Opinion
December 24, 1984
Appeal from the Supreme Court, Queens County (Hyman, J.).
Order affirmed, with costs.
Plaintiff's failure to present a notice of claim to defendant within three months after the accrual of its claims, as required by the clear language of subdivision 1 of section 3813 Educ. of the Education Law, is a fatal defect mandating dismissal of the action ( Parochial Bus Systems v. Board of Educ., 60 N.Y.2d 539). Plaintiff's claims accrued when the applications for payment were sent by plaintiff to defendant, because at those times the damages sought were ascertainable ( Amsterdam Wrecking Salvage Co. v. Greater Amsterdam School Dist., 83 A.D.2d 654, affd 56 N.Y.2d 828; Matter of Board of Educ. [ Wager Constr. Corp.], 37 N.Y.2d 283).
Furthermore, the standard form of agreement between the parties does not affirmatively waive compliance with section 3813 Educ. of the Education Law, nor are the provisions of the agreement plainly inconsistent with the statute (see Matter of Board of Educ. [ Wager Constr. Corp.], supra; Matter of Geneseo Cent. School [ Perfetto Whalen Constr. Corp.], 53 N.Y.2d 306; Public Improvements v. Board of Educ., 81 A.D.2d 537, affd 56 N.Y.2d 850). Titone, J.P., Mangano, Brown and Rubin, JJ., concur.