Gill Constr. & Bldrs., Inc. v Bellmore Fire Dist.
Annotate this CaseDecided on June 19, 2006
Supreme Court, Nassau County
Gill Construction & Builders, Inc., Plaintiff,
against
Bellmore Fire District, Defendant.
10444-04
Counsel for Plaintiff
Gary Rosen Law Firm, P.C.
249-02 Jericho Turnpike
Floral Park, New York 11001
Counsel for Defendant
Greenfield, Pusateri & Ruhl, Esqs.
626 Reckson Plaza
Uniondale, New York 11556
Leonard B. Austin, J.
Defendant Bellmore Fire District ("Bellmore") moves to dismiss this action on the grounds that it is barred by the statute of Limitations, that Plaintiff failed to comply with Town Law §180 and that the Court lacks jurisdiction over it. Plaintiff Gill Construction & Builder, Inc. ("Gill") cross-moves for leave to serve a late Notice of Claim.
BACKGROUND
By agreement dated May 29, 2002, Bellmore retained Gill to perform work in connection with an addition to and renovations of Bellmore's facility located at 230 Pettit Avenue, Bellmore.
Gill asserts that it performed the contract work and extra work as directed and approved by Bellmore's architect. Gill alleges that the fair, reasonable and agreed upon value of the work, labor and services it performed was $689,489.91 of which it has been paid $467,330. This leaves a balance due of $222,159.91 which it seeks to recover in this action.This action was commenced on August 2, 2004 when the summons and complaint were filed with the County Clerk.
Issue was joined by service of an answer dated August 23, 2004. In its answer, Bellmore interposed three affirmative defenses. The first affirmative defense asserts the lack of jurisdiction over the Defendant. The second affirmative defense alleges the court lacks jurisdiction because service was not properly made. The third affirmative defense asserts Plaintiff's failure to file a written verified claim as required by Town Law §180. Bellmore has also asserted a counterclaim seeking to recover damages allegedly sustained as a result of Gill's failure to complete the work in accordance with the plans, conditions and specifications.
DISCUSSION
A. Lack of Jurisdiction
Bellmore's first and second affirmative defenses allege that the Court lacks personal jurisdiction over it.
The first affirmative defense alleges that the court lacks personal jurisdiction over Bellmore. Bellmore fails to state any facts supporting this affirmative defense.
Affirmative defenses plead as conclusions of law that are not supported by any facts are insufficient and should be stricken. Petracca v. Petracca, 305 AD2d 566 (2nd Dept. 2003); and Bentivegna v. Meenan Oil Co., 126 AD2d 506 (2nd Dept. 1987). Thus, the first affirmative defense cannot serve as a basis for dismissal and must be stricken.
The second affirmative defense asserts that the Court lacks jurisdiction because the summons and complaint were not properly served.
CPLR 311(a)(8) provides that service upon a fire district must be made by serving the clerk, a trustee or a member of the board. Neither party provided the Court with the affidavit of service of the summons and complaint. Thus, the Court cannot determine when and upon whom was made.
Nevertheless, defendant who raises lack of jurisdiction for failure to make proper service as an affirmative defense must move to dismiss the action on that ground within sixty (60) days of service of the pleading unless the court extends the time on the grounds of undue hardship. CPLR 3211(e). In this case, the answer was served on August 25, 2005. The motion to dismiss was not made until March 1, 2006 which is clearly more than sixty (60) days after the pleading containing the affirmative defense was served.
The "undue hardship" standard of CPLR 3211(e) requires the party seeking to dismiss [*2]for lack of jurisdiction due to improper service to establish that a motion to dismiss could not, with the exercise of due diligence, have been made during the sixty (60) day period. Abitol v. Schiff, 180 Misc 2d 949 (Sup.Ct. Queens Co. 1999).
