Rason Asphalt, Inc. v. Town of Oyster Bay
| Decision Date | 20 September 1957 |
| Citation | 8 Misc.2d 411,167 N.Y.S.2d 175 |
| Parties | RASON ASPHALT, Inc., Plaintiff, v. TOWN OF OYSTER BAY, Defendant. |
| Court | New York Supreme Court |
Robert M. Blakeman, Valley Stream, for plaintiff.
Michael J. Sullivan, Oyster Bay, for defendant.
The defendant moves pursuant to rule 113 of the Rules of Civil Practice, for an order dismissing the complaint and awarding the defendant summary judgment.
The plaintiff alleges that certain asphalt was sold and delivered by the plaintiff to the defendant between April 19, 1955 and February 27, 1956. The total amount demanded by the plaintiff is $11,909.50 for 54 separate sales, each of which was less than $1,000.
The defendant contends that the action cannot be sustained because (1) the sales were subject to the requirement of sec. 103 of the General Municipal Law and there was no public bidding; (2) the plaintiff did not comply with section 65(3) of the Town Law which requires a written verified claim filed with the Town Clerk within six months after the cause of action accrued; and (3) the sales were not made to an agent or servant of the defendant Town.
As to the first contention, the plaintiff says that each purchase was below $1,000, and not subject to section 103 of the General Municipal Law; and anyway, each of the 54 separate purchases was made in an emergency and thus within the exception of section 103. The various documents and affidavits submitted on this motion establish a triable issue in this respect. This is particularly true in respect to the emergency situations alleged and denied in affidavits submitted by the litigants.
The third issue raised by the defendant is also a triable one which requires the hearing of evidence and the examination of documents at a trial.
The second contention made by the defendant: that the plaintiff did not comply with section 65(3) of the Town Law in that the plaintiff failed to filed a written verified claim with the Town Clerk within six months after the cause of action accrued, needs fuller analysis. The last asphalt delivery, whether it was pursuant to one or fifty-four contracts, was on February 27, 1956. The plaintiff filed its notice of claim with the Town Clerk on October 29, 1956.
The statute involved, section 65(3) of the Town Law, reads as follows:
(Emphasis supplied.)
It is clear, therefore, that before the Town could be sued, three requirements were to be fulfilled: (1) that the action be started within eighteen months after the cause of action acrued; (2) that a written verified claim be filed with the Town Clerk within six months after the cause of action accrued; and (3) that no action be brought until forty days after the filing of the verified claim. The first and third requirements clearly were fulfilled. The second requirement is the subject of further discussion.
In this respect the plaintiff alleges that various statutes involved required the plaintiff to file verified claim forms approved by the Town with delivery receipts signed by a town employee, with the Town Superintendent of Highways, who, if he approved, would then file the verified claims with the Town Comptroller for audit before payment was made. In this respect, the plaintiff cites section 284 of the Highway Law and sections 34, 103 and 120 of the Town Law.
The plaintiff also submits affidavits to show (1) that it has complied with the above stated requirements, but that the Town Comptroller has failed and refused to audit plaintiff's claims; that audit means to examine and either allow or reject the claims, Glendon v. City of New York, 250 App.Div. 556, 294 N.Y.S. 890; (2) that diligent inquiry was made to the Town to ascertain the status of the claims; (3) that the plaintiff demanded in writing that if the claims were not paid before October 1, 1956, suit would be commenced; and (4) that when the defendant still failed and refused to audit the claims, the causes of action on the contracts accrued on October 1, 1956.
The 'jugular vein' of this problem is: When did the cause or causes of action accrue--when the goods were delivered or on October 1,...
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