BRONCO BUS CORP v. CITY OF YONKERS BOARD OF EDUCATION

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

BRONCO BUS CORP., Respondent, v. CITY OF YONKERS BOARD OF EDUCATION, Appellant.

Decided: May 18, 1998

Before RITTER, J.P., and GOLDSTEIN, McGINITY and LUCIANO, JJ. Anderson, Banks, Curran & Donoghue, Yonkers (Suzanne Johnston, of counsel), for appellant. Martin S. Fishman, Suffern, for respondent.

In an action to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Donovan, J.), entered December 19, 1995, which denied its motion for summary judgment dismissing the complaint, and (2) so much of an order of the same court, entered March 26, 1996, as denied that branch of its motion which was for leave to renew.

ORDERED that the order entered December 19, 1995, is reversed, on the law, the motion for summary judgment is granted, and the complaint is dismissed;  and it is further,

ORDERED that the appeal from the order entered March 26, 1996, is dismissed as academic;  and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The plaintiff Bronco Bus Corp. (hereinafter Bronco) supplied charter bus services to the defendant City of Yonkers Board of Education (hereinafter Yonkers).   In 1995 Bronco commenced this suit to recover payment for services rendered from November 25, 1991, through June 2, 1993.   Bronco claimed that the invoices which it had submitted for these services, but which remained unpaid, had “fallen through the cracks”.   Yonkers answered, and moved for summary judgment dismissing the complaint on the ground that the action was barred by Education Law § 3813 because Bronco had failed to file a verified notice of claim within 90 days of the accrual of each claim, and because Bronco had not commenced an action on each claim within one year of the accrual of each claim (see, Parochial Bus Systems 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).   In response, Bronco alleged, inter alia, that the invoices themselves constituted adequate notice of its claims and that Yonkers was estopped from asserting a defense under Education Law § 3813.   In the first order appealed from, the Supreme Court denied Yonkers' motion for summary judgment.   The court held, inter alia, that the invoices constituted proper notices of claim, and that Yonkers was estopped from interposing a defense pursuant to Education Law § 3813.   Further, the court, in effect, granted Bronco leave to file a late verified notice of claim.   We disagree.

 It is undisputed that Bronco failed to serve a verified notice of claim pursuant to Education Law § 3813(1) as to any of the disputed invoices prior to the commencement of this action (see, Parochial Bus Systems v. Board of Educ. of City of N.Y., supra).   Further, Bronco failed to raise a triable issue of fact that the alleged filing of the disputed invoices with Yonkers constituted substantial compliance with the notice of claim requirements (see, Parochial Bus Systems v. Board of Educ. of City of N.Y., supra;  Matter of Cardia-Zalaman v. Board of Educ. of Elmsford Union Free School Dist., 233 A.D.2d 391, 650 N.Y.S.2d 19;  Hygrade Insulators v. Board of Educ. of Middle Country Cent. School Dist., 207 A.D.2d 430, 615 N.Y.S.2d 744;  Rutigliano v. Board of Educ. of City of N.Y., 176 A.D.2d 866, 575 N.Y.S.2d 339).   Therefore, the motion for summary judgment should have been granted.

 To the extent that order appealed from, in effect, granted Bronco leave to file a late notice of claim, it was an improvident exercise of discretion.   Not only does it appear that Yonkers would be substantially prejudiced in its defense on the merits due to the delay, but also, Bronco failed to raise a triable issue of fact, inter alia, that Yonkers or an agent thereof acquired actual knowledge of the essential facts of its claim within the relevant time frame, or within a reasonable time thereafter (see, Education Law § 3813[2-a];  Matter of Jackson v. City of New Rochelle, 227 A.D.2d 483, 643 N.Y.S.2d 127;  Matter of Rusiecki v. Clarkstown Cent. School Dist., 227 A.D.2d 493, 643 N.Y.S.2d 132).

 Finally, Bronco failed to raise a triable issue of fact that Yonkers should be estopped from interposing a defense pursuant to Education Law § 3813 (see, e.g., Novak & Co., L.T. v. Board of Educ. of City of N.Y., 217 A.D.2d 575, 628 N.Y.S.2d 597;  Henry Boeckmann, Jr. & Assocs. v. Board of Educ., Hempstead Union Free School Dist. No. 1, 207 A.D.2d 773, 616 N.Y.S.2d 395;  Campbell v. City of New York, 203 A.D.2d 504, 611 N.Y.S.2d 248).

MEMORANDUM BY THE COURT.

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