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Popular Constr. v. N.Y.C. Sch. Constr. Auth

Appellate Division of the Supreme Court of New York, Second Department
Jan 18, 2000
268 A.D.2d 467 (N.Y. App. Div. 2000)

Opinion

Argued November 16, 1999

January 18, 2000

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Garson, J.), dated July 8, 1998, which, inter alia, granted that branch of the defendant's motion which was for leave to serve an amended answer asserting the affirmative defense of Statute of Limitations, and thereupon granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.

Zafar A. Siddiqi, New York, N.Y., for appellant.

Michael D. Hess, Corporation Counsel, New York, N.Y. (Elizabeth S. Natrella and Margaret G. King of counsel), for respondent.

THOMAS R. SULLIVAN, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court did not improvidently exercise its discretion in granting that branch of the motion of the defendant, New York City School Construction Authority (hereinafter the Authority), which was for leave to serve an amended answer to assert, inter alia, an affirmative defense based on the Statute of Limitations (see, CPLR 3025[b]; Fahey v. County of Ontario, 44 N.Y.2d 934 ).

The defendant moved for summary judgment dismissing the complaint on the grounds that the notice of claim was not timely filed and, in any event, that the complaint was time-barred. In order for a notice of claim to be timely, it must be filed within three months after the accrual of the claim (see, Public Authorities Law § 1744 Pub. Auth.[2][i]). Further, the timely filing of a notice of claim is a condition precedent to the commencement of an action against the Authority (see, Public Authorities Law § 1744 Pub. Auth.; G.A. Contrs. v. Board of Educ. of City of N.Y., 176 A.D.2d 856, 857). The claim here accrued when the plaintiff submitted detailed invoices to the Authority requesting final payment for the work it performed (see, G.A. Contrs. v. Board of Educ. of City of N.Y., supra; P C Giampilis Contr. Co. v. New York City School Constr. Auth., 211 A.D.2d 524). The plaintiff did not file the verified written notice of claim until eight months after it submitted the final request for payment to the Authority. Moreover, even if the notice of claim had been timely filed, the complaint is time-barred (see, Public Authorities Law § 1744 Pub. Auth.[2]). Thus, the Supreme Court correctly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the notice of claim was not timely filed.

The plaintiff's remaining contention is without merit.

SULLIVAN, J.P., FRIEDMANN, FEUERSTEIN, and SMITH, JJ., concur.


Summaries of

Popular Constr. v. N.Y.C. Sch. Constr. Auth

Appellate Division of the Supreme Court of New York, Second Department
Jan 18, 2000
268 A.D.2d 467 (N.Y. App. Div. 2000)
Case details for

Popular Constr. v. N.Y.C. Sch. Constr. Auth

Case Details

Full title:POPULAR CONSTRUCTION, INC., appellant, v. NEW YORK CITY SCHOOL…

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

Date published: Jan 18, 2000

Citations

268 A.D.2d 467 (N.Y. App. Div. 2000)
702 N.Y.S.2d 341

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