State of Narrow Fabric, Inc. v. Unifi, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: State of Narrow Fabric, Inc. v. Unifi, Inc., 126 A.D.3d 881, 5 N.Y.S.3d 512, 2015 N.Y. Slip Op. 2110 (N.Y. App. Div. 2015)
• Decision Date: 18 March 2015
• Docket Number: 2013-05879
• Parties: STATE OF NARROW FABRIC, INC., etc., respondent, v. UNIFI, INC., et al., appellants.

126 A.D.3d 881

5 N.Y.S.3d 512

2015 N.Y. Slip Op. 02110

STATE OF NARROW FABRIC, INC., etc., respondent

v.UNIFI, INC., et al., appellants.

2013-05879

Supreme Court, Appellate Division, Second Department, New York.

March 18, 2015.

Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (David P. Feehan of counsel), for appellants.

Steven L. Levitt & Associates, P.C., Mineola, N.Y. (Steven L. Levitt, Edwin Kassoff, and Trevor M. Gomberg of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and JOSEPH J. MALTESE, JJ.

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated April 12, 2013, as denied that branch of their motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint is granted.

In October 2012, the plaintiff commenced this action against the defendants alleging, among other things, that between April 2008 and August 2010, the defendants breached the parties' contract by supplying the plaintiff with yarn that differed from the yarn that it had ordered. Thereafter, the defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred, relying on a contractual one-year limitation period.

“ ‘In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired’ ” (QK Healthcare, Inc. v. InSource, Inc., 108 A.D.3d 56, 65, 965 N.Y.S.2d 133, quoting A.F. Rockland Plumbing Supply Corp. v. Hudson Shore Associated Ltd. Partnership, 96 A.D.3d 885, 886, 948 N.Y.S.2d 79 ; see J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 653, 990 N.Y.S.2d 223 ). “The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or was otherwise inapplicable, or whether the action was actually commenced within the period propounded by the defendant” (QK Healthcare, Inc. v. InSource, Inc., 108 A.D.3d at 65, 965 N.Y.S.2d 133 ; see J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d at 653, 990 N.Y.S.2d 223 ).

While UCC 2–725(1) generally provides that a cause of action alleging breach of a sales contract must be commenced within four years after it has accrued, that provision also allows the parties to a sales contract to “reduce the period of limitation to not less than one year” (UCC 2–725[1] ; see Rini v. Kenn–Schl, LLC, 64 A.D.3d 988, 989, 881 N.Y.S.2d 725 ; Gruet v. Care Free Hous. Div. of Kenn–Schl Enters., 305 A.D.2d 1060, 1061, 759 N.Y.S.2d 276 ). Here, the defendants met their initial burden by demonstrating that their invoices containing the one-year limitation period constituted an acceptance that, together with the plaintiff's purchase order, was effective in forming a contract, and that the one-year limitation period, an additional term set forth in the invoices, was presumed to have become part of this contract between the parties unless one of the three exceptions in UCC 2–207(2) applied (see UCC 2–207[1], [2] ; Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 223 [2d Cir.] ; see also CBS, Inc. v. Auburn Plastics, 67 A.D.2d 811, 413 N.Y.S.2d 50 ; Dorton v. Collins & Aikman Corp., 453 F.2d 1161, 1167–1168 [6th Cir.] ). It is undisputed that the plaintiff's action was not commenced within one year from the alleged breach, as required by the additional term. The burden then shifted to the plaintiff, as the party opposing the inclusion of the additional term, to raise a question of fact as to whether one of the three exceptions under UCC 2–207(2) was applicable (see Orkal Indus., LLC v. Array Connector Corp., 97 A.D.3d 555, 556, 948 N.Y.S.2d 318 ; see also Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 708 [2d Cir.] ; Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d at 223 ). The plaintiff failed to satisfy its burden.

Contrary to the plaintiff's contention, the abbreviated period of limitation was not against public policy (see CPLR 201 ; UCC 2–725[1] ; see generally John J. Kassner & Co. v. City of New York, 46 N.Y.2d 544, 550–551, 415 N.Y.S.2d 785, 389 N.E.2d 99 ). “ ‘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’ ” (John v. State Farm Mut. Auto. Ins. Co., 116 A.D.3d 1010, 1011, 983 N.Y.S.2d 883, quoting Jamaica Hosp. Med. Ctr. v. Carrier Corp., 5 A.D.3d 442, 443, 772 N.Y.S.2d 592 ; see John J. Kassner & Co. v. City of New York, 46 N.Y.2d at 550–551, 415 N.Y.S.2d 785, 389 N.E.2d 99 ). “ ‘Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentations in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed...