Eastman Kodak Co. v. Henry Bath LLC, 936 F.3d 86, 93 (2d Cir. 2019) (citation omitted). Thus, as to both Yeh's motion to dismiss and Su's motion for judgment on the pleadings, the Court must determine whether the relevant pleading has stated "a claim to relief that is plausible on its face," "interpret[ing] the allegations in the light most favorable to the [non-moving party]" and "drawing reasonable inferences in [the non-moving party's] favor." Id.

"Where jurisdiction rests upon diversity of citizenship, a federal court sitting in New York must apply the New York choice-of-law rules and statutes of limitations."1 Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998). New York law "provides that `when a nonresident plaintiff sues upon a cause of action that arose outside of New York, the court must apply the shorter limitations period, including all relevant tolling provisions, of either: (1) New York; or (2) the state where the cause of action accrued.'" Thea v. Kleinhandler, 807 F.3d 492, 497 (2d Cir. 2015) (quoting N.Y. C.P.L.R. § 202). In other words, regardless of where Yeh's and Su's claims accrued, they are untimely if they are beyond the limitations periods applicable in New York. See id. As evidenced by their briefing, the parties agree that they are bound by New York law, whether procedural or substantive.

A. Su's Cross-Claim for Slander of Title

To state a claim for slander of title, the claimant must plausibly allege that the offending party "maliciously" used false statements to cast doubt upon another's property interest, causing "special damages," typically in the form of a lost sale resulting from the cloud on the claimant's title. See Rosenbaum v. City of New York, 8 N.Y.3d 1, 12 (2006) ("Special damages are an element of a cause of action for slander of title based upon the recording of an unfounded claim. . . . The most usual manner in which a third person's reliance upon disparaging matter causes pecuniary loss is by preventing a sale to a particular purchaser." (citations and quotation marks omitted)); Hanbidge v. Hunt, 183 A.D.2d 700, 701 (2d Dep't 1992) ("The wrongful filing for record of a document which casts a cloud upon another's title to or interest in realty is clearly such an act of publication as to give rise to an action for slander of title, if provable damages result."); see also Kendall v. Stone, 5 N.Y. 14, 19 (1851) ("To maintain the action the words must not only be false, but they must be uttered maliciously and be followed as a natural and legal consequence by a pecuniary damage to the plaintiff, which must be specially alleged in the declaration. . . ." (citations omitted)). Because the existence of special damages is an element of the cause of action, the claim begins to accrue "not from the date of the [false statement], but from the time a prospective sale is lost because of the cloud on plaintiff's title."2 See Hanbridge, 183 A.D.2d at 701. Assuming without deciding that a claim for slander of title may extend beyond title to land,3 Su's claim is barred by the one-year statute of limitations. See id.; see also Rosenbaum, 8 N.Y.3d at 12.

Su's cross-claim against Yeh alleges that Yeh made an ownership claim to Sotheby's in September 2014. Su Answer to Cross-Claim and Cross-Claim (Dkt. 105) ¶ 58. Yeh's assertion of ownership allegedly prevented Sotheby's from proceeding with the auction and foreclosed the possibility that any reputable auction house would even attempt to sell the Vessel. Id. ¶ 61. Yeh's claim also caused Sotheby's, on October 16, 2014, to rebuff Su's demand that the Vessel be returned to Su's custody. Am. Compl. (Dkt. 89) ¶ 18. Therefore, Su likely incurred special damages in September 2014, when the auction was short-circuited, or, at the very latest, on October 16, 2014, when Yeh's allegedly fraudulent claim deprived Su of the right to possess the Vessel. Accordingly, any claim for slander of title expired by October 16, 2015. Because Su did not allege slander of title until June 3, 2019, the claim is nearly four years too late.4 See Su Answer to Cross-Claim and Cross-Claim (Dkt. 105).

Su contends that the claim is timely because he continues to suffer damages, in the form of attorney's fees. Su Opp. to Mot. to Dismiss (Dkt. 135) at 5. He cites no authority or rationale for the proposition that ongoing harm continuously resets the limitations period—particularly when the damages (attorney's fees) derive from the same initial injury that Su allegedly suffered when Yeh halted the Sotheby's auction and interfered with Su's purported right to possess the Vessel. Indeed, under New York law, the "continuing wrong" exception is unavailable when a single tortious act causes "continuing consequential damages." Henry v. Bank of Am., 147 A.D.3d 599, 601 (1st Dep't 2017) ("The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs." (citation omitted)); see also Maloul v. New Colombia Res., Inc., No. 15-CV-8710, 2017 WL 2992202, at *5 (S.D.N.Y. July 13, 2017) ("Thus, `where a plaintiff asserts a single breach—with damages increasing as the breach continued—the continuing wrong theory does not apply.'" (quoting Henry, 147 A.D.3d at 601-02 and citing Kahn v. Kohlberg, Kravis, Roberts & Co., 970 F.2d 1030, 1039 (2d Cir. 1992))). Under Su's theory, there would effectively be no statute of limitations, as a claimant can almost always allege some form of continuously accruing damages, such as ongoing emotional distress, pre-judgment interest, or attorney's fees.

