N. Picco & Sons Contracting Co., Inc. v Board of Education of Bronxville School

N. Picco & Sons Contr. Co., Inc. v Board of Educ. of Bronxville School 2006 NY Slip Op 01006 [26 AD3d 317] February 7, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 19, 2006

N. Picco & Sons Contracting Co., Inc., Respondent,
v
Board of Education of Bronxville School, Appellant.

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In an action to recover damages for breach of a construction contract, the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered May 25, 2005, which, inter alia, denied its motion to dismiss the complaint for failure to serve a verified notice of claim.

Ordered that the order is affirmed, with costs.

Contrary to the defendant's contention, the Supreme Court properly determined that the plaintiff was excused from complying with the statutory notice of claim requirement in Education Law § 3813. The detailed grievance procedures of the parties' contract were "plainly inconsistent with those contained in [Education Law § 3813], thus indicating the parties' apparent intention to waive the normal applicability of section 3813 to proceedings such as this" (Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.], 45 AD2d 85, 86 [1974]; see Civil Serv. Empls. Assn. v Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak, 230 AD2d 703 [1996]; cf. Davis-Wallbridge, Inc. v City of Syracuse, 71 NY2d 842, 843 [1988]).

The defendant's remaining contentions are either without merit (see e.g. D.J.H. Mech. Assoc., Ltd. v Mahopac Cent. School Dist., 21 AD3d 521, 522 [2005]) or need not be reached in light of our determination. H. Miller, J.P., Crane, Skelos and Dillon, JJ., concur.