IN RE: INCORPORATED VILLAGE OF SALTAIRE

Reset A A Font size: Print

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

IN RE: INCORPORATED VILLAGE OF SALTAIRE, etc., Appellant, v. Michael D. ZAGATA, etc., et al., Respondents.

Decided: February 13, 2001

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, HOWARD MILLER, JJ. Reilly, Like, Tenety & Ambrosino, Babylon, N.Y. (Irving Like of counsel), for appellant. Eliot Spitzer, Attorney General, New York, N.Y. (Peter G. Crary, Norman Spiegel, and John J. Gibson of counsel), for respondents.

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent New York State Department of Environmental Conservation dated July 27, 1995, that the subject property is not exempt from regulations concerning freshwater wetlands, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Cannavo, J.), entered September 17, 1999, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 Parties to a contract may agree to limit the period of time within which an action must be commenced to a shorter period than that provided by the applicable Statute of Limitations (see, CPLR 201;  Kassner & Co. v. City of New York, 46 N.Y.2d 544, 415 N.Y.S.2d 785, 389 N.E.2d 99;  Certified Fence Corp. v. Felix Indus., 260 A.D.2d 338, 687 N.Y.S.2d 682;  Krohn v. Felix Indus., 226 A.D.2d 506, 641 N.Y.S.2d 77;  Wayne Drilling & Blasting v. Felix Indus., 129 A.D.2d 633, 514 N.Y.S.2d 114).   “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 North Amer., 72 A.D.2d 905, 906, 421 N.Y.S.2d 987, affd. 52 N.Y.2d 793, 436 N.Y.S.2d 707, 417 N.E.2d 1248;  see, Wayne Drilling & Blasting v. Felix Indus., supra, at 634, 514 N.Y.S.2d 114).   Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentation in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed to (see, Krohn v. Felix Indus., supra, at 506, 641 N.Y.S.2d 77;  Wayne Drilling & Blasting v. Felix Indus., supra, at 634, 514 N.Y.S.2d 114;  Snyder v. Gallagher Truck Center, 89 A.D.2d 705, 706, 453 N.Y.S.2d 826).

 The parties entered into a stipulation which provided for a 90-day period of limitations.   This was freely agreed to by the parties, and was not shown to be involuntary or unreasonable under the circumstances (see, Krohn v. Felix Indus., supra, at 506, 641 N.Y.S.2d 77;  Wayne Drilling & Blasting v. Felix Indus., supra, at 634, 514 N.Y.S.2d 114).   A stipulation is a contract between parties (see, Pekofsky v. Nanuet Auto Parts, 210 A.D.2d 208, 619 N.Y.S.2d 740).   Accordingly, the Supreme Court properly dismissed the proceeding.

In light of our determination, we need not reach the petitioner's remaining contentions.

Copied to clipboard