Bellmore has not proffered any reason why it did not or could not have moved to dismiss within the sixty (60) day period. Thus, Bellmore's motion to dismiss this action for lack of jurisdiction based upon the failure to make proper service must be denied and the affirmative defense deemed waived. See, Dimond v. Verdon, 5 AD3d 718 (2nd Dept. 2004); Alaska Seaboard Parnters, L.P. v. Anninos, 259 AD2d 572 (2nd Dept. 1999); and Wade v. Byung Yang Kim, 250 AD2d 323 (2nd Dept. 1998).
B. Statute of Limitations and Notice of Claim
1. Town Law §180
Town Law §180 requires that an action against a fire district arising out of a contract must be commenced within eighteen (18) months after the cause of action accrued. Town Law §180 further requires that a party seeking to commence an action against a fire district serve a verified claim upon the district secretary within six (6) months after the claim accrues. This provision also prohibits a party from commencing an action against a fire district until forty (40) days after the claim has been duly filed with the district secretary.
The filing of a written verified claim with the district secretary within the statutorily prescribed period is a condition precedent to the commencement of an action against a fire district. Shade Tree Contracting, Inc. v. Hicksville Fire District, 272 AD2d 603 (2nd Dept. 2000). The court has no authority to disregard compliance with the written verified claim provisions of Town Law §180. Elmont Fire District v. Lapeka Construction Corp., 232 AD2d 636 (2nd Dept. 1996); and Pepco Construction Corp. v. East Meadow Fire Dept., 165 Misc 2d 95 (Civil Ct., Kings Co. 1995).
2. Accrual of Action
The real issue, which is not adequately addressed by either party, is when the causes of action alleged in the complaint accrued. The date by which the written, verified claim was required to be served and the action commenced is dependent upon the date when the action accrued. Town Law § 180.
The complaint alleges three causes of action (first cause of action), breach of contract, work, labor and services (quantum meruit) (second cause of action) and account stated (third cause of action).
a. First Cause of Action - Breach of Contract
A cause of action for breach of contract accrues when the breach occurs or when a party to the agreement fails to perform an obligation. Ely-Cruikshank Co., Inc. v. Bank of Montreal, 81 NY2d 399 (1993).
The relationship between Gill and Bellmore is governed by the terms of a written contract. The contract is an AIA Document A101-1997 consisting of two sections; the Standard Form of Agreement between Owner and Contractor where the basis of payment is a Stipulated Sum ("Contract"); and General Provisions. Both the Contract and the General Provisions contain provisions relating to payment.
The Contract permits Gill to seek monthly progress payments. Prior to the date upon which the first monthly progress payment was requisitioned, Gill was to provide the architect with a schedule of values allocated to various portions of the work. In order to obtain monthly progress payments, Gill was to submit to the architect not later than the second Wednesday of [*3]the month a detailed and itemized statement indicating the work performed for which payment was sought with an Application for Payment ("Application"). The architect was then given seven days to review the Application. Upon review of the Application, the architect could either issue a Certificate of Payment ("Certificate") approving payment or issue a statement indicating the architect's reason why payment should be withheld in whole or in part.
Once the architect issued a Certificate, the owner was required to make payment of the approved amount by the first Wednesday of the following month.
Final payment constituting the entire unpaid balance would be due when the contractor completed the work and the architect has issued a final Certificate. The owner was required to make the final payment no later than thirty (30) days after the architect issued the final Certificate.
If the architect did not issue a Certificate within seven (7) days of receipt of an Application or if the owner failed to make payment for work certified by the architect within seven (7) days of the due date of such payment, the contractor could, upon seven (7) days written notice to the architect and owner, stop work until the amount due was paid. If the contractor stopped work for this reason, the time to complete the work was extended for the period of the work stoppage. The contractor was entitled to receive reasonable costs incurred for the shut down, delay and start-up as well as interest as provided by the Contract.
In order to obtain summary judgment, the party seeking such relief must establish a prima facie entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); and Zuckerman v. City of New York 49 NY2d 557 (1980). If the party seeking summary judgment fails to make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied. Winegrad v. New York University Med. Ctr., 64 NY2d 851 (1985); Widmaier v. Master Products, Mfg., 9 AD3d 362 (2nd Dept., 2004); and Ron v. New York City Housing Auth., 262 AD2d 76 (1st Dept., 1999).
