Lanmark Group, Inc. v. New York City Sch. Constr. Auth.

Lanmark Group, Inc. v New York City Sch. Constr. Auth. (2018 NY Slip Op 08752) Lanmark Group, Inc. v New York City Sch. Constr. Auth. 2018 NY Slip Op 08752 Decided on December 20, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 20, 2018 Richter, J.P., Manzanet-Daniels, Tom, Gesmer, Kern, JJ. 7912 653952/15 [*1]Lanmark Group, Inc., Plaintiff-Respondent, v New York City School Construction Authority, Defendant-Appellant. Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for appellant. Milber Makris Plousadis & Seiden, LLP, Woodbury (Joseph J. Cooke of counsel), for respondent. Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered June 8, 2017, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss plaintiff's first cause of action, unanimously affirmed, without costs. Contrary to defendant's contention, the record establishes that plaintiff's notice of claim was timely served, because it was filed before defendant executed the certificate of completion (see D & L Assoc., Inc. v New York City School Constr. Auth., 69 AD3d 435, 435 [1st Dept 2010]). Plaintiff's December 1, 2014 change order proposal did not trigger the running of the three-month time period to timely file a notice of claim, as required by the version of Public Authorities Law § 1744(2) in effect at the time the parties executed the subject construction contract, because it was not a request for final payment for the work it had performed (see Popular Constr. v New York City School Constr. Auth., 268 AD2d 467 [2d Dept 2000]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: DECEMBER 20, 2018 CLERK