34 COMPANY INC v. << (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of the Arbitration Between TOWN OF ALBION, Petitioner-appellant, 34 & COMPANY, INC., Respondent-Respondent.

Decided: June 18, 1999

PRESENT: DENMAN, P.J., GREEN, HAYES, SCUDDER and BALIO, JJ.

Mark A. Ventrone, Syracuse, for Petitioner-Appellant. Amy M. Bittner, Syracuse, for Respondent-Respondent.

Petitioner, Town of Albion (Town), appeals from an order and judgment dismissing its application to stay arbitration of respondent's claim alleging that the Town breached a construction contract. The Town sought a stay of arbitration on the ground that respondent had not served its notices of claim within six months of the accrual of the cause of action as required by Town Law § 65(3) (see generally, CPLR 7502[b]; 7503[b] ).

The breach of contract did not occur when the Town issued change orders and delayed in giving approvals, as argued by the Town, but rather when the Town refused respondent's demand for compensation for extra costs incurred as a result of those changes and delays. In accordance with contract provisions regarding final payment, respondent did not demand such adjustments of the contract price until the project was substantially completed. Therefore, the notices of claim were timely under Town Law § 65(3), and respondent timely sought arbitration of its claim for breach of contract.

Order and judgment unanimously affirmed with costs.

MEMORANDUM:

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