DODGE CHAMBERLIN LUZINE WEBER ARCHITECTS v. DUTCHESS COUNTY BOARD OF COOPERATIVE EDUCATIONAL SERVICES (1999)

In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), dated December 19, 1997, which, upon an order of the same court dated November 10, 1997, granting the defendant's motion to dismiss the amended complaint for failure to serve a timely notice of claim, dismissed the amended complaint.   The notice of appeal from the order dated November 10, 1997, is deemed a premature notice of appeal from the judgment (see, CPLR 5501[c] ).

ORDERED that the judgment is affirmed, with costs.

In August 1994 the plaintiff submitted invoices to the defendant seeking payment for certain engineering and design work it had performed.   A dispute arose over the amounts due, and the invoices remained unpaid for several months.   Eventually, by letters dated May 5, 1995, the plaintiff advised the defendant and the defendant's attorney that unless the invoices were paid within 10 days, it would terminate its relationship with the defendant and commence an action to recover the amounts it claimed were due.   The deadline passed without any payments being made.   In November 1995 the plaintiff filed a notice of claim for the disputed amounts.

Pursuant to Education Law § 3813, no action may be maintained against, among others, a board of cooperative educational services unless a notice of claim was served “within three months after the accrual of such claim” (Education Law § 3813[1] ).   Furthermore, in actions for “monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied” (Education Law § 3813 [1] ).   Here, the plaintiff's May 5, 1995, letters informed the defendant that if it did not pay the invoices within 10 days of receipt thereof, the plaintiff would commence an action against the defendant.   Upon the expiration of that period without approval or payment, the plaintiff's claims were constructively rejected and its cause of action accrued (see, Memphis Constr. v. Village of Moravia, 59 A.D.2d 646, 647, 398 N.Y.S.2d 386;  see also, City of New York v. State of New York, 40 N.Y.2d 659, 668-669, 389 N.Y.S.2d 332, 357 N.E.2d 988;  Rason Asphalt v. Town of Oyster Bay, 8 Misc.2d 411, 167 N.Y.S.2d 175, mod. 6 A.D.2d 810, 175 N.Y.S.2d 302).   Accordingly, the notice of claim filed nearly six months later was untimely, and the court correctly dismissed the complaint.

MEMORANDUM BY THE COURT.