Segal v South Shore Alarms, Inc.
2014 NY Slip Op 51146(U)
Decided on July 7, 2014
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2014


2013-760 N C

Martha Segal, Appellant


South Shore Alarms, Inc., Respondent

Appeal from an order of the District Court of Nassau County, First District (Douglas J. Lerose, J.), dated February 8, 2013. The order granted defendant's motion to dismiss the action as time-barred and awarded defendant attorney's fees in the sum of $600.

ORDERED that the order is affirmed, without costs.

In this small claims action commenced in 2012, plaintiff seeks to recover the sum of $3,379.95, alleging a breach of a 2009 contract in that goods and services that had been paid for had not been received. Defendant moved to dismiss the action on the ground that the contract at issue contains a clause providing for a one-year statute of limitations and, thus, the action is time-barred. Defendant also sought to recover attorney's fees based on a clause in the contract. Plaintiff opposed the motion. By order dated February 8, 2013, the District Court dismissed the action on the ground that it was barred by the statute of limitations and awarded defendant attorney's fees in the sum of $600.

The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations (see John J. Kassner & Co. v City of New York, 46 NY2d 544 [1979]; Matter of Incorporated Vil. of Saltaire v Zagata, 280 AD2d 547 [2001]). "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" (Timberline Elec. Supply Corp. v Insurance Co. of N. Am., 72 AD2d 905, 906 [1979], affd 52 NY2d 793 [1980]; see Jamaica Hosp. Med. Ctr. v Carrier Corp., 5 AD3d 442 [2004]).

Here, defendant made a prima facie showing that the action had not been commenced within the applicable limitations period as set forth in the parties' agreement. We find that the one-year statute of limitations was not unreasonably short (cf. Top Quality Wood Work Corp. v City of New York, 191 AD2d 264 [1993]). In opposition, plaintiff failed to rebut defendant's prima facie showing. Consequently, the District Court properly granted defendant's motion to dismiss the action as time-barred. In addition, the court properly awarded defendant reasonable attorney's fees as provided for in the parties' contract (see Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1 [1986]).

Accordingly, the order is affirmed.

Iannacci, P.J., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2014