On June 14, 2022, Justice Borrok of the New York County Commercial Division issued a decision in Apotex Corp. v. Hospira Healthcare India Private Ltd., 2022 NY Slip Op. 31873(U), holding that equitable tolling can be based on fraud, misrepresentations, or deception, explaining:
In order for a plaintiff to be entitled to equitable estoppel to save claims that would otherwise be untimely, the plaintiff must show that (i) it was induced by fraud, misrepresentations or deception to refrain from filing a timely action and (ii) it reasonably relied on the defendant’s misrepresentations. A plaintiff must also demonstrate its due diligence in ascertaining the facts and commencing the action. A determination as to whether a plaintiff is entitled to equitable estoppel to toll its claims is generally not properly resolved on a motion to dismiss. The Court misapprehended in the Prior Decision (i) that Hospira Inc. was not a part of the parties’ agreement until 2017, and (ii) that Apotex was arguing that Hospira engaged in a series of wrongful acts to fraudulently conceal its alleged breaches of contract, such that Apotex may be entitled to tolling of the four-year statute of limitations based on equitable estoppel. On this record, Apotex has demonstrated that it may have been induced by fraud, misrepresentations, or deception to refrain from timely filing a lawsuit, that it reasonably relied on Hospira’s representations, and that it has done adequate due diligence to timely ascertain the facts or that it was prevented from doing further due diligence by Hospira based on their elaborate continuing fraud. While Apotex’s ultimate entitlement to tolling of the statute of limitations is not properly determined on this motion, Apotex is at a minimum entitled to discovery. For the avoidance of doubt, the fact that Apotex claimed contract damages does not change this conclusion.
(Internal citations omitted) (emphasis added).