Power Cooling, Inc. v Board of Educ. of City of N.Y.
2008 NY Slip Op 01320 [48 AD3d 536]
February 13, 2008
Appellate Division, Second Department
As corrected through Wednesday, April 16, 2008


Power Cooling, Inc., Appellant,
v
Board of Education ofCity of New York et al., Respondents.

—[*1]Noel W. Hauser, New York, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and ElizabethS. Natrella of counsel), for respondents.

In an action to recover damages in quantum meruit for services rendered, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Hinds-Radix, J.), dated November 20, 2006, as granted the defendants' motion to dismiss thecomplaint based upon its failure to timely serve a notice of claim pursuant to Education Law§ 3813 (1).

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiff's contention, the Supreme Court properly granted the defendants'motion to dismiss the complaint. "The timely presentation of a notice of claim is a conditionprecedent to maintaining claims against [the defendants]" (H. Verby Co. v Carle Place Union Free School Dist., 5 AD3d 730,730 [2004]; see Education Law § 3813 [1]; Public Improvements v Board ofEduc. of City of N.Y., 56 NY2d 850 [1982]). It is undisputed that no notice of claim wasever served in this case. Moreover, the plaintiff's letter dated February 12, 2003, demandingpayment, cannot be deemed the functional equivalent of a notice of claim because, inter alia, itwas not presented to the defendants' governing body as required by the statute (see ParochialBus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]; Clune v Garden City Union Free SchoolDist., 34 AD3d 618 [2006]; Matter of Sainato v Western Suffolk BOCES, 242AD2d 301 [1997]; Spoleta Constr. & Dev. Corp. v Board of Educ. of Byron-Bergen Cent.School Dist., 221 AD2d 927 [1995]; Professional Detail Serv. v Board of Educ. of Cityof N.Y., 104 [*2]AD2d 336 [1984]). In this regard, anyalleged lack of prejudice to the defendants or actual knowledge of the claim by the defendants isirrelevant (see Varsity Tr., Inc. v Boardof Educ. of City of N.Y., 5 NY3d 532, 536 [2005]; Parochial Bus Sys. v Board ofEduc. of City of N.Y., 60 NY2d at 548; Smith v Sagistano, 186 AD2d 180, 183[1992]). Furthermore, there was no evidence of affirmative, misleading conduct by thedefendants to warrant a determination that they waived, or were estopped from asserting, thenotice of claim issue (see e.g.Consolidated Constr. Group, LLC v Bethpage Union Free School Dist., 39 AD3d 792[2007]; Suburban Restoration Co. v Wappingers Cent. School Dist., 256 AD2d 572[1998]; Pope v Hempstead Union Free School Dist. Bd. of Educ., 194 AD2d 654[1993]).

The plaintiff's remaining contentions are improperly raised for the first time on appeal or arewithout merit. Mastro, J.P., Skelos, Florio and Dickerson, JJ., concur.


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