Crescent Electrical Installation Corp. v. Board of Education

In an action to recover damages for breach of contract, defendant appeals from an order of the Supreme Court, Kings County, dated June 20, 1978, which denied its motion for summary judgment. Order reversed, on the law, and motion granted, with $50 costs and disbursements. Defendant contends that the complaint should be dismissed on the • ground that plaintiff did not timely file its notice of claim (see Education Law, § 3813, subd 1). We agree. We note at the outset that subdivision 1 of section 3813 of the Education Law applies to claims made against defendant (see H & J Floor Covering v Board of Educ., 66 AD2d 588). The three-month period to file a notice of claim as set forth in section 3813 runs from the accrual of the claim which, under the circumstances here, was when the claimant’s damages were ascertainable. The record shows that plaintiff’s damages, allegedly resulting from defendant’s delay, were ascertainable on September 12, 1972, when plaintiff substantially completed its performance of the contract (cf. Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283). Accordingly, plaintiff’s notice of claim filed on June 13, 1973 was not timely filed. Titone, J. P., Cohalan, Martuscello and Gibbons, JJ., concur.