| Mainline Elec. Corp. v East Quogue Union Free School Dist. |
| 2007 NY Slip Op 10518 [46 AD3d 859] |
| December 26, 2007 |
| Appellate Division, Second Department |
| Mainline Electric Corp., Appellant, v East Quogue UnionFree School District, Respondent. |
—[*1] Ingerman Smith, LLP, Hauppauge, N.Y. (Antonia L. Hamblin of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Costello,J.), dated May 8, 2006, as granted that branch of the defendant's motion which was pursuant toCPLR 3211 (a) (5) to dismiss the complaint as time-barred and denied as untimely its crossmotion for leave to serve a late notice of claim pursuant to Education Law § 3813 (2-a).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the defendant's motion which was to pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint as time-barred and substituting therefor a provision denying that branch of the motionand (2) by deleting the provision thereof denying as untimely the plaintiff's cross motion forleave to serve a late notice of claim pursuant to Education Law § 3813 (2-a) andsubstituting therefor a provision denying the cross motion as unnecessary; as so modified, theorder is affirmed insofar as appealed from, with costs to the plaintiff.
In the fall of 1998 the defendant East Quogue Union Free School District (hereinafter theSchool District) selected the plaintiff as the prime electrical contractor on a project to renovatethe East Quogue Elementary School. Pursuant to a contract dated November 19, 1998, the SchoolDistrict agreed to pay the plaintiff the sum of $667,735 for its work "subject to additions anddeductions as provided in the Contract Documents." Article 5 of the contract further providedthat final payment, consisting of the entire unpaid balance of the contract sum, would be made by[*2]the School District to the plaintiff when the contract was fullyperformed and a final certificate for payment had been issued by the architect. Article 6 of thecontract stated that such final payment shall be made by the School District "not more than 30days after the issuance of the Architect's final Certificate for Payment . . . or as soonthereafter as is practicable." Although most of the plaintiff's work on the project was completedin December 2000, work on "punch list" items continued through February 2003. The plaintiff'sefforts to "close out" the project and receive final payment were the subject of variousdiscussions, meetings, and correspondence between the parties which extended throughSeptember 26, 2003, when the plaintiff sent the School District a letter, entitled "final demand,"seeking payment of its final requisition (hereinafter the final billing requisition). The SchoolDistrict never responded to the final billing requisition. The plaintiff subsequently commencedthis action against the School District on November 18, 2004 and the School District moved,inter alia, to dismiss the complaint as time-barred. The Supreme Court granted that branch of theSchool District's motion which was to dismiss the complaint as time-barred, concluding that theplaintiff's cause of action alleging a breach of contract accrued in September 2003, when theplaintiff sent its final billing requisition. We disagree.
Education Law § 3813 (2-b) provides that no action may be maintained against aschool district more than one year after the cause of action arose. A cause of action to recoverdamages for breach of contract arises, and the statute of limitations begins to run, from the timeof the breach (see John J. Kassner & Co. v City of New York, 46 NY2d 544, 550 [1979];Capstone Enters. of Port Chester, Inc. vValhalla Union Free School Dist., 27 AD3d 411 [2006]; D.J.H. Mech. Assoc., Ltd. v Mahopac Cent.School Dist., 21 AD3d 521 [2005]). "A breach of contract can be said to occur when theclaimant's bill is expressly rejected, or when the 'party seeking payment should have viewed hisclaim as having been constructively rejected' " (Henry Boeckmann, Jr. & Assoc. v Board ofEduc., Hempstead Union Free School Dist. No. 1, 207 AD2d 773, 775 [1994], quotingHelmer-Cronin Constr. v Beacon Community Dev. Agency, 156 AD2d 543, 544 [1989];see James McCullagh Co., Inc. v SouthHuntington Union Free School Dist., 39 AD3d 480 [2007]; Capstone Enters. of Port Chester, Inc. vValhalla Union Free School Dist., 27 AD3d 411 [2006]).
Here, the School District failed to establish that it either expressly or constructively rejectedthe plaintiff's final billing requisition at any point prior to the commencement of this action inNovember 2004 (see Matter of PiazzaBros., Inc. v Board of Educ. of Mahopac Cent. School Dist., 29 AD3d 701 [2006]; D.J.H. Mech. Assoc., Ltd. v Mahopac Cent.School Dist., 21 AD3d 521 [2005]). Contrary to the School District's contention, itsfailure to respond to letters dated July 28, 2003 and September 2, 2003, cannot be deemedconstructive rejection because these letters did not impose a deadline for payment of theplaintiff's final billing requisition (cf. Alfred Santini & Co. v City of New York, 266AD2d 119 [1999]; Dodge, Chamberlin, Luzine, Weber Architects v Dutchess County Bd. ofCoop. Educ. Servs., 258 AD2d 434 [1999]). Moreover, the School District's failure torespond to the plaintiff's final billing requisition of September 26, 2003, within 30 days cannot bedeemed a constructive rejection (cf.Matter of Hawthorne Cedar Knolls Union Free School Dist. v Carey & Walsh, Inc., 36AD3d 810 [2007]). Contrary to the School District's contention, the contract did not imposean unequivocal 30-day deadline in which final payment was to be made. Moreover, the SchoolDistrict's obligation to make payment was not triggered until the issuance of a final certificate ofpayment by the project architect, and the School District has offered no evidence that such acertificate was ever issued. In the absence of any evidence that the plaintiff's final billingrequisition was ever actually or constructively rejected, the Supreme Court erred in dismissingthe plaintiff's complaint as time-barred.[*3]
Since the plaintiff's breach of contract cause of actionagainst the School District had not yet accrued when the plaintiff submitted its cross motion forleave to serve a late notice of claim, and a notice of claim is not required until the final billingrequisition is rejected, the plaintiff's cross motion for leave to serve a late notice of claim shouldhave been denied as unnecessary.
Although the School District may raise arguments which provide an alternative basis foraffirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539[1983]; Schramm v Cold Spring HarborLab., 17 AD3d 661 [2005]), its remaining contentions are not properly before this Courtbecause they either do not provide an alternative basis for affirmance of the portion of the orderappealed from, or are raised for the first time on appeal. Spolzino, J.P., Krausman, Fisher andAngiolillo, JJ., concur.