Rudin v. Disanza

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN
• Citation: Rudin v. Disanza, 608 N.Y.S.2d 216, 202 A.D.2d 202 (N.Y. App. Div. 1994)
• Decision Date: 03 March 1994
• Parties: William C. RUDIN, et al., Plaintiffs-Respondents, v. Filip M. DISANZA, Defendant-Appellant.

Page 216

608 N.Y.S.2d 216

202 A.D.2d 202

William C. RUDIN, et al., Plaintiffs-Respondents, v. Filip M. DISANZA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 3, 1994.

Before SULLIVAN, J.P., and ROSENBERGER, KUPFERMAN and ROSS, JJ.

MEMORANDUM DECISION.

Order Supreme Court, New York County (Shirley Fingerhood, J.), entered April 20, 1993, which denied the defendant's motion dismissing the complaint pursuant to, inter alia, CPLR 3211(a)(5) for failure to commence the action within the period of limitations specified in the parties' contract, unanimously reversed on the law and the facts, without costs, the defendant's motion is granted, the complaint is dismissed, and the clerk is directed to enter a judgment accordingly.

Plaintiffs, purchasers of a cooperative apartment from the defendant, sought to commence this action for breach of contract and fraud by instructing a process server to complete service on the defendant no later that February 7, 1992. The provision, numbered paragraph 35, upon which the plaintiffs based their causes of action appears in a rider to the contract of sale drafted by the plaintiffs' counsel. Therein, the defendant as seller, inter alia, warranted that he did not make any alterations or additions to the unit in contravention of the by-laws of the cooperative, any other agreements with same or other applicable laws. It was provided that the provisions of paragraph 35 "shall survive as provided in paragraph 4.3" of the contract. Paragraph 4.3 provided that the "representations and covenants contained in Par. 4.1 shall survive Closing, but any action based thereon must be instituted within 1 year from Closing". The parties closed on the sale of the cooperative apartment on February 8, 1991.

It is not disputed that the process server delivered a copy of the summons and complaint on February 7, 1992, to a Ms. Daniels, the receptionist in the suite of offices in which defendant's corporation sublet space. At some time thereafter the process server mailed a second copy of the summons and complaint to defendant at his last known residence. No postage was placed on the envelope; however, the defendant acknowledged that he received the papers on February 20, 1992. The envelope bore a postmark dated February 18, 1992. The referee who presided over the traverse concluded that the second set of papers was deposited in the mail on or shortly before February 18, 1992.

It is well settled that parties may contractually agree to shorten the applicable period of limitations (CPLR 201; John J. Kassner & Co. v. City of New York, 46 N.Y.2d 544, 551, 415 N.Y.S.2d 785, 389 N.E.2d 99). Contrary to the finding reached by the IAS court, the record demonstrates that the one year period of limitation contained in paragraph 35 of the rider to the contract, was negotiated by the parties. Moreover, plaintiffs do not dispute...