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Smile Train, Inc. v. Ferris Consulting Corp.
Citations: 117 A.D.3d 629; 986 N.Y.S.2d 473
Court: Appellate Division of the Supreme Court of the State of New York; May 27, 2014; New York; State Appellate Court
The order from the Supreme Court, New York County, affirmed the dismissal of the amended complaint against the defendants under CPLR 3211(a)(1) without costs. It also modified a previous order concerning nonparty Brian Mullaney's motion to quash the plaintiff's subpoena. The court denied the motion to quash but granted a protective order, limiting discovery to issues related to the defendants' performance of their contract with the plaintiff prior to Mullaney's resignation in October 2010. The court confirmed that a written agreement modifying the Statute of Limitations can be enforceable if it specifies a reasonable time frame and is not vague or ambiguous. It found that Section 18 of the contract between the plaintiff and Ferris Consulting Corp. was not vague and did apply to the plaintiff's claim regarding breach of the implied covenant of good faith and fair dealing. The court distinguished this claim as a contract issue rather than a tort, referencing prior cases that affirmed this principle. The court noted that it would be inconsistent for the plaintiff's contract claim, subject to a three-month statute of limitations, not to apply similarly to the breach of the implied covenant claim. The plaintiff did not dispute the applicability of the shortened statute of limitations to its claims of breach of fiduciary duty and aiding and abetting such breach. However, the aiding and abetting claim was deemed inadequately pleaded. Regarding the subpoena issue, the court acknowledged that the prior ruling did not consider the implications of the Matter of Kapon v. Koch decision. The court clarified that CPLR 3101(a) does not differentiate between parties and nonparties for disclosure requirements and that the subpoenaing party does not need to show it cannot obtain the disclosure elsewhere. Despite this, the court ruled that the plaintiff was not entitled to discover information regarding an allegedly converted donor list, as that claim was tied to dismissed claims. However, the plaintiff is entitled to limited discovery related to the defendants' performance prior to Mullaney's resignation.