| East Hampton Union Free School Dist. v Sandpebble Bldrs.,Inc. |
| 2011 NY Slip Op 09263 [90 AD3d 821] |
| December 20, 2011 |
| Appellate Division, Second Department |
| East Hampton Union Free School District,Appellant, v Sandpebble Builders, Inc., et al., Respondents. |
—[*1] Esseks, Jefter & Angel, LLP, Riverhead, N.Y. (Stephen R. Angel, Theodore D. Sklar, andNancy Silverman of counsel), for respondents.
In an action, inter alia, for a judgment declaring that a contract dated April 2002 is void andunenforceable, the plaintiff appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Pines, J.), dated May 12, 2010, as denied those branches of itsmotion which were to dismiss the counterclaims of the defendant Sandpebble Builders, Inc.,pursuant to CPLR 3211 (a) (5) as time-barred, and for failure to serve proper and timely noticesof claim.
Ordered that the order is affirmed insofar as appealed from, with costs.
In April 2002 the President of the Board of Education of the plaintiff, East Hampton UnionFree School District (hereinafter the School District), executed a contract, ostensibly on behalf ofthe School District, providing that the defendant Sandpebble Builders, Inc. (hereinafterSandpebble), would serve as a construction manager in renovating certain schools. Additionally,Sandpebble alleges that it entered into an agreement with the School District in September 2003,pursuant to which it agreed to serve as a construction manager with respect to the installation ofcertain portable classrooms. In this action commenced by the School District, Sandpebbleasserted counterclaims alleging that the School District breached these two agreements. TheSchool District moved, inter alia, to dismiss the counterclaims pursuant to CPLR 3211 (a) (5) astime-barred, and for failure to serve proper and timely notices of claim. In the order appealedfrom, the Supreme Court, inter alia, denied those branches of the motion. We affirm the orderinsofar as appealed from.
An action to recover damages for a breach of contract against a school district or schoolboard must be commenced within one year after the cause of action accrued (seeEducation Law § 3813 [2-b]; Zurich Am. Ins. Co. v Ramapo Cent. School Dist., 63 AD3d 729,731 [2009]). "A breach of contract cause of action accrues . . . at the time of thebreach" (Sears, Roebuck & Co. vPatchogue Assoc., LLC, 87 AD3d 629, 630 [2011]; see Ely-Cruikshank Co. v Bankof Montreal, 81 NY2d 399, 402 [1993]; [*2]HP Capital, LLC v Village of SleepyHollow, 68 AD3d 928, 929 [2009]). "To dismiss a cause of action pursuant to CPLR3211 (a) (5), on the ground that it is barred by the Statute of Limitations, [the party asserting thatthe cause of action is time-barred] bears the initial burden of establishing prima facie that thetime in which to sue has expired" (Hebrew Inst. for Deaf & Exceptional Children v Kahana, 57 AD3d734, 734 [2008] [internal quotation marks omitted]). If the movant meets this burden, thenonmoving party, in order to successfully oppose the motion, must raise a question of fact as towhether the statute of limitations was tolled or was otherwise inapplicable (see Williams v New York City Health &Hosps. Corp., 84 AD3d 1358, 1359 [2011]; Rakusin v Miano, 84 AD3d 1051 [2011]), or that the cause ofaction was actually interposed within the applicable limitations period (see Krichmar v Scher, 82 AD3d1164, 1165 [2011]). Moreover, pursuant to CPLR 203 (d), a "counterclaim is not barred if itwas not barred at the time the claims asserted in the complaint were interposed."
Here, the claims asserted in the complaint were interposed on January 3, 2007. The SchoolDistrict failed to establish, prima facie, that the counterclaims were time-barred as of that date.The School District failed to eliminate questions of fact as to whether it terminated the April2002 contract in 2005, as it contends, or in 2006, as Sandpebble contends (see Zurich Am.Ins. Co. v Ramapo Cent. School Dist., 63 AD3d at 731-732; Angelo Capobianco, Inc. v BrentwoodUnion Free School Dist., 53 AD3d 634, 635 [2008]). Further, questions of fact exist asto when Sandpebble's demand for payment under the alleged agreement to provide constructionmanagement services for installation of portable classrooms was either expressly rejected orshould have been viewed as having been constructively rejected (see Zurich Am. Ins. Co. vRamapo Cent. School Dist, 63 AD3d at 731-732; Angelo Capobianco, Inc. v BrentwoodUnion Free School Dist., 53 AD3d at 635). Thus, the Supreme Court properly denied thatbranch of the School District's motion which was pursuant to CPLR 3211 (a) (5) to dismissSandpebble's counterclaims as time-barred by the one-year limitations period set forth inEducation Law § 3813 (2-b).
Moreover, in light of the questions of fact that existed as to when Sandpebble's counterclaimsaccrued, the Supreme Court properly denied that branch of the School District's motion whichwas to dismiss Sandpebble's counterclaims for failure to timely serve proper notices of claim(see Education Law § 3813 [1]; Zurich Am. Ins. Co. v Ramapo Cent. SchoolDist, 63 AD3d at 731; Angelo Capobianco, Inc. v Brentwood Union Free SchoolDist., 53 AD3d at 635).
The School District's remaining contentions are without merit. Skelos, J.P., Hall, Lott andRoman, JJ., concur.