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THE 90-DAY CONTRACTUAL STATUTE OF LIMITATIONS WAS VALID AND ENFORCEABLE; THE BREACH OF CONTRACT CAUSE OF ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the 90-day statute of limitation in the contract applied and the breach of contract cause of action was therefore time-barred. The construction contract required an action to be brought within 90 days of the completion of construction:

… [An] “agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable'” … . ” [T]he period of time within which an action must be brought . . . should be fair and reasonable, in view of the circumstances of each particular case. . . . The circumstances, not the time, must be the determining factor'” … . “Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … .

Here, the [defendant] demonstrated, prima facie, that the time within which to commence this action had expired inasmuch as the plaintiff failed to commence this action within 90 days after May 31, 2011, when construction was indisputably complete … . Stonewall Contr. Corp. v Long Is. Rail Rd. Co., 2020 NY Slip Op 04505, Second Dept 8-12-20

 

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