Opinion
October 4, 1991
Appeal from the Supreme Court, Cayuga County, Contiguglia, J.
Present — Callahan, A.P.J., Doerr, Boomer, Balio and Lawton, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant's motion for summary judgment and dismissal of the complaint.
Plaintiff failed to file the notice of claim required by Education Law § 3813 within three months of the time that the project was substantially complete (see, Castagna Son v Board of Educ., 151 A.D.2d 392, 393; Public Improvements v Board of Educ., 81 A.D.2d 537, affd 56 N.Y.2d 850). A question of fact exists, however, whether defendant is estopped from asserting the defense of failure to file the notice of claim (see, Welsh v Gindele Johnson, 50 A.D.2d 971).
Supreme Court correctly denied the motion to dismiss the action as time-barred. The cause of action arose for Statute of Limitations purposes when plaintiff "should have viewed his claim as having been rejected" (Arnell Constr. Corp. v Village of N. Tarrytown, 100 A.D.2d 562, 563, affd 64 N.Y.2d 916; see also, Central School Dist. No. 3 v Kosoff Sons, 53 A.D.2d 1058, 1059). Plaintiff stated in its affidavit that it had no notice that its claims were rejected until one month before it served its complaint.