| Tom L. LaMere & Assoc., Inc. v City of Syracuse Bd. ofEduc. |
| 2008 NY Slip Op 00750 [48 AD3d 1050] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Tom L. LaMere & Associates, Inc., Appellant, v City of SyracuseBoard of Education et al., Respondents. City of Syracuse Board of Education et al., Third-PartyPlaintiffs, v Hueber-Breuer Construction Co., Inc., et al., Third-Party Defendants-Respondents.City of Syracuse, Fourth-Party Plaintiff, v Harleysville Worcester Insurance Company,Formerly Known as Worcester Insurance Company, et al., Fourth-Party Defendants-Respondents.(Action No. 1.) Tom L. LaMere & Associates, Inc., Appellant, v City of Syracuse et al.,Respondents. (Action No. 2.) |
—[*1] Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., Syracuse (Douglas J. Mahr of counsel),for defendants-respondents. Menter, Rudin & Trivelpiece, P.C., Syracuse (Robert F. Silkey of counsel), for third-partydefendant-respondent Hueber-Breuer Construction Co., Inc.
Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County(James C. Tormey, J.), entered October 23, 2006 in actions for breach of contract. The order andjudgment, inter alia, granted defendants' motions for summary judgment dismissing the amendedcomplaint in action No. 1 and the complaint in action No. 2.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced these actions alleging, inter alia, that defendantsbreached their contract with plaintiff, pursuant to which plaintiff was to perform constructionwork on a school in defendant City of Syracuse (City). Supreme Court properly granteddefendants' motions for summary judgment dismissing the amended complaint in action No. 1and the complaint in action No. 2 based on plaintiff's failure to comply with the notice of claimprovision set forth in Syracuse City Charter § 8-115 (3). Compliance with that provision,"unless waived, is a condition precedent to the commencement" of both actions(Davis-Wallbridge, Inc. v City of Syracuse, 71 NY2d 842, 844 [1988], rearg denied72 NY2d 841 [1988]; see Hecht v City of Syracuse, 201 AD2d 958 [1994], lvdenied 84 NY2d 801 [1994]), and thus plaintiff was required to serve a notice of claim uponthe City "within three (3) months after the accrual of such claim" (Syracuse City Charter §8-115 [3]). "It is well settled that a contractor's claim accrues when its damages are ascertainable"(C.S.A. Contr. Corp. v New York CitySchool Constr. Auth., 5 NY3d 189, 192 [2005]). "Although the determination of thedate on which damages are ascertainable may vary based on the facts and circumstances of eachparticular case, 'it generally has been recognized that damages are ascertainable once the work issubstantially completed or a detailed invoice of the work performed is submitted' " (id.;see Popular Constr. v New York City School Constr. Auth., 268 AD2d 467 [2000]).Here, defendants met their initial burden on the respective motions by submitting evidence thatboth plaintiff and the City considered the project to be substantially completed in August 2002and that plaintiff submitted its last detailed invoice for its work on the project on October 31,2002. Thus, plaintiff's damages were ascertainable no later than October 31, 2002, and its claimsthus accrued at that time. Plaintiff served its first notice of claim on the City on February 4, 2003,and the notice of claim therefore was untimely. Contrary to plaintiff's contention, we concludethat plaintiff failed to raise a triable issue of fact whether its damages were not ascertainable byOctober 31, 2002.
We reject at the outset plaintiff's contention that defendants' motions are premature becausefurther discovery may reveal facts justifying denial of the motions (see CPLR 3212 [f]).That contention is based on mere speculation and thus is insufficient to defeat the motions(see Preferred Capital v PBK, Inc., 309 AD2d 1168, 1169 [2003]).
We further reject the contention of plaintiff that, because it was continuing to performwork on the project as late as October 2003, there is a triable issue of fact with respect to the dateon which the project was substantially completed such that plaintiff could ascertain its damagesfor purposes of filing a notice of claim. As evidenced by its own field report, the only workperformed by plaintiff in October 2003 was incidental punch list work such as caulking windowsills and installing floor mats. A construction project may be deemed completed "even thoughincidental matters relating to the project remain open" (State of New York v Lundin, 60NY2d 987, 989 [1983]). Contrary to plaintiff's contention, the City's subjective belief thatplaintiff failed to complete its work on the project does not constitute evidence that the projectwas not substantially completed to enable plaintiff to ascertain its own damages. Also contrary toplaintiff's contention, the fact that the City notified plaintiff on January 31, 2005 that it was indefault under the contract is irrelevant in determining when plaintiff's claims alleged in action[*2]No. 2 accrued. The record establishes that plaintiff's claimsfor damages in action No. 2 were based on events that occurred prior to August 2002, during thecourse of construction of the project. Thus, the damages sought in action No. 2 also wereascertainable no later than October 31, 2002.Finally, we reject plaintiff's contention that the City should be equitably estopped fromraising the failure to serve a timely notice of claim as an affirmative defense. A municipality"may be estopped from asserting such a defense when, based on its activities, conduct, statementsor writings, or those of its representatives, it lulls a [plaintiff] into taking no action until after the. . . period for [service has] passed" (Lenz Hardware, Inc. v Board of Educ. of Van Hornesville-Owen D. YoungCent. School Dist., 24 AD3d 1278, 1279 [2005] [internal quotation marks omitted]).Here, plaintiff concedes that all of the City's alleged promises to pay plaintiff occurred after itserved its first notice of claim, which as previously noted was after the three-month period forcompliance with the City Charter had passed. Thus, those alleged promises cannot be said tohave lulled plaintiff into taking no action until after the period for service had passed. Further,plaintiff does not allege, nor does the record establish, that the City "led [plaintiff] to believe thatits claims would be viewed favorably and thus [plaintiff] has failed to allege that it was lulledinto taking no action until after the . . . period for service had passed" (id.).Present—Hurlbutt, J.P., Martoche, Smith, Lunn and Peradotto, JJ.