Where plaintiff sued a contractor for construction defects, the contractor filed for summary judgment to dismiss the action because it was filed later than the time period specified in the contract.  Although the action was filed within the time permitted under the state statute of limitations, the contract stated that no action could be brought more than two years after the cessation of the work.  The court concluded that regardless of whether the claims are for breach of contract or negligence, the shortened contractual limitations period applies to all claims. The claims were thus untimely made.  Markel American Insurance Company v. MR. Demolition, Inc., 2024 WL 630422 (New York, 2024). 

The following is quoted from the court’s decision:

Under New York law, the statute of limitations for a

negligence action is three years from the date of the injury.

CPLR § 214. An action for breach of contract must be brought

within six years of the date of the breach. CPLR § 213(2).

New York law also permits parties to a contract to shorten

these periods. See Sidik v. Royal Sovereign Int’l Inc., 348 F.

Supp. 3d 206, 213-14 (E.D.N.Y. 2018) (“Under New York

State law, parties to a contract may agree to shorten the

applicable statutory limitations period.”); Corbett v. Firstline

Sec., Inc., 687 F. Supp. 2d 124, 132 (E.D.N.Y. 2009) (holding

that plaintiff’s tort and contract-based claims were barred by

one-year contractual limitation).

Here, MT and Plaintiff’s Insured agreed to contractually

shorten the above statutes of limitation such that any claim

against MT had to be brought within two years of MT’s

completion of the work. Plaintiff does not dispute that it is

bound by the contract. Applying this two-year contractual

limitations period in the State Court Action, the New York

State Supreme Court, Kings County held that Plaintiff’s

Insured’s claims against MT were time barred. Dkt. 41-9, at

6-7. Plaintiff offers no compelling justification for why this

Court should rule differently. Indeed, regardless of whether

Plaintiff’s claims against MT are for breach of contract or

tort, the shortened contractual limitations period applies to all

claims against MT “whether in tort, contract, or otherwise.”

This includes the claims brought by Plaintiff against MT in

this case.

In light of the two-year limitations period, Plaintiff’s claims

against MT are untimely regardless of whether MT’s work

was completed on January 9, 2019 or on October 28,

      1. Plaintiff filed the Amended Complaint against MT

on September 28, 2022, more than one year after the

contractually-shortened limitations expired irrespective of the

accrual date. Accordingly, the Court finds that Plaintiff’s

breach of contract and negligence claims against MT are


Risk Management Comment:

Including a specified time limit for filing suit is a good idea. Many states have a statute of repose that sets a number of years for filing suit regardless of when the cause of action might be reasonably discovered. This effectively shortens the statute of limitations for filing certain claims. But it is possible to contractually specify an even shorter period of time for filing suit – contractually shorten the time for filing suit. 


About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 26, No. 4 (May 2024).

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