Public Improvements, Inc. v. Board of Educ. of City of New York

• Decision Date: 08 June 1982
• Citation: 56 N.Y.2d 850,438 N.E.2d 876,453 N.Y.S.2d 170
• Parties: , 438 N.E.2d 876, 5 Ed. Law Rep. 1231 PUBLIC IMPROVEMENTS, INC., Appellant, v. BOARD OF EDUCATION OF the CITY OF NEW YORK (P.S. 72, Bronx), Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 170

453 N.Y.S.2d 170

56 N.Y.2d 850, 438 N.E.2d 876, 5 Ed.

Law Rep. 1231

PUBLIC IMPROVEMENTS, INC., Appellant, v. BOARD OF EDUCATION OF the CITY OF NEW YORK (P.S. 72, Bronx),

Respondent.

Court of Appeals of New York.

June 8, 1982.

Alan Levy and Franklin E. Tretter, New York City, for appellant.

Frederick A. O. Schwarz, Jr., Corporation Counsel, New York City (John F. Grubin and John P. McCahey, Asst. Corp. Counsels, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (81 A.D.2d 537, 438 N.Y.S.2d 305). We but add that estoppel is unavailable against a public agency (see Matter of Hamptons Hosp. & Med. Center v. Moore, 52 N.Y.2d 88, 436 N.Y.S.2d 239, 417 N.E.2d 533; see, also, Matter of Bloomberg-Dubin v. Board of Educ., 82 A.D.2d 854, 439 N.Y.S.2d 956, affd. 56 N.Y.2d 555, 449 N.Y.S.2d 967, 434 N.E.2d 1345). And, as we have recently had occasion to reiterate, in the absence of an affirmative agreement to the contrary, of which there is no indication here, compliance with the provisions of section 3813 of the Education Law is a "condition precedent" to the commencement of an action against any school district or board of education (cf. Matter of Geneseo Cent. School 53 N.Y.2d 306, 311, 441 N.Y.S.2d 229, 423 N.E.2d 1058, citing Matter of Board of Educ. 37 N.Y.2d 283, 288, 372 N.Y.S.2d 45, 333 N.E.2d 353).

COOKE, C. J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

Order affirmed, with costs, in a memorandum.