Opinion
2002-09411.
Decided March 29, 2004.
In an action, inter alia, to foreclose a lien and to recover upon a payment bond, the defendant Premier-New York, Inc., appeals from an order of the Supreme Court, Nassau County (O'Connell, J.), dated September 12, 2002, which denied its motion for leave to amend its answer to assert additional cross claims and granted the cross motion of the defendant Carle Place Union Free School District for summary judgment dismissing the cross claims of Premier-New York, Inc., insofar as asserted against it.
Allan M. Cane (Gordon Juengst, P.C., Ronkonkoma, N.Y. [Jennifer A. Juengst] of counsel), for appellant.
Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (Scott B. Fisher of counsel), for respondent.
Before: DAVID S. RITTER, J.P., HOWARD MILLER, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The defendant Premier-New York, Inc. (hereinafter Premier), interposed four cross claims against the defendant Carle Place Union Free School District (hereinafter the School District) in this action. The timely presentation of a notice of claim is a condition precedent to maintaining claims against a school district ( see Education Law § 3813; Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 547; Dodge, Chamberlin, Luzine, Weber Architects v. Dutchess County Bd. of Coop. Educ. Servs., 258 A.D.2d 434, 435). In this case, the School District, prima facie, demonstrated that Premier failed to serve a timely notice of claim upon its governing body ( see Education Law § 3813; Parochial Bus Sys. v. Board of Educ. of City of N.Y., supra at 548; Alfred Santini Co. v. City of New York, 266 A.D.2d 119, 120; Dodge, Chamberlin, Luzine, Weber Architects v. Dutchess County Bd. of Coop. Educ. Servs., supra; Matter of Sainato v. Western Suffolk BOCES, 242 A.D.2d 301; Accen Constr. Corp. v. Port Washington Union Free School Dist., 173 A.D.2d 753. Indeed, Premier's cross claims were defective as pleaded since they failed to allege compliance with the notice of claim requirements of Education Law § 3813(1) ( see Crescent Elec. Installation Corp. v. Board of Educ. of City of N.Y., 50 N.Y.2d 780, 783-784; Matter of Kernan Lib. Off. Group v. Board of Educ., 187 A.D.2d 861; Stoetzel v. Wappingers Cent. School Dist., 166 A.D.2d 643; Herrick Elec. Contr. Co. v. Board of Educ. of City of N.Y., 116 A.D.2d 621, 622).
In opposition to the School District's prima facie showing of entitlement to judgment as a matter of law dismissing the cross claims insofar as asserted against it, Premier failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). Contrary to Premier's contention, the School District was not estopped from asserting its defense pursuant to Education Law § 3813 ( see Bronco Bus Corp. v. City of Yonkers Bd. of Educ., 250 A.D.2d 718, 719; cf. Conquest Cleaning Corp. v. New York City School Constr. Auth., 279 A.D.2d 546; Henry Boeckmann, Jr. Assocs. v. Board of Educ. Hempstead Union Free School Dist. No. 1, 207 A.D.2d 773, 775-776).
Finally, the Supreme Court properly denied Premier's motion for leave to amend its answer to assert additional cross claims because the proposed amendments suffered the same defect as the original cross claims and were devoid of merit ( see Washington Ave. Assocs. v. Euclid Equipment, Inc., 229 A.D.2d 486, 487-488; Zabas v. Kard, 194 A.D.2d 784).
RITTER, J.P., H. MILLER, CRANE and COZIER, JJ., concur.