| Hunt v Raymour & Flanigan |
| 2013 NY Slip Op 02715 [105 AD3d 1005] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Thomas Hunt, Respondent, v Raymour &Flanigan, Appellant, et al., Defendant. |
—[*1] McKinley Onua & Associates, PLLC, Brooklyn, N.Y. (Christina Bonne-Annee ofcounsel), for respondent.
In an action, inter alia, to recover damages for employment discrimination andunlawful retaliation in violation of Executive Law § 296 and Administrative Codeof the City of New York § 8-107, the defendant Raymour & Flanigan appeals, aslimited by its notice of appeal and brief, from so much of an order of the Supreme Court,Kings County (Rothenberg, J.), dated May 17, 2012, as denied those branches of itsmotion which were pursuant to CPLR 3211 (a) to dismiss the first and second causes ofaction insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, and those branches of the motion of the defendant Raymour &Flanigan which were to dismiss the first and second causes of action insofar as assertedagainst it are granted.
On December 27, 2007, the plaintiff signed an application for employment(hereinafter the employment application) with the defendant Raymour & Flanigan(hereinafter R & F) which provided that "any claim or lawsuit relating to [his] servicewith [R & F] must be filed no more than six (6) months after the date of the employmentaction that is the subject of the claim or lawsuit." Pursuant to the employmentapplication, the plaintiff agreed that he waived any statute of limitations to the contrary.Thereafter, the plaintiff was employed by R & F from January 2008 until his employmentwas terminated on February 4, 2011.
On or about November 22, 2011, more than six months after his employment wasterminated, the plaintiff commenced this action, inter alia, to recover damages foremployment discrimination and retaliation in violation of Executive Law § 296and Administrative Code of the City of New York § 8-107 against R & F and oneof R & F's vice presidents. R & F moved pursuant to CPLR 3211 (a) (1) and (7) todismiss the complaint insofar as asserted against it. The Supreme Court, inter alia, deniedthose branches of R & F's motion which were pursuant to CPLR 3211 (a) (1) and (7) todismiss the first and second causes of action insofar as asserted against it.
As an initial matter, since R & F, in its notice of appeal, limited the scope of itsappeal to so much of the order as denied those branches of its motion which were todismiss the first and second causes of action, R & F's contentions on appeal that the thirdand fourth causes of action should have been dismissed are not properly before this Court(see CPLR 5515 [1]; Hatem v Hatem, 83 AD3d 663, 664 [2011]; Paterno v Carroll, 75 AD3d625, 629 [2010]; City of Mount Vernon v Mount Vernon [*2]Hous. Auth., 235 AD2d 516, 516-517 [1997]).
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1), "dismissal iswarranted only if the documentary evidence submitted conclusively establishes a defenseto the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88[1994]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).Here, R & F submitted documentary evidence in the form of the employment application,which demonstrated that the plaintiff contractually agreed to commence any claim orlawsuit against R & F no more than six months after the date of the employment actionthat was the subject of the claim or lawsuit. "The parties to a contract may agree to limitthe period of time within which an action must be commenced to a period shorter thanthat provided by the applicable statute of limitations" (Jamaica Hosp. Med. Ctr. v CarrierCorp., 5 AD3d 442, 443 [2004]; see CPLR 201; John J. Kassner &Co. v City of New York, 46 NY2d 544, 550-551 [1979]). " 'Absent proof that thecontract is one of adhesion or the product of overreaching, or that [the] altered period isunreasonably short, the abbreviated period of limitation will be enforced' " (JamaicaHosp. Med. Ctr. v Carrier Corp., 5 AD3d at 443, quoting Timberline Elec.Supply Corp. v Insurance Co. of N. Am., 72 AD2d 905, 906 [1979], affd 52NY2d 793 [1980]). The plaintiff's contentions that the shortened limitations period setforth in the employment application was not applicable or was unenforceable are withoutmerit. Accordingly, since the plaintiff commenced this action more than six months afterthe date his employment was terminated, the first and second causes of action insofar asasserted against R & F should have been dismissed pursuant to CPLR 3211 (a) (1).
The parties' remaining contentions are either without merit or academic in light ofour determination. Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.