Pursuant to CPLR 3211(a)(5), a moving defendant must establish, prima facie, that the time within which to commence an action has expired. On this threshold showing, the burden shifts to the party opposing the motion to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the limitations period.
Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. An agreement which modifies the limitations period by specifying a shorter, but reasonable, period within which to commence an action is enforceable provided it is in writing.
Extech Bldg. Materials, Inc. v. J Cos., LLC, NY Slip Op 01770 (2d Dep't March 25, 2026)
