SMILE TRAIN, INC., plf-ap, v. FERRIS CONSULTING CORP. def-res

12589-12590N. SMILE TRAIN, INC., plf-ap, v. FERRIS CONSULTING CORP. def-res — SMILE TRAIN, INC., plf-ap, v. FERRIS CONSULTING CORP. def — BRIAN MULLANEY, Nonparty res — Kaye Scholer LLP, New York (Vincent A. Sama of counsel), for ap — Peter Brown and Associates, New York (Peter Brown of counsel), for Ferris Consulting Corp. and Gregory Shaheen, res — Kravet & Vogel, LLP, New York (Joseph A. Vogel of counsel), for Brian Mullaney, res — Order, Supreme Court, New York County (Eileen Bransten, J.), entered February 25, 2013, which, to the extent appealed from, granted defendants' motion to dismiss the amended complaint pursuant to CPLR 3211(a)(1), unanimously affirmed, without costs. Order, same court and Justice, entered September 16, 2013, which granted the motion of nonparty Brian Mullaney to quash plaintiff's subpoena, unanimously modified, on the law and in the exercise of discretion, to deny that motion but to grant his motion, in the alternative, for a protective order, to the extent of limiting discovery to defendants' allegedly poor performance of their contract with plaintiff prior to Mullaney's resignation as plaintiff's president in late October 2010, and as so modified, affirmed, without costs.

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12589-12590N. SMILE TRAIN, INC., plf-ap, v. FERRIS CONSULTING CORP. def-res — SMILE TRAIN, INC., plf-ap, v. FERRIS CONSULTING CORP. def — BRIAN MULLANEY, Nonparty res — Kaye Scholer LLP, New York (Vincent A. Sama of counsel), for ap — Peter Brown and Associates, New York (Peter Brown of counsel), for Ferris Consulting Corp. and Gregory Shaheen, res — Kravet & Vogel, LLP, New York (Joseph A. Vogel of counsel), for Brian Mullaney, res — Order, Supreme Court, New York County (Eileen Bransten, J.), entered February 25, 2013, which, to the extent appealed from, granted defendants’ motion to dismiss the amended complaint pursuant to CPLR 3211(a)(1), unanimously affirmed, without costs. Order, same court and Justice, entered September 16, 2013, which granted the motion of nonparty Brian Mullaney to quash plaintiff’s subpoena, unanimously modified, on the law and in the exercise of discretion, to deny that motion but to grant his motion, in the alternative, for a protective order, to the extent of limiting discovery to defendants’ allegedly poor performance of their contract with plaintiff prior to Mullaney’s resignation as plaintiff’s president in late October 2010, and as so modified, affirmed, without costs.

“[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable provided it is in writing” (John J. Kassner & Co. v. City of New York, 46 NY2d 544, 551 [1979] [internal citations omitted]). In addition, it must not be “so vague and ambiguous that it is unenforcible” (Matter of Brown & Guenther [North Queensview Homes], 18 AD2d 327, 330 [1st Dept 1963]). Contrary to plaintiff’s claim, section 18 of the contract between it and defendant Ferris Consulting Corp. is not so vague and ambiguous as to be unenforcible.

SMILE TRAIN, INC., plf-ap, v. FERRIS CONSULTING CORP. def-res

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