First Bible Baptist Church, Inc. v. Gates-Chili Cent. School Dist.
| Decision Date | 26 April 1991 |
| Docket Number | No. 3,GATES-CHILI,3 |
| Parties | , 67 Ed. Law Rep. 716 FIRST BIBLE BAPTIST CHURCH, INC., Plaintiff, v.CENTRAL SCHOOL DISTRICT, Appellant, and Passero-Scardetta Associates, Passero Associates, Architects, Engineers, Surveyors and Landscape Architects, P.C., and Gary W. Passero, P.E., Kenneth W. Passero, P.E., George A. Scardetta, P.E., Alfred I. La Rue, P.L.S., and William Pethick, A.I.A., Respondents. Appeal |
| Court | New York Supreme Court — Appellate Division |
Harter, Secrest & Emery by Brian
McAvoy, Rochester, for appellant.
Passero & Meserve by James Meserve, Rochester, for all respondents, except Alfred I. La Rue.
Fix, Spindleman, Turk, Himelein & Shukoff, Rochester, for respondent, Alfred I. La Rue.
Before CALLAHAN, J.P., and DOERR, GREEN, BALIO and LOWERY, JJ.
Supreme Court properly granted the School District's motion for summary judgment dismissing the complaint. Plaintiff seeks to recover damages from defendant Gates-Chili Central School District on separately stated causes of action for fraud, breach of contract, indemnity and restitution. The complaint, however, in reality alleges only one cause of action for a misrepresentation by School District employees that the building plaintiff contracted to buy from the School District did not contain asbestos. Whether viewed as a cause of action for fraud, for negligent misrepresentation or, as suggested by the School District, for injury to property caused by the latent effects of exposure to asbestos, the cause of action accrued in March of 1985 when plaintiff discovered the presence of asbestos in the building (see, CPLR 213 [8]; 214-c [3]. Any action against a school district must be commenced within one year of its accrual, and commencement of this action three years after accrual was untimely (see, Education Law § 3813 [2-b].
Moreover, plaintiff failed to file a notice of claim prior to commencement of the action, as required by Education Law § 3813(1). There is no merit to plaintiff's contention that its action seeks to vindicate a public interest, and the failure to satisfy the statutory condition precedent mandates dismissal of the action (see, Parochial Bus Systems v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241). The court did not abuse its discretion in denying plaintiff's motion for permission to file a late notice of claim. The application for leave to file a late notice of claim was made more than three years after accrual of the action and was, therefore, untimely (see, Education Law § 3813 [2-a]; Philson Painting Co. v. Board of Educ. of City of N.Y., 133 A.D.2d 619, 519 N.Y.S.2d 727).
Supreme Court also properly denied the School District's motion for summary judgment dismissing the cross claims for contribution asserted by...
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