Opinion
11864 Index No. 650578/17 Case No. 2018-3438
09-29-2020
NEW YORK ENVIRONMENTAL & ANALYTICAL LABORATORIES, INC., Plaintiff–Appellant, v. The NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants–Respondents.
Gottesman, Wolgel, Flynn, Weinberg & Lee, P.C., New York (Steven Weinberg of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Gottesman, Wolgel, Flynn, Weinberg & Lee, P.C., New York (Steven Weinberg of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.
Judgment, Supreme Court, New York County (Verna L. Saunders, J.), entered July 23, 2018, dismissing the complaint, and bringing up for review the order, same court and Justice, entered July 3, 2018, which granted defendants' motion to dismiss, unanimously affirmed, without costs.
Claims for payment due under a contract accrue when the party making the claim "possesses a legal right to demand payment," not when the party actually makes the demand (see Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co. , 18 N.Y.3d 765, 770, 944 N.Y.S.2d 742, 967 N.E.2d 1187 [2012] ; Sotheby's, Inc. v. Mao , 173 A.D.3d 72, 78, 100 N.Y.S.3d 27 [1st Dept. 2019], lv. denied 34 N.Y.3d 902, 2019 WL 5382505 [2019] ; Kyer v. Ravena–Coeymans–Selkirk Cent. Sch. Dist. , 144 A.D.3d 1260, 1262, 41 N.Y.S.3d 584 [3d Dept. 2016] ). It is not disputed that the work upon which plaintiff's claims are based was done more than one year before the commencement of this action, notwithstanding when plaintiff demanded payment for the work. Accordingly, plaintiff's claims are time-barred pursuant to Education Law § 3813(2–b).
We have considered plaintiff's remaining arguments and find them unavailing.