Opinion
2001-02492
Submitted December 12, 2001.
January 22, 2002.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated February 1, 2001, which denied its motion to dismiss the first, second, and third counterclaims in the amended answer, and granted the defendant's cross motion to serve a second amended answer.
Terrence J. O'Connor, Long Island City, N.Y., for appellant.
Zetlin DeChiara, New York, N.Y. (Christopher P. McCabe of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, THOMAS A. ADAMS, A. GAIL PRUDENTI, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the first, second, and third counterclaims in the amended answer are dismissed, and the cross motion is denied.
The Supreme Court erred in denying the plaintiff's motion to dismiss