Bellmore has failed to establish a prima facie entitlement to judgment on Gill's breach of contract claim. Gill's claim for breach of contract accrued when Bellmore failed to make timely payment for work for which the architect had issued his Certificate. Nothing in the record before the Court establishes when the architect issued a Certificate or when Bellmore failed and refused to make payment for work for which a Certificate had been issued. Since the Court cannot determined when the cause of action accrued and since the time in which Gill was required to file a verified, written claim and commence the action is measured from the date the action accrued, the Court cannot determine whether the breach of contract claim is barred by Gill's failure to file a written, verified claim within six (6) months after the action accrued and commence an action with eighteen (18) months of the accrual of the cause of action.
b. Second Cause of Action - Quantum Meruit
The second cause of action which seeks recovery on the theory of quantum meruit must be dismissed. The complaint alleges the work in question was performed between May 29, 2002 and April 14, 2004.
An action for quantum meruit accrues when the work is completed and accepted. Elliot v. Gian, 19 AD2d 196 (4th Dept. 1963).
Since the work for which Gill seeks recovery was completed no later than April 14, 2004, Gill was required to file a verified written claim no more than six (6) months after the work was completed.
Failure to plead and prove compliance with the provision of the Town Law relating to the [*4]filing of a written, verified claim mandates dismissal. County of Rockland v. Town of Orangetown, 189 AD2d 1058 (3rd Dept. 1993). Unlike the provisions of General Municipal Law § 50-e(5), the Town Law does not grant the Court authority to extend the time for filing a written, verified claim against Bellmore for a claim arising in contract. Aqua Dredge, Inc. v. Little Harbor Sound Civic Improvement Assoc., Inc., 114 AD2d 825, (2nd Dept. 1985); and Franza's Universal Scrap Metal, Inc. v. Town of Islip, 89 AD2d 843, (89 AD2d 843 (2nd Dept. 1982).
Gill's reliance upon Prote Contracting Co., Inc. v. Board of Education of the City of New York, 198 AD2d 418 (2nd Dept. 1993) for the proposition that the Court may grant Gill leave to serve a late notice of claim is misplaced. Prote was a proceeding under Educations Law § 3813 which permits the court leave to extend the time for filing a notice of claim. Town Law §180 does not grant the court such discretion.
Gill did not plead or prove compliance with the notice of claim provisions of Town Law §180. Thus, the second cause of action must be dismissed.
c. Third Cause of Action - Account Stated
A cause of action on a claim of account stated accrues on the date of the last transaction in the account. 75 NY Jur2d Limitations and Laches § 90.
Gill alleges that they sent a statement of account to Bellmore on April 14, 2004. Under the terms of the contract, providing Bellmore with a statement of account would not entitle Gill to payment. Gill was entitled to payment only after work for which it had requisitioned payment was approved by the architect.
Even if the filing of a statement of account entitled Gill to payment, the third cause of action would have to be dismissed because of Gill's failure to plead and prove compliance with Town Law §180. See, County of Rockland v. Town of Orangetown, supra.
Since, more than six months have elapsed since the cause of action accrued,
and Gill has failed to file a written, verified claim with Bellmore, the third cause of action must also be dismissed.
Accordingly, it is,
ORDERED, that Defendant's motion for summary judgment is granted to the extent of dismissing the second and third causes of action and is otherwise denied; and it is further,
ORDERED, that the first and second affirmative defenses plead in Defendant's answer are stricken; and it is further
ORDERED, that Plaintiff's motion for leave to serve a late Notice of Claim is denied without prejudice consistent herewith; and it is further,
ORDERED, that counsel for the parties are directed to appear for a status conference on July 6, 2006 at 9:30 a.m.
This constitutes the decision and Order of the Court.
Dated: Mineola, NY _____________________________
June 19, 2006 Hon. LEONARD B. AUSTIN, J.S.C.
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