William J. Thomann, Inc. v. Auburn Enlarged City School District

176 A.D.2d 1235, 576 N.Y.S.2d 730, 1991 N.Y. App. Div. LEXIS 13960

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1991
• Status: Published

Opinion

— Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment and dismissal of the complaint.

Plaintiff failed to file the notice of claim required by Education Law § 3813 within three months of the time that the project was substantially complete (see, Castagna & Son v Board of Educ., 151 AD2d 392, 393; Public Improvements v Board of Educ., 81 AD2d 537, affd 56 NY2d 850). A question of fact exists, however, whether defendant is estopped from asserting the defense of failure to file the notice of claim (see, Welsh v Gindele & Johnson, 50 AD2d 971).

Supreme Court correctly denied the motion to dismiss the action as time-barred. The cause of action arose for Statute of Limitations purposes when plaintiff “should have viewed his claim as having been rejected” (Arnell Constr. Corp. v Village of N. Tarrytown, 100 AD2d 562, 563, affd 64 NY2d 916; see also, Central School Dist. No. 3 v Kosoff & Sons, 53 AD2d 1058, 1059). Plaintiff stated in its affidavit that it had no notice that its claims were rejected until one month before it served its complaint. (Appeal from Order of Supreme Court, Cayuga County, Contiguglia, J. — Dismiss Complaint.) Present —Callahan, A. P. J., Doerr, Boomer, Balio and Lawton, JJ.