Board of Education of Patchogue-Medford Union Free School District v. Kappa Renovation Corp.

133 A.D.2d 823, 520 N.Y.S.2d 399, 1987 N.Y. App. Div. LEXIS 51861

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1987
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 75 to stay arbitration, the Kappa Renovation Corp. (hereinafter Kappa) appeals from a judgment of the Supreme Court, Suffolk County (Jones, J.), dated March 18, 1986, which granted the application and denied its "counterclaim” for leave to serve a late notice of claim. The appeal brings up for review a subsequent order of the same court, entered February 11, 1987, which denied Kappa’s motion to renew its "counterclaim” for leave to serve a late notice of claim (see, CPLR 5517 [a] [3]; [b]).

Ordered that the judgment and the order are affirmed, with one bill of costs.

Under the circumstances herein, we agree with the Supreme Court, Suffolk County, that Kappa, in seeking leave to serve a late notice of claim pursuant to Education Law § 3813 (2-a), failed to establish that it was entitled to that relief.

This case is distinguishable from Matter of Nyack Bd. of Educ. v Capolino Design & Renovation (114 AD2d 849, 850, affd 68 NY2d 647), since there is no evidence herein that the petitioner-respondent had actual knowledge of the facts allegedly underlying Kappa’s $349,402 claim and it cannot be said that the petitioner-respondent would suffer no prejudice if Kappa were permitted to serve a late notice of claim for that sum (see, Education Law § 3813 [2-a]). Lawrence, J. P., Weinstein, Kooper and Sullivan, JJ., concur.