ALFRED SANTINI CO INC v. CITY OF NEW YORK

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Supreme Court, Appellate Division, First Department, New York.

ALFRED SANTINI & CO., INC., Plaintiff-Respondent, v. CITY OF NEW YORK, et al., Defendants-Appellants.

Decided: November 23, 1999

ROSENBERGER, J.P., WILLIAMS, TOM, MAZZARELLI and SAXE, JJ., Michael A. Reisner, for Plaintiff-Respondent. Sharyn Rootenberg, for Defendants-Appellants.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 21, 1998, denying defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.

 A claim for payment from the Board of Education must be preceded by a notice of claim served on the Board within three months of its accrual (Education Law § 3813[1];  Parochial Bus Systems v. Board of Education of the City of New York, 60 N.Y.2d 539, 547-548, 470 N.Y.S.2d 564, 458 N.E.2d 1241), a condition precedent to the maintenance of the action (Castagna & Son v. Board of Education of the City of New York, 151 A.D.2d 392, 542 N.Y.S.2d 622), and untimeliness presents a fatal defect (Parochial Bus Systems v. Board of Education of the City of New York, supra ).   Accrual generally equates with the date upon which the damages are ascertainable (Castagna & Son v. Board of Education of the City of New York, supra ).  For recovery of moneys due and owing out of a contract, the claim accrues at the time payment is denied, a rejection that may be constructively accomplished when, inter alia, the putative debtor declines to timely respond to the claimant's demand letter (Dodge, Chamberlin, Luzine, Weber Architects v. Dutchess County Board of Cooperative Educational Services, 258 A.D.2d 434, 684 N.Y.S.2d 583, lv. denied 93 N.Y.2d 809, 694 N.Y.S.2d 631, 716 N.E.2d 696).  Since plaintiff was made aware by October 1996 that respondent would refuse to pay the claim, as was confirmed by correspondence in November 1996, and further confirmed by defendant's failure to respond within 10 days to plaintiff's demand for payment, as per plaintiff's November 7, 1996 demand letter, plaintiff's March 1997 notice of claim was untimely.

MEMORANDUM DECISION.