Summary
In Davis-Wallbridge, Inc. v. City of Syracuse, 71 N.Y.2d 842, 843 (1988), the New York Court of Appeals dismissed the plaintiff's breach of contract claim because the plaintiff admittedly failed to comply with the notice-of-claim provision.
Summary of this case from Cooper Crouse-Hinds, LLC v. City of SyracuseOpinion
Argued February 2, 1988
Decided March 22, 1988
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Edward F. McLaughlin, J.
C. Frank Harrigan, Corporation Counsel (James L. Gelormini, Kevin M. O'Neill and Lee Alcott of counsel), for appellant.
Robert J. Frechette for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.
Defendant City of Syracuse contracted with plaintiff for improvements to a running track in one of its parks. Pursuant to the contract, defendant withheld a sum as liquidated damages when plaintiff failed to complete the work on time. Plaintiff commenced this action to recover the withheld amount.
Plaintiff admits that it failed to comply with the notice of claim provision contained in the Syracuse City Charter (see, § 8-115). It argues, however, that service of a notice of claim was not necessary because it followed the procedure set forth in the contract for presentment of disputes. We disagree. Compliance with the charter's notice of claim clause, unless waived, is a condition precedent to the commencement of litigation against the City (see, Matter of Geneseo Cent. School [Perfetto Whalen Constr. Corp.], 53 N.Y.2d 306, 311). This statutory provision will be deemed to have been waived only where there is an express agreement that it is inapplicable or where waiver may be implied from the fact that the parties have "set out detailed procedures which are `plainly inconsistent with those contained in that section'" (id., quoting Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.], 45 A.D.2d 85, 86). Here there was no express agreement to waive the charter's notice of claim provision, and the procedures set out in the dispute resolution clause are not plainly inconsistent with the charter's. Thus, the plaintiff's failure to serve a notice of claim requires dismissal of the action.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, HANCOCK, JR., and BELLACOSA concur in memorandum; Judge TITONE taking no part.
Order reversed, etc.