PICCO SONS CONTRACTING CO INC v. BOARD OF EDUCATION OF BRONXVILLE SCHOOL (2006)

In an action to recover damages for breach of a construction contract, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered May 25, 2005, which, inter alia, denied its motion to dismiss the complaint for failure to serve a verified notice of claim.

ORDERED that the order is affirmed, with costs.

Contrary to the defendant's contention, the Supreme Court properly determined that the plaintiff was excused from complying with the statutory notice of claim requirement in Education Law § 3813.   The detailed grievance procedures of the parties' contract were “plainly inconsistent with those contained in [Education Law § 3813], thus indicating the parties' apparent intention to waive the normal applicability of section 3813 to proceedings such as this” (Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.], 45 A.D.2d 85, 86, 356 N.Y.S.2d 689;  see Civil Serv. Empl. Assn. v. Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak, 230 A.D.2d 703, 646 N.Y.S.2d 357;  cf. Davis-Wallbridge, Inc. v. City of Syracuse, 71 N.Y.2d 842, 843, 527 N.Y.S.2d 736, 522 N.E.2d 1034).

The defendant's remaining contentions are either without merit (see e.g. D.J.H. Mech. Assoc., Ltd. v. Mahopac Cent. School Dist., 21 A.D.3d 521, 522, 799 N.Y.S.2d 907) or need not be reached in light of our determination.