COVANTA NIAGARA PLAINTIFF RESPONDENT APPELLANT v. TOWN OF AMHERST DEFENDANT APPELLANT REPSONDENT (2010)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered February 3, 2009 in an action for breach of contract.   The order denied plaintiff's motion for partial summary judgment on the issue of liability and denied defendant's cross motion to dismiss the complaint.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the cross motion in part and dismissing those claims in the first cause of action that accrued prior to September 30, 2006 and as modified the order is affirmed without costs.

Plaintiff subsequently filed a notice of claim on March 21, 2007 and commenced the instant action asserting three causes of action:  first, for breach of contract seeking to recover the difference between what defendant actually paid and the contract rate during the time period from July 2004 through December 2006;  second, for an account stated seeking to recover the above sum on that theory;  and third, a cause of action seeking to recover the difference between what defendant actually paid and the contract rate for services rendered during the time period from August 2006 through December 2006, which, according to plaintiff, is the sixth-month notice of claim period.   Plaintiff thereafter moved for partial summary judgment on the issue of liability with respect to the third cause of action, and defendant cross-moved to dismiss the complaint on the grounds that the action was barred by the doctrine of res judicata based on the dismissal of the complaint in the prior action against the District, the action was barred based on plaintiff's failure to file a notice of claim as required by Town Law § 65(3), and the action was time-barred based on plaintiff's failure to commence the action within the 18-month statute of limitations set forth in that statute.   Defendant now appeals from the order insofar as it denied defendant's cross motion, and plaintiff cross-appeals from the order insofar as it denied plaintiff's motion.   We conclude that Supreme Court should have granted the cross motion in part and dismissed those claims in the first cause of action that accrued prior to September 30, 2006, and we therefore modify the order accordingly.

Patricia L. Morgan

Clerk of the Court