A cause of action accrues, triggering the commencement of the statute of limitations period, when “all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be entitled to relief” (Gaidon v. Guardian Life Ins. Co. of Am.). The “continuing wrong” doctrine is an exception
The statute of limitations to recover on a breach of contract is six years. Parties can extend that limitations periods by agreement, and New York General Obligations Law 17-101 governs the form of such agreements. It provides that, “[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules. . . ” Per GOL 17-101, only signed writings acknowledging the indebtedness and promising to pay are sufficient to extend the statute of limitations.
In considering whether a writing satisfies GOL 17-101 and extends a statute of limitations, Courts require three elements: Signature, Content, and Delivery.
First, the acknowledgement must be “signed by the party to be charged thereby.” See 20 Plaza Hous. Corp. v. 20 Plaza E. Realty, 950 N.Y.S.2d 871, 874 (Sup. Ct. N.Y. Cty. Aug. 30, 2012) (Section 17-101 inapplicable because acknowledgment was “not signed by defendant”).
Second, the acknowledgment must convey “an intention to pay Plaintiff’s debt.” See Knoll v. Datek Sec. Corp., 2 A.D.3d 594, 595 (2d Dep’t 2003) (“[T]he critical determination is whether the acknowledgment imports an intention to pay.”). If the writing is at all inconsistent with an unequivocal intention to repay the debt, the writing fails the requirements of GOL 17-101.
Third, the acknowledgment “must have been communicated to the plaintiff or someone acting on his behalf, or intended to influence the plaintiff’s conduct.” See Lynford v. Williams, 34 A.D.3d 761, 763 (2d Dep’t 2006) (Section 17-101 inapplicable where “plaintiff did not learn of the [purported acknowledgments] until after he commenced this action”).
In part because GOL 17-101 was intended to limit the instances in which an acknowledgment revives a cause of action, Courts strictly enforce each of the three requirements. A writing failing any of the Signature, Content, or Delivery requirements is insufficient to restart the statute of limitations. While the requirements of GOL 17-101 are strictly enforced, not every ambiguity in the acknowledgment will defeat its enforcement. Recently, in Hawk Mtn. LLC v. RAM Capital Group LLC, 2021 NY Slip Op. 01349, the First Department held that an acknowledgement was sufficient to satisfy GOL 17-101 and restart the statute of limitations, despite its failure to specifically refer to the debt and inconsistencies between the acknowledgment and the underling note.Continue Reading General Statement of Indebtedness is Sufficient to Restart Statute of Limitations Despite Ambiguities
The statutes of limitations set forth in the CPLR are default rules, and parties generally are free to modify default rules by agreement. But statutes of limitations also further the important public interests, such as avoiding stale claims and giving repose to our affairs. In light of the public interests involved, there are substantial limits on how much parties can agree to lengthen, shorten, or waive the limitations periods applicable to claims arising under New York law.
For example, while parties can agree to a shorter limitations period than prescribed by the CPLR, a recent case by Albany County Commercial Division Justice Richard Platkin serves as a sharp reminder that a contractually shortened limitations period must be reasonable under the circumstances and, in many cases, the reasonableness of such an agreement depends not only on the length of the limitations period itself, but also on the accrual date.Continue Reading Expect Careful Scrutiny of Contractually Shortened Statutes of Limitations
Generally speaking, a court does not have the discretion to extend a statute of limitations. A court can, however, consistent with its inherent equitable powers, preclude a defendant from asserting a statute of limitations defense where the defendant’s own intentional misconduct prevented the plaintiff from timely filing suit. This equitable doctrine, known as equitable