Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 2, 2014

Agreement Term Shortening Limitations Period Applies to Claims Arising From the Agreement

On May 27, 2014, the First Department issued a decision in Smile Train, Inc. v. Ferris Consulting Corp., 2014 NY Slip Op. 03785, enforcing an agreement term shortening the limitations period to bring a claim relating to the agreement.

In Smile Train, the defendants moved to dismiss the plaintiff’s claims based on a contract term shortening the limitations period in which to make a claim. The First Department affirmed the trial court’s decision granting the motion, explaining:

An agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable provided it is in writing. In addition, it must not be so vague and ambiguous that it is unenforcible. . . . .

We . . . disagree with plaintiff’s contention that [the limitations provision in the parties’ contract] does not apply to its claim for breach of the implied covenant of good faith and fair dealing. It is true that I.C.C. Metals v Municipal Warehouse Co. (50 NY2d 657 [1980]) says that a party may not limit its liability for an intentional tort. However, breach of the implied covenant of good faith and fair dealing is not a tort; rather, it is a contract claim. A claim for breach of the implied covenant of good faith and fair dealing may not be used as a substitute for a nonviable claim of breach of contract. It would be anomalous if plaintiff’s contract claim were subject to a three-month statute of limitations but its claim for breach of the implied covenant were not.

(Internal quotations and citations omitted).

The decision to agree to a shortened limitations period might seem small when an agreement is signed, but transactional counsel should remember that such agreements will be enforced, sometimes with significant consequences.

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