Opinion
December 28, 1998
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the order and judgment is affirmed, with costs.
Education Law § 3813 (1) requires a notice of claim to be served upon the governing body of a school district within three months after the accrual of a claim. The timely service of a notice of claim is a condition precedent to the commencement of an action against a school district ( see, Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539; Public Improvements v. Board of Educ., 56 N.Y.2d 850). For contracts entered into before July 17, 1992, a claim accrues, and the three-month period begins to run, when the contractor's damages become 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). As a general rule, damages are considered ascertainable under this standard once the work is substantially completed, or a detailed invoice of the work has been submitted ( see, Matter of Board of Educ. [Merritt Meridian Constr. Corp.], 210 A.D.2d 854; G.A. Contrs. v. Board of Educ., supra).
Applying these principles to the instant case, the Supreme Court properly dismissed the plaintiff's complaint for failure to timely serve a notice of claim. Here, the plaintiff's claim accrued, at the latest, on July 13, 1990, when it submitted an invoice to the defendant Wappingers Central School District (hereinafter the School District) demanding payment of the full contract price plus an additional sum for extra work documented in six change orders which accompanied the invoice. The invoice indicated that as of July 13, 1990, all but a small percentage of the work for which the plaintiff sought compensation had been performed, and the plaintiff had ascertained the value of the work which still remained to be done. Accordingly, the plaintiff's notice of claim, served more than three months after it submitted its invoice to the School District, was untimely ( see, Giampilis Contr. Co. v. New York City School Constr. Auth., 211 A.D.2d 524; Matter of Prote Contr. Co. v. Board of Educ., 198 A.D.2d 418; Amsterdam Wrecking Salvage Co. v. Greater Amsterdam School Dist., 83 A.D.2d 654, affd 56 N.Y.2d 828).
Furthermore, while a school district may be estopped from asserting a notice of claim defense where its affirmative conduct has induced the other side to delay serving the notice of claim ( see, Smith v. Sagistano, 186 A.D.2d 180), the plaintiff's submissions are insufficient to raise an issue of' fact as to whether the conduct of the School District's representatives induced it to delay serving its notice of claim.
Copertino, J. P., Joy, Krausman and Goldstein, JJ., concur.