Opinion
Submitted May 3, 1978
Decided June 13, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, TIMOTHY J. SULLIVAN, J.
Alan D. Singer for appellant.
William F. Plunkett, Jr., for defendant-respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In this motion to dismiss the complaint for failure to state a cause of action, treated as a motion for summary judgment, the proof submitted by appellant is insufficient, as a matter of law, to raise a triable issue of fact as to whether respondent, board of education, has waived or is estopped from asserting the defense that appellant has failed to serve a timely verified claim in accordance with subdivision 1 of section 3813 of the Education Law. Although respondent referred to appellant's invoices as "claims", respondent also stated that it would take no action until receiving advice from its attorney. Such communications, rather than waiving any rights or defenses, at least impliedly reserved them.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.