Wm. H. Clark Municipal Equipment, Inc. v. Town of La Grange

Feb 14, 1991
Versions:170 A.D.2d 831
565 N.Y.S.2d 920
1991 N.Y. App. Div. LEXIS 1493
Weiss, J.

Cross appeals (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Beisner, J.), entered December 21, 1989 in Dutchess County, which, inter alia, granted defendant’s motion to dismiss the complaint for failure to file a notice of claim, without prejudice.

On March 1, 1988, plaintiff submitted three different written proposals to sell defendant a street-sweeping machine. On March 15, 1988, defendant’s Superintendent of Highways wrote plaintiff advising that defendant’s Town Board had awarded it the bid for the sum of $31,780. The machine was delivered on April 12, 1988 and registered in defendant’s name on April 14, 1988. Despite plaintiff’s oral and written demands, payment has not been made. Defendant contends that it orally notified plaintiff that the machine was defective, that payment would not be made and that plaintiff should *832take it back. The complaint alleges causes of action for goods sold and delivered, an account stated and breach of contract. Supreme Court granted defendant’s motion to dismiss the complaint for plaintiffs failure to comply with Town Law § 65 (3), but did so without prejudice. The court also denied plaintiffs cross motion for an order directing defendant to accept its verified claim. These cross appeals ensued.

Plaintiff contends that Town Law § 65 (3) is not a bar to the first cause of action seeking recovery for goods sold and delivered. That statute provides that "no action shall be maintained against a town upon or arising out of a contract entered into by the town unless * * * commenced within eighteen months after the cause of action thereof shall have accrued, nor unless a written verified claim shall have been filed with the town clerk within six months after the cause of action shall have accrued” (emphasis supplied). Plaintiff contends that the first cause of action is "quasi-contractual in nature” and grounded upon an "obligation imposed by law”. We find this argument disingenuous since each of plaintiffs proposals to sell contained the following language: "This Proposal when accepted by the purchaser shall constitute a contract” (emphasis supplied). Plaintiffs attempts to construe the undisputed facts as a cause of action other than one arising out of a contract are without merit. Courts have no authority to disregard lack of compliance with Town Law § 65 (3) (see, Aqua Dredge v Little Harbor Sound Civic Improvement Assn., 114 AD2d 825, 826). We find little merit to the second cause of action for an account stated since defendant consistently rejected demands for payment (see, Marino v Watkins, 112 AD2d 511; 1 NY Jur 2d, Accounts and Accountings, § 10, at 163).

As the entirety of the dispute in the first three causes of action arises out of the contract, Supreme Court correctly held that Town Law § 65 (3) mandates dismissal. We further find that Town Law § 65 (3) equally applies to plaintiffs proposed amended complaint and warrants denial of plaintiffs cross motion to amend. Plaintiff seeks merely to restate the claim, the gravamen of which remains breach of contract.

Defendant cross-appealed from that portion of the order which held the dismissal to be without prejudice. Supreme Court found that the voucher and audit provisions of Town Law §§ 118 and 119 were, in effect, a condition precedent to the accrual of the time period under Town Law § 65 (3). We disagree. Plaintiffs cause of action accrued when the instant dispute arose with the unambiguous refusal to pay. Accord*833ingly, the cross appeal seeking dismissal with prejudice is granted.

Order modified, on the law, without costs, by deleting therefrom the phrase "without prejudice” upon granting defendant’s motion, and, as so modified, affirmed. Mahoney, P. J., Casey, Weiss, Yesawich, Jr., and Levine, JJ., concur.