ASSOCIATES INC v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY

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

D & L ASSOCIATES, INC., Plaintiff–Appellant, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Defendant–Respondent.

Decided: January 07, 2010

FRIEDMAN, J.P., NARDELLI, RENWICK, ROMÁN, JJ. Peckar & Abramson, P.C., New York (Charles E. Williams, III of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered October 15, 2008, which, in an action for breach of contract, granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

 Certificates of Substantial Completion were executed more than three months prior to plaintiff contractor's filing its notice of claim for three of the four contracts on which it sought to recover.   Such Certificates fixed the date on which damages were ascertainable, and therefore when plaintiff's claim accrued (see C.S.A. Contr. Corp. v. New York City School Constr. Auth., 5 N.Y.3d 189, 192, 800 N.Y.S.2d 123, 833 N.E.2d 266 [2005];  Koren–DiResta Constr. Co., Inc. v. New York City School Const. Auth., 293 A.D.2d 189, 191–192, 740 N.Y.S.2d 56 [2002] ).   Accordingly, since three of plaintiff's contract claims accrued more than three months before the notice of claim is dated, they are barred by the late filing of the notice of claim.

 Plaintiff's fourth contract claim is also time-barred as beyond the one-year statute of limitations set forth in Public Authorities Law § 1744(2).   Given that plaintiff's September 2002 notice of claim alleged that defendant breached the contract, it triggered the running of the one-year statute of limitations (Koren–DiResta Constr. Co., 293 A.D.2d at 192, 740 N.Y.S.2d 56), irrespective of whether or not plaintiff knew the precise amount of damages, or even if no damages occur until later (see Ely–Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985 [1993] ).

 We decline to consider plaintiff's arguments relying on Lien Law article 3–A, which are improperly raised for the first time on appeal (see D.A.G. Floors, Inc. v. St. Paul Mercury Ins. Co., 35 A.D.3d 207, 827 N.Y.S.2d 20 [2006] ).   Were we to consider these arguments, we would find them unavailing.   The fact that defendant may have paid plaintiff's subcontractors after the dates of substantial completion and that plaintiff was acting as a statutory trustee for the benefit of the subcontractors did not create a circumstance that made it impossible to ascertain the magnitude of the claim.   The fact remains that damages were ascertainable when the work was substantially complete.