A. D. Walker & Co. v. Board of Education

Appellate Division of the Supreme Court of New York

A. D. Walker & Co. v. Board of Education

43 A.D.2d 868, 351 N.Y.S.2d 453, 1974 N.Y. App. Div. LEXIS 5880

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 28, 1974

StatusPublished

Cited by1 cases

This text of 43 A.D.2d 868 (A. D. Walker & Co. v. Board of Education) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

A. D. Walker & Co. v. Board of Education, 43 A.D.2d 868, 351 N.Y.S.2d 453, 1974 N.Y. App. Div. LEXIS 5880 (N.Y. Ct. App. 1974).

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Opinion

In an action to recover money for extra work performed in building construction, plaintiff appeals from an order of the Supreme Court," Westchester County, dated April 30, 1973, which denied its motion for leave to serve on defendant, nunc pro tune as of January 1, 1973, a written verified claim of $60,392, the amount alleged in the complaint to be owing. Order affirmed, with $20 costs and disbursements and without prejudice to plaintiff’s proceeding as indicated hereinbelow. Plaintiff made the motion in question because it had failed to present a timely claim to respondent, that is, within three months after the accrual of the cause of action alleged in the complaint, as required by section 3813 of the Education Law. Thus, prima facie it is barred from proceeding on that cause of action. In our opinion, "Special Term properly exercised its discretion in denying the motion. By a prior order of the Special Term, dated January 5, 1973, plaintiff’s original complaint was dismissed, with leave to serve a “new complaint”. Whether plaintiff in the “new” complaint can plead facts equitably estopping defendant from relying on section 3813 of the Education Law is not before us on this appeal. Thus, this determination is without prejudice to plaintiff’s proceeding under the order dated January 5, 1973, or for any other relief which Special Term may grant to plaintiff in extension and clarification of that order (cf. McCullough v. Board of JSduc., Rgmapo Cent. School Dist. No. 2, 11 A D 2d 740; "General Obligations Law, § 17-103, subd. 4, par. b). Gulotta, P. J. Hopkins, Martuscello, Shapiro and Munder, JJ., concur.

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In an action to recover money for extra work performed in building construction, plaintiff appeals from an order of the Supreme Court," Westchester County, dated April 30, 1973, which denied its motion for leave to serve on defendant, nunc pro tune as of January 1, 1973, a written verified claim of $60,392, the amount alleged in the complaint to be owing. Order affirmed, with $20 costs and disbursements and without prejudice to plaintiff’s proceeding as indicated hereinbelow. Plaintiff made the motion in question because it had failed to present a timely claim to respondent, that is, within three months after the accrual of the cause of action alleged in the complaint, as required by section 3813 of the Education Law. Thus, prima facie it is barred from proceeding on that cause of action. In our opinion, "Special Term properly exercised its discretion in denying the motion. By a prior order of the Special Term, dated January 5, 1973, plaintiff’s original complaint was dismissed, with leave to serve a “new complaint”. Whether plaintiff in the “new” complaint can plead facts equitably estopping defendant from relying on section 3813 of the Education Law is not before us on this appeal. Thus, this determination is without prejudice to plaintiff’s proceeding under the order dated January 5, 1973, or for any other relief which Special Term may grant to plaintiff in extension and clarification of that order (cf. McCullough v. Board of JSduc., Rgmapo Cent. School Dist. No. 2, 11 A D 2d 740; "General Obligations Law, § 17-103, subd. 4, par. b). Gulotta, P. J. Hopkins, Martuscello, Shapiro and Munder, JJ., concur.

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Bluebook (online)

43 A.D.2d 868, 351 N.Y.S.2d 453, 1974 N.Y. App. Div. LEXIS 5880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-d-walker-co-v-board-of-education-nyappdiv-1974.

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