In sum, Yeh's statute-of-limitations defense is clear on the face of Su's pleadings and forecloses Su's claim for slander of title.

B. Su's Motion for Judgment on the Pleadings

"The three-year Statute of Limitations period, applicable in conversion and replevin actions, ordinarily runs from the date the conversion takes place." Berman v. Goldsmith, 141 A.D.2d 487, 487 (2d Dep't 1988) (citing N.Y. C.P.L.R. § 214(3)); see also In re Rausman, 50 A.D.3d 909, 910 (2d Dep't 2008). If the converter initially had lawful possession of the property, the action accrues when the rightful owner asserts his or her ownership rights and is rebuffed. Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 317-18 (1991). A demand by the rightful owner is unnecessary if such a demand would be futile. Hui Qun Zhao v. Yu Qi Wang, No. 10-CV-1758, 2013 WL 269034, at *5 (E.D.N.Y. Jan. 24, 2013) (citing Employers' Fire Ins. Co. v. Cotten, 245 N.Y. 102, 104-06 (1927) (finding demand futile because defendant "had full information relating to her own defect in title and the identity of the true owner" and "continued to assert dominion over" property)), aff'd, 558 F. App'x 41 (2d Cir. 2014).

Yeh concedes that, ordinarily, the applicable statute of limitations for conversion is three years—he nonetheless argues that his claim is subject to a six-year limitations period because his conversion claim is "based on fraud."5 See Yeh Br. in Opp. to Judgment on Pleadings (Dkt. 121) at 6 (quoting Monteleone v. Monteleone, 162 A.D.3d 761, 762 (2d Dep't 2018) and citing Ingrami v. Rovner, 45 A.D.3d 806, 808 (2d Dep't 2007)). Those cases do not apply because a conversion claim is "based on fraud" when the converter acquires the property through a fraudulent statement or omission on which the owner or custodian relies. See Rovner, 45 A.D.3d at 808 ("[T]he causes of action accrued in February 2001 when the plaintiff transferred the money in reliance upon the defendants' allegedly false representations. . . ."). In this case, Yeh has not pleaded any fraudulent statements or omissions on which he (or even Zhang) relied.6 The only misleading statements that could even remotely be inferred from the pleadings are Su's statements to Sotheby's when consigning the Vessel and to a Chinese court in connection with the action to quiet title—none of which was made to Yeh, or enabled Su to acquire the Vessel. Indeed, Yeh's theory of conversion expressly relies on Su's complete failure to communicate with Yeh. At best, Su's fraudulent acts, if any, are "merely incidental" to the conversion claim. See Marketxt Holdings Corp. v. Engel & Reiman, P.C., 693 F.Supp.2d 387, 394-95 (S.D.N.Y. 2010).

While Yeh is not entitled to a six-year limitations period based on the allegations in the cross-complaint, Yeh's arguments that Su purposely concealed his possession of the Vessel from Yeh, such as by failing to name Yeh in the Chinese quiet-title action, refusing to participate in mediation, and declining to name Yeh in this action, thereby preventing Yeh from learning about Su's conversion, may be relevant to an equitable estoppel argument. See Farkas v. Farkas, 168 F.3d 638, 644 (2d Cir. 1999) ("[T]here is more than sufficient evidence to conclude that [alleged converter] `intentionally' or `carefully' assisted in and concealed the conversion of the artwork. We therefore vacate the district court's ruling on the availability of equitable estoppel and remand the issue for further consideration. . . ."). At this juncture, there are factual questions raised in the pleadings as to what Su knew about Yeh's rights, when Yeh discovered that Su possessed the Vessel, what motivated Su's curious approach to this dispute, and what caused Yeh's delayed entry into this case, all of which would be relevant to assessing Su's statute-oflimitations defense and any claim by Yeh to equitable estoppel. See Markel Am. Ins. Co. v. Grimaldi, No. 10-CV-5447, 2012 WL 1020424, at *4-5 (E.D.N.Y. Feb. 10, 2012) ("The plaintiff is said to bear the burden of establishing that the action has been brought within a reasonable time after the facts forming the basis for the estoppel no longer are operational." (citing Golden Budha Corp. v. Canadian Land Co., 931 F.2d 196 (2d Cir. 1991))), report and recommendation adopted, No. 10-CV-5447, 2012 WL 1020409 (E.D.N.Y. Mar. 26, 2012). Because of the potential equitable estoppel argument, the Court cannot conclude that Su's affirmative defense of untimeliness clearly prevails on the face of the pleadings.

For those reasons, the Court concludes that judgment on the pleadings is inappropriate, and that timeliness is better adjudicated at summary judgment or at trial. Su's motion for judgment on the pleadings is therefore denied.

CONCLUSION

For the reasons discussed above, Yeh's motion to dismiss is GRANTED, and Plaintiffs' motion for judgment on the pleadings is DENIED. The Clerk of Court is respectfully directed to terminate the pending motions at docket entries 108 and 114.

SO ORDERED.