POWER COOLING INC v. BOARD OF EDUCATION OF CITY OF NEW YORK (2008)

In an action to recover damages in quantum meruit for services rendered, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated November 20, 2006, as granted the defendants' motion to dismiss the complaint based upon its failure to timely serve a notice of claim pursuant to Education Law § 3813(1).

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the plaintiff's contention, the Supreme Court properly granted the defendants' motion to dismiss the complaint.  “The timely presentation of a notice of claim is a condition precedent to maintaining claims against [the defendants]” (H. Verby Co. v. Carle Place Union Free School Dist., 5 A.D.3d 730, 730, 773 N.Y.S.2d 601;  see Education Law § 3813 [1];  Public Improvements v. Board of Educ. of City of N.Y., 56 N.Y.2d 850, 453 N.Y.S.2d 170, 438 N.E.2d 876).   It is undisputed that no notice of claim was ever served in this case.   Moreover, the plaintiff's letter dated February 12, 2003, demanding payment, cannot be deemed the functional equivalent of a notice of claim because, inter alia, it was not presented to the defendants' governing body as required by the statute (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241;  Clune v. Garden City Union Free School Dist., 34 A.D.3d 618, 826 N.Y.S.2d 87;  Matter of Sainato v. Western Suffolk BOCES, 242 A.D.2d 301, 661 N.Y.S.2d 43;  Spoleta Constr. & Dev. Corp. v. Board of Educ. of Byron-Bergen Cent. School Dist., 221 A.D.2d 927, 634 N.Y.S.2d 300;  Professional Detail Serv. v. Board of Educ. of City of N.Y., 104 A.D.2d 336, 479 N.Y.S.2d 40).   In this regard, any alleged lack of prejudice to the defendants or actual knowledge of the claim by the defendants is irrelevant (see Varsity Tr., Inc. v. Board of Educ. of City of N.Y., 5 N.Y.3d 532, 536, 806 N.Y.S.2d 457, 840 N.E.2d 569;  Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d at 548, 470 N.Y.S.2d 564, 458 N.E.2d 1241;  Smith v. Sagistano, 186 A.D.2d 180, 183, 587 N.Y.S.2d 764).   Furthermore, there was no evidence of affirmative, misleading conduct by the defendants to warrant a determination that they waived, or were estopped from asserting, the notice of claim issue (see e.g. Consolidated Constr. Group, LLC v. Bethpage Union Free School Dist., 39 A.D.3d 792, 835 N.Y.S.2d 630;  Suburban Restoration Co. v. Wappingers Cent. School Dist., 256 A.D.2d 572, 683 N.Y.S.2d 109;  Pope v. Hempstead Union Free School Dist. Bd. of Educ., 194 A.D.2d 654, 598 N.Y.S.2d 814).

The plaintiff's remaining contentions are improperly raised for the first time on appeal or are without merit.