SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

312 

CA 12-01082 

PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

PUTRELO CONSTRUCTION COMPANY, 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

TOWN OF MARCY, DEFENDANT-RESPONDENT.

-------------------------------------

TOWN OF MARCY, THIRD-PARTY PLAINTIFF,

V

 

BONACCI ARCHITECTS, PLLC, SUCCESSOR 

IN INTEREST TO FULIGNI-FRAGOLA 

ARCHITECTS, PLLC, THIRD-PARTY 

DEFENDANT-RESPONDENT. 

 

SHEATS & BAILEY, PLLC, BREWERTON (JASON BAILEY OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

FELT EVANS, LLP, CLINTON (ANTHONY G. HALLAK OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

SUGARMAN LAW FIRM, LLP, SYRACUSE (JAMES G. STEVENS, JR., OF COUNSEL),

FOR THIRD-PARTY DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Oneida County (Norman

I. Siegel, A.J.), entered March 21, 2012. The order granted the

motion of third-party defendant for partial summary judgment

dissmissing the second cause of action of plaintiff’s complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for

breach of contract in connection with its construction of a new town

hall for defendant-third-party plaintiff (hereafter, defendant). 

Third-party defendant, the successor in interest to the architect who

contracted with defendant, moved for partial summary judgment

dismissing plaintiff’s second cause of action, which sought delay

damages. Defendant joined in that motion. Supreme Court properly

granted the motion based on plaintiff’s failure to file a notice of

claim within the time limitations of Town Law § 65 (3). That statute

requires a written verified claim to be filed “within six months after

the cause of action shall have accrued” (id.). Plaintiff, relying on
-2- 312 

CA 12-01082 

Micro-Link, LLC v Town of Amherst (73 AD3d 1426, 1427), contends that

the second cause of action did not accrue until the claim for payment

of delay damages was actually or constructively rejected by defendant. 

Plaintiff’s reliance on Micro-Link, LLC is misplaced inasmuch as the

contract between plaintiff and defendant in this case provided for a

different date of accrual. It is well settled that parties may

provide in their contract for a different date of accrual, “and such a

provision will govern in the absence of duress, fraud or

misrepresentation” (Matter of Oriskany Cent. Sch. Dist. [Booth

Architects], 206 AD2d 896, 897, affd 85 NY2d 995; see CPLR 201). 

Here, the contract provided that “[a]s to acts or failures to act

occurring prior to the relevant date of Substantial Completion, . . .

any alleged cause of action shall be deemed to have accrued in any and

all events not later than such date of Substantial Completion.” Thus,

pursuant to the contract, the second cause of action accrued on the

date of substantial completion, which was May 23, 2005. Inasmuch as

the notice of claim was not filed within six months of that date, it

was untimely, and the court therefore properly granted the motion for

partial summary judgment dismissing the second cause of action (see

Mohl v Town of Riverhead, 62 AD3d 969, 970).

Plaintiff contends that the contract provision setting the

accrual date does not apply because plaintiff’s claims could not be

ascertained until the date of final completion. That contention is

without merit because, pursuant to that contract provision, the

relevant inquiry is whether plaintiff’s claim is based on “acts or

failures to act” prior to the relevant date of substantial completion,

not whether plaintiff could determine on that date the total amount of

damages it sustained. The record establishes that the contract

accrual date applies because plaintiff’s claim for delay damages under

the second cause of the action is based on “acts or failures to act

occurring prior to the relevant date of Substantial Completion.” We

reject plaintiff’s further contention that the certificate of

substantial completion issued by third-party defendant is insufficient

under the contract because it was executed by third-party defendant

only, and not by plaintiff or defendant. The contract provides that

the architect is to prepare the certificate of substantial completion

and submit it to the owner and contractor “for their written

acceptance of responsibilities assigned to them in such Certificate.” 

The contract, however, does not require the owner and contractor to

agree with the date of substantial completion set by the architect. 

Moreover, plaintiff’s own documents establish that the date of

substantial completion was no later than May 23, 2005.

Finally, we reject plaintiff’s remaining contentions that

defendant waived compliance with or is estopped from relying on Town

Law § 65 (3) (see Mohl, 62 AD3d at 970). “A municipality may be

estopped from asserting that a claim was filed untimely when its

improper conduct induces reliance by a party who changes his position

to his detriment or prejudice” (Wilson v City of Buffalo, 298 AD2d

994, 995, lv denied 99 NY2d 505 [internal quotation marks omitted]). 

Here, there is no evidence that defendant engaged in any improper

conduct dissuading plaintiff from serving a timely notice of claim 
-3- 312 

CA 12-01082 

(see generally id.).

Entered: April 26, 2013 Frances E. Cafarell

Clerk of the Court