Summary
allowing plaintiff to file late notice of claim in breach of contract action because "defendant had actual knowledge of the essential facts constituting the claim. . . . and the delay did not prejudice the defendant"
Summary of this case from Bloom v. New York City Board of EducationOpinion
January 18, 1994
Appeal from the Supreme Court, Nassau County (Kohn, J.).
Ordered that the order is reversed, on the law, with costs, the defendant's cross motion is denied, the complaint is reinstated, the plaintiff's motion is granted, the plaintiff is granted leave to serve a late notice of claim upon the defendant, the notice of claim dated September 13, 1990, is deemed served, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate judgment in the principal sum of $43,503.82 plus interest to be determined by the Supreme Court, Nassau County.
Having completed work on a construction contract entered into with the defendant on July 31, 1986, the plaintiff submitted a final requisition for payment of $43,503.82 on November 14, 1989. Over the ensuing months the plaintiff received numerous assurances in response to its calls and letters that payment was forthcoming. However, no check was ever sent. On September 14, 1990, the plaintiff served a notice of claim, and commenced this action.
According to Education Law § 3813 (1), a plaintiff is obliged to file a notice of claim against a school district within three months from the accrual of the "claim" under a contract. For contracts entered into before July 17, 1992, a "claim" accrued when the amount of money due was ascertained or ascertainable (see, Matter of Board of Educ. [Wager Constr. Corp.], 37 N.Y.2d 283; G.A. Contrs. v. Board of Educ., 176 A.D.2d 856; Prote Contr. Co. v. Board of Educ., 171 A.D.2d 621, 622; Philson Painting Co. v Board of Educ., 133 A.D.2d 619; Amsterdam Wrecking Salvage Co. v. Greater Amsterdam School Dist., 83 A.D.2d 654, affd 56 N.Y.2d 828). In consequence, because the amount of the plaintiff's "claim" was ascertained on November 14, 1989, its service of a notice of claim on September 14, 1990, was untimely.
However, the plaintiff did move for leave to serve a late notice of claim within the one-year period of limitations set forth in Education Law § 3813 (2-a) and (2-b) (see, Matter of Prote Contr. Co. v. Board of Educ., 198 A.D.2d 418). The defendant had actual knowledge of the essential facts constituting the claim in November 1989. The plaintiff failed to file a timely notice of claim by reason of its justifiable reliance upon representations by the defendant's authorized representatives and agents that its bill would be paid, and the delay did not prejudice the defendant (see, Education Law § 3813 [2-a]; Gordon Dana Madris Realty v. Eastchester Union Free School Dist., 125 A.D.2d 541, 542; Nyack Bd. of Educ. v. Capolino Design Renovation, 114 A.D.2d 849, affd 68 N.Y.2d 647). Additionally, among the "other relevant facts and circumstances" deserving of consideration under Education Law § 3813 (2-a) is the fact that the defendant does not contest the plaintiff's right to the $43,503.82 for work performed under the contract, arguing only that the plaintiff waited too long to sue (see, Quirk v Morrissey, 106 A.D.2d 498). Accordingly, we grant the plaintiff leave to serve a late notice of claim, deem the notice of claim timely served, and grant the plaintiff summary judgment. Bracken, J.P., Sullivan, Rosenblatt and Miller, JJ., concur.