Opinion
05-06-2015
LABERGE ENGINEERING & CONSULTING GROUP, LTD., respondent, v. TOWN OF BEEKMAN, appellant.
Klein Varble & Associates, P.C., Poughkeepsie, N.Y. (Michael R. Varble and Andre Sedlak of counsel), for appellant. Couch White, LLP, Albany, N.Y. (Nathan R. Sabourin and James J. Barriere of counsel), for respondent.
Klein Varble & Associates, P.C., Poughkeepsie, N.Y. (Michael R. Varble and Andre Sedlak of counsel), for appellant.
Couch White, LLP, Albany, N.Y. (Nathan R. Sabourin and James J. Barriere of counsel), for respondent.
Opinion
In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Dutchess County (Brands, J.), entered April 5, 2013, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $97,445.
ORDERED that the judgment is affirmed, with costs.
Contrary to the defendant's contention, the Supreme Court's award of damages to the plaintiff in the principal sum of $97,445 was warranted by the facts (see DiCarlo Distribs., Inc. v. Hampton Bays Diner Corp., 120 A.D.3d 612, 613, 992 N.Y.S.2d 54 ; Elkin v. Urarn Assoc., 72 A.D.3d 734, 736, 899 N.Y.S.2d 312 ; see also Pencom Sys. v. Shapiro, 193 A.D.2d 561, 598 N.Y.S.2d 212 ; Support Sys. Assoc. v. Tavolacci, 135 A.D.2d 704, 707, 522 N.Y.S.2d 604 ; Santa's Workshop v. Sterling, 2 A.D.2d 262, 267, 153 N.Y.S.2d 839, affd. 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529 ).
We decline to consider the defendant's contention, raised for the first time on appeal, that the plaintiff failed to serve a notice of claim pursuant to Town Law § 65(3). “While service of a notice of claim is a statutory condition precedent” (Flanagan v. Board of Educ. v Commack Union Free School District., 47 N.Y.2d 613, 617, 419 N.Y.S.2d 917, 393 N.E.2d 991 ) and “the failure to serve a timely notice of claim may be raised any time prior to trial” (Dorce v. United Rentals N. Am., Inc., 78 A.D.3d 1110, 1111, 915 N.Y.S.2d 79 ), the issue is not properly before this Court on appeal because it was not raised before the Supreme Court (see Agress v. Clarkstown Cent. School Dist., 69 A.D.3d 769, 772, 895 N.Y.S.2d 432 ; Galante v. County of Nassau, 210 A.D.2d 201, 202, 620 N.Y.S.2d 265 ). The defendant did not raise the issue of lack of notice until the instant appeal, approximately four years after the action was commenced, and after allowing the case to proceed through trial.
SKELOS, J.P., DILLON, AUSTIN and HINDS–RADIX, JJ., concur.