In re the Arbitration between Town of Albion & 34 & Co.

Appellate Division of the Supreme Court of New York

In re the Arbitration between Town of Albion & 34 & Co.

262 A.D.2d 1006, 693 N.Y.S.2d 793, 1999 N.Y. App. Div. LEXIS 7205

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

DecidedJune 18, 1999

StatusPublished

This text of 262 A.D.2d 1006 (In re the Arbitration between Town of Albion & 34 & Co.) 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

In re the Arbitration between Town of Albion & 34 & Co., 262 A.D.2d 1006, 693 N.Y.S.2d 793, 1999 N.Y. App. Div. LEXIS 7205 (N.Y. Ct. App. 1999).

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Opinion

—Order and judgment unanimously affirmed with costs. Memorandum: Petitioner, Town of Albion (Town), appeals from an order and judgment dismissing its application to stay arbitration of respondent’s claim alleging that the Town [1007]*1007breached a construction contract. The Town sought a stay of arbitration on the ground that respondent had not served its notices of claim within six months of the accrual of the cause of action as required by Town Law § 65 (3) (see generally, CPLR 7502 [b]; 7503 [b]).

The breach of contract did not occur when the Town issued change orders and delayed in giving approvals, as argued by the Town, but rather when the Town refused respondent’s demand for compensation for extra costs incurred as a result of those changes and delays. In accordance with contract provisions regarding final payment, respondent did not demand such adjustments of the contract price until the project was substantially completed. Therefore, the notices of claim were timely under Town Law § 65 (3), and respondent timely sought arbitration of its claim for breach of contract. (Appeal from Order and Judgment of Supreme Court, Oswego County, Hurl-butt, J. — Arbitration.) Present — Denman, P. J., Green, Hayes, Scudder and Balio, JJ.

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—Order and judgment unanimously affirmed with costs. Memorandum: Petitioner, Town of Albion (Town), appeals from an order and judgment dismissing its application to stay arbitration of respondent’s claim alleging that the Town [1007]*1007breached a construction contract. The Town sought a stay of arbitration on the ground that respondent had not served its notices of claim within six months of the accrual of the cause of action as required by Town Law § 65 (3) (see generally, CPLR 7502 [b]; 7503 [b]).

The breach of contract did not occur when the Town issued change orders and delayed in giving approvals, as argued by the Town, but rather when the Town refused respondent’s demand for compensation for extra costs incurred as a result of those changes and delays. In accordance with contract provisions regarding final payment, respondent did not demand such adjustments of the contract price until the project was substantially completed. Therefore, the notices of claim were timely under Town Law § 65 (3), and respondent timely sought arbitration of its claim for breach of contract. (Appeal from Order and Judgment of Supreme Court, Oswego County, Hurl-butt, J. — Arbitration.) Present — Denman, P. J., Green, Hayes, Scudder and Balio, JJ.

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Bluebook (online)

262 A.D.2d 1006, 693 N.Y.S.2d 793, 1999 N.Y. App. Div. LEXIS 7205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-town-of-albion-34-co-nyappdiv-1999.

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