Florence Development Corp. v. Board of Education

81 A.D.2d 855, 439 N.Y.S.2d 40, 1981 N.Y. App. Div. LEXIS 11532

Opinion

— Cross appeals by plaintiff and defendant Board of Education from so much of a judgment of the Supreme Court, Richmond County, entered November 15, 1979, as, after a nonjury trial, awarded plaintiff $126,614.46, plus interest and costs. Cross appeal by plaintiff dismissed; it was not properly perfected. Upon the appeal by the board, judgment reversed insofar as appealed from, on the law, with costs, and complaint dismissed as against the board. Plaintiff’s failure to serve a notice of claim upon the defendant Board of Education pursuant to subdivision 1 of section 3813 of the Education Law, necessitates dismissal of the action (see Crescent Elec. Installation Corp. v Board of Educ., 50 NY2d 780). This court’s prior determination in this case that the complaint states a cause of action (Florence Dev. Corp. v Board of Educ., 52 AD2d 836) cannot be construed so as to permit the complaint to stand notwithstanding the failure to comply with the Education Law, for that issue was not raised in the prior appeal. Mangano, J.P., Rabin, Gulotta and Weinstein, JJ., concur.