| N.Y. App. Div. | Dec 30, 1963
In an action by Michael Harmonay Corporation, a contractor, to foreclose a mechanic’s lien against another contractor, Riverso Construction Co., Inc., and against the Board of Education of the City of White Plains, as owner, in which Riverso’s answer pleaded a counterclaim for damages against the plaintiff Harmonay, and in which Harmonay’s reply thereto pleaded “an additional claim” (or counterclaim) for damages against both defendants, the defendant Riverso appeals from an order of the Supreme Court, Westchester County, dated July 19, 1962, which: (1) granted its motion to dismiss the counterclaim pleaded in Harmonay’s reply, but directed that its allegations be deemed included in the complaint, with leave to Riverso to answer the complaint as so amended; (2) denied Riverso’s motion to amend its answer to plead cross complaints for money damages against the defendant board; and (3) denied Riverso’s motion to renew and reargue. Order modified: (1) by striking out its first decretal paragraph denying Riverso’s motion to serve an amended answer asserting cross complaints for money damages against the defendant board; (2) by substituting therefor a provision that such motion by Riverso be granted upon condition that said cross complaints contain the allegations required by section 3813 of the Education Law; and (3) by adding a provision permitting the board, if so advised, to serve an answer setting forth as a defense Riverso’s failure to comply with the requirements of said section. As so modified, the order is affirmed, without costs. Riverso may serve its amended answer within 20 days after entry of the order hereon; and the board may serve its answer within 20 days after service upon it of Riverso’s amended answer. Riverso was denied leave to plead its proposed cross-complaints upon the ground: (a) that the claims asserted therein accrued when it had completed its work pursuant to the contract which is the subject of this action, and (b) that it had failed to file a notice of claim within three months thereafter, as required by statute (Education Law, § 3813). The statute provides that before any action may be instituted against an entity, such as the board here, a notice of claim must be filed within three months after accrual of the claim. Riverso’s work was completed by February 4, 1957. The notice of claim by Riverso was not filed until November 15, 1957 (more than three months later). We are of the opinion, however, that upon this record it may not be determined as a matter of law that “ accrual of the claim ” occurred upon the initial physical completion of the work. The contract provides that the board was to be under no obligation to make payment until after its acceptance of the work; and the record indicates that such acceptance took place on August 19,1957, less than three months before the filing of the notice of claim. Under such circumstances, it is our opinion that Riverso should have leave to plead its cross complaints, without prejudice to the right of the board to plead, as a defense, Riverso’s noncompliance with the notiee-of-claim statute (Education Law, § 3813). We find that the delay in applying for leave to plead the cross complaints has not unduly prejudiced the board and should not bar the granting of such leave. The proposed amended answer of Riverso, as presented in the record, does not contain sufficient allegations of the matter required by the statute (Education Law, § 3813), i.e., there is no allegation that “ a written verified claim upon which [the] action * * * is founded was presented to the governing body of [the] district within three months after the accrual” of the claim. This statutory requirement is not met by the allegations, in the proposed pleading, of the due filing of claims for damages. Beldock, P. J., Ughetta, Kleinfeld, Rabin and Hopkins, JJ., concur.