NEW YORK RACING ASSOCIATION INC v. NEW YORK CITY OFF TRACK BETTING CORPORATION (2008)

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered February 14, 2007, dismissing the complaint, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered January 26, 2007, which denied plaintiff's motion for summary judgment and granted defendant's cross motion to dismiss the complaint for failure to timely serve a notice of claim, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

 Plaintiff's failure to serve a notice of claim within 90 days after defendant's alleged breach of the parties' Memorandum of Understanding is a bar to the instant action (see Racing, Pari–Mutuel Wagering and Breeding Law § 618;  Zoll v. New York City Off–Track Betting Corp., 258 A.D.2d 267, 685 N.Y.S.2d 34 [1999], lv. denied 94 N.Y.2d 754, 700 N.Y.S.2d 427, 722 N.E.2d 507 [1999];  see also Zoll v. Suffolk Regional Off–Track Betting Corp., 259 A.D.2d 696, 686 N.Y.S.2d 858 [1999] ).  Plaintiff's claim accrued when its damages were ascertainable (see C.S.A. Contr. Corp. v. New York City School Constr. Auth., 5 N.Y.3d 189, 192–193, 800 N.Y.S.2d 123, 833 N.E.2d 266 [2005];  Alfred Santini & Co. v. City of New York, 266 A.D.2d 119, 698 N.Y.S.2d 678 [1999], lv. denied 95 N.Y.2d 752, 711 N.Y.S.2d 154, 733 N.E.2d 226 [2000] ), i.e., after it received the first of defendant's monthly payments that did not include the increase allegedly due under the renewal provision of the Memorandum of Understanding.  Plaintiff did not file its notice of claim until more than 10 months after it received the payment.

Plaintiff's estoppel argument has no support in the record.

We have considered plaintiff's remaining arguments and find them unavailing.