P & C Giampilis Contracting Co. v. New York City School Construction Authority

Full title: P C GIAMPILIS CONTRACTING CO., INC., Appellant, v. NEW YORK CITY SCHOOL…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 19, 1995

211 A.D.2d 524 (N.Y. App. Div. 1995)

622 N.Y.S.2d 442

Opinion

January 19, 1995

Appeal from the Supreme Court, New York County (Ira Gammerman, J.).

Plaintiff's notice of claim, served July 25, 1991, was not presented to defendant "within three months after the accrual of such claim" (Public Authorities Law § 1744; Education Law § 3813 [former (1)]), i.e., by January 4, 1991, at the latest, when plaintiff submitted to defendant requisitions for payment for services performed prior to the termination of the contracts in issue, and thereby acknowledged that its damages were then "ascertainable" (see, Matter of Board of Educ. [Wager Constr. Corp.], 37 N.Y.2d 283, 290). This defect was fatal to plaintiff's action (see, Pierson v. City of New York, 56 N.Y.2d 950, 955). Also fatal to plaintiff's action, which was commenced on November 19, 1991, was Article 67 of the contracts requiring commencement of an action within six months of their termination, which occurred here on November 21, 1990.

Concur — Rosenberger, J.P., Asch, Rubin and Nardelli, JJ.