New York Racing Ass'n v. New York City Off-Track Betting Corp.

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered February 14, 2007, dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 26, 2007, which denied plaintiffs motion for summary judgment and granted defendant’s cross motion to dismiss the complaint for failure to timely serve a notice of claim, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Plaintiffs failure to serve a notice of claim within 90 days after defendant’s alleged breach of the parties’ memorandum of understanding is a bar to the instant action (see Racing, PariMutuel Wagering and Breeding Law § 618; Zoll v New York City Off-Track Betting Corp., 258 AD2d 267 [1999], lv denied 94 NY2d 754 [1999]; see also Zoll v Suffolk Regional Off-Track Betting Corp., 259 AD2d 696 [1999]). Plaintiffs claim accrued when its damages were ascertainable (see C.S.A. Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189, 192-193 [2005]; Alfred Santini & Co. v City of New York, 266 AD2d 119 [1999], lv denied 95 NY2d 752 [2000]), i.e., after it received the first of defendant’s monthly payments that did not include the increase allegedly due under the renewal provision of the memorandum of understanding. Plaintiff did not file its notice of claim until more than 10 months after it received the payment. Plaintiffs estoppel argument has no support in the record. We have considered plaintiffs remaining arguments and find them unavailing. Concur—Tom, J.E, Andrias, Nardelli and Williams, JJ. [See 14 Misc 3d 1221(A), 2007 NY Slip Op 50110(U).]