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William J. Thomann v. Auburn Enlarged City

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 4, 1991
176 A.D.2d 1235 (N.Y. App. Div. 1991)

Opinion

October 4, 1991

Appeal from the Supreme Court, Cayuga County, Contiguglia, J.

Present — Callahan, A.P.J., Doerr, Boomer, Balio and Lawton, JJ.


Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant's motion for summary judgment and dismissal of the complaint.

Plaintiff failed to file the notice of claim required by Education Law § 3813 within three months of the time that the project was substantially complete (see, Castagna Son v Board of Educ., 151 A.D.2d 392, 393; Public Improvements v Board of Educ., 81 A.D.2d 537, affd 56 N.Y.2d 850). A question of fact exists, however, whether defendant is estopped from asserting the defense of failure to file the notice of claim (see, Welsh v Gindele Johnson, 50 A.D.2d 971).

Supreme Court correctly denied the motion to dismiss the action as time-barred. The cause of action arose for Statute of Limitations purposes when plaintiff "should have viewed his claim as having been rejected" (Arnell Constr. Corp. v Village of N. Tarrytown, 100 A.D.2d 562, 563, affd 64 N.Y.2d 916; see also, Central School Dist. No. 3 v Kosoff Sons, 53 A.D.2d 1058, 1059). Plaintiff stated in its affidavit that it had no notice that its claims were rejected until one month before it served its complaint.


Summaries of

William J. Thomann v. Auburn Enlarged City

Appellate Division of the Supreme Court of New York, Fourth Department
Oct 4, 1991
176 A.D.2d 1235 (N.Y. App. Div. 1991)
Case details for

William J. Thomann v. Auburn Enlarged City

Case Details

Full title:WILLIAM J. THOMANN, INC., Respondent, v. AUBURN ENLARGED CITY SCHOOL…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 4, 1991

Citations

176 A.D.2d 1235 (N.Y. App. Div. 1991)

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