Upon the foregoing papers, plaintiff Alex Moykher moves for an order, pursuant to CPLR 2221, granting leave to reargue an order of this court, dated February 1, 2011, which dismissed plaintiff's complaint as untimely.

Plaintiff commenced this action on May 3, 2010 seeking damages under the New York State Human Rights Law and New York City Human Rights Law for age discrimination in connection with plaintiff's termination from employment with defendant Mahoney Cohen & Company, P.C. According to the complaint, plaintiff was hired by defendant as an IT audit specialist on or about February 14, 2007. On or about July 7, 2008, plaintiff, who at the time was fifty-three years old, was terminated from his employment by defendant on alleged grounds of poor job performance and his former position was filled by an employee under the age of forty. Plaintiff alleges that during the course of his employment he displayed an exemplary work performance, receiving bonuses based thereon. Plaintiff claims, however, that the partner of defendant who hired him would often ask personal questions related to plaintiff's age, and had once made a comment that younger employees could be hired which would be paid less than plaintiff. On September 19, 2008, plaintiff had an initial consultation with the law firm of Tuckner, Sipser, Weinstock & Sipser, LLP (Tuckner) concerning his alleged wrongful termination. The firm was thereafter retained on October 3, 2008. Tuckner subsequently prepared a letter to defendant, dated March 4, 2009, which set forth the allegations constituting [*2]plaintiff's claim of discrimination and requested a response from defendant so a resolution may be discussed.

On or about June 2, 2010, defendant moved to dismiss this action pursuant to CPLR 3211(a)(2) on the ground that plaintiff had a complaint pending with the New York State Division of Human Rights. The motion to dismiss was subsequently withdrawn by stipulation dated July 19, 2010. On August 6, 2010, defendant served an answer on plaintiff which stated, among other affirmative defenses, that the action was barred by the statute of limitations. Defendant subsequently moved for summary judgment dismissing the complaint. On February 1, 2011, this court granted defendant's motion and dismissed the complaint on the ground that it was "untimely." Plaintiff thereafter brought the instant motion for reargument.

On a motion for leave to reargue, the movant must demonstrate matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (CPLR 2221[d][2] ). In his motion for reargument, plaintiff primarily contends that this court improperly granted summary judgment as its decision was not based on the merits of the action but upon a procedural ground. However, "[a]lthough a motion for summary judgment is usually based upon the overall merits of the case rather than on an individual defense, once issue has been joined, a motion for summary judgment may be based on CPLR 3211(a) grounds which have been asserted in the answer" (Fischer v RWSP Realty, LLC, 53 AD3d 594 [2008]; see Mann v Malasky, 41 AD3d 1136 [2007]; Houston v Trans Union Credit Info. Co., 154 AD2d 312 [1989]). Therefore, this court was not mistaken in granting summary judgment based on the statute of limitations defense without addressing the underlying merits of the claim.

There is no dispute that plaintiff signed a written agreement to limit the time period for bringing any employment-related legal claims against defendant to six months after the

applicable employment action. Specifically, plaintiff agreed:

"that any claim or lawsuit relating to my application for employment and/or employment with Mahoney Cohen or any of its affiliates and/or subsidiaries must be filed no more than six months after the date of the employment-related action that is the subject of the claim or lawsuit. I knowingly and voluntarily waive any statute of limitations to the contrary."

CPLR 201 provides that an action "must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement." (emphasis added). "CPLR 201 recognizes the right of parties to a contract to provide, by written agreement, for a shorter time for commencement of an action than that prescribed by statute. Absent proof that the contract is one of adhesion or the product of overreaching, or that the altered period is unreasonably short, the abbreviated period of limitation will be enforced. Where the party against whom an abbreviated Statute of Limitations is sought to be enforced has demonstrated no duress, fraud or misrepresentation in regard to his agreement to the shortened period, it must be assumed that the term was voluntarily agreed to" (Krohn v Felix Indus., 226 AD2d 506, 506 [1996][citiations and internal quotation marks omitted]). Plaintiff has not shown either in the prior motion for summary judgment or upon the instant motion for reargument that the agreement to the shortened six-month period was unenforceable or otherwise unreasonable.

Courts in this state have upheld agreements reducing the limitations period to six months or even shorter periods (CAB Assoc. v City of New York, 32 AD3d 229 [2006] [four-month period]; Schiavone Constr. Co. v City of New York, 191 AD2d 152 [1993][six-month period]; Wayne Drilling & Blasting v Felix Indus., 129 AD2d 633 [1987] [90-day period]). Federal courts have upheld similar six-month limitations periods related to employment discrimination claims (Thurman v DaimlerChrysler, Inc., 397 F3d 352 [6th Cir 2004]; Soltani v Western & Southern Life Ins. Co., 258 F3d 1038 [9th Cir 2001];Taylor v Western and Southern Life Ins. Co., 966 F2d 1188 [7th Cir1992]). Significantly, it was noted by one court that Title VII has a similar six-month limitations period for employment discrimination claims and that the Labor [*3]Management Relations Act requires breach of duty claims to be brought within six months (see Soltani, 58 F3d at 1044). There is no indication here that the six-month limitations period denied plaintiff and/or his counsel a sufficient opportunity to investigate and file an action.

Further, plaintiff has not shown that the agreement to shorten the limitations agreement was unconscionable. In Gillman v Chase Manhattan Bank (73 NY2d 1 [1988]), the Court of Appeals outlined the doctrine of unconscionability in contract formation as follows:

"An unconscionable contract has been defined as one which is so grossly unreasonable or unconscionable in the light of the mores and business practices of the time and place as to be unenforcible (sic) according to its literal terms. The doctrine, which is rooted in equitable principles, is a flexible one and the concept of unconscionability is intended to be sensitive to the realities and nuances of the bargaining process. A determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made-i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.

The procedural element of unconscionability requires an examination of the contract formation process and the alleged lack of meaningful choice. The focus is on such matters as the size and commercial setting of the transaction, whether deceptive or high-pressured tactics were employed, the use of fine print in the contract, the experience and education of the party claiming unconscionability, and whether there was disparity in bargaining power. In general, an unconscionable contract has been defined as one which is so grossly unreasonable because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party" (Gillman, 73 NY2d at 10-11) (citations and internal quotation marks omitted).

There is no indication here that plaintiff lacked any meaningful choice when he signed the agreement. Plaintiff was free to either accept a position and concomitant salary with defendant or seek employment at another firm which did not require an agreement to shorten the limitations period. Nor is it shown that the terms were unreasonably favorable to defendant, as the six-month period affords an aggrieved party sufficient time to seek redress for any employment based claim against defendant.

Finally, plaintiff has not demonstrated that defendant should be equitably estopped from asserting its statute of limitations defense. "Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the defendant" (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006]; Giannetto v Knee, 82 AD3d 1043, 1045-1046 [2011]). Plaintiff has not identified any action or communication by defendant or its counsel which prevented him from filing this action within the applicable six-month period. In fact, there is no evidence to show that defendant was ever appraised of plaintiff's claims until it received the demand letter from plaintiff's counsel dated March 4, 2009, nearly two months following the expiration of the limitations period.The court has fully considered all other arguments by plaintiff on the instant motion and finds them insufficient to warrant a change in this court's prior determination.

As a result, plaintiff's motion for reargument is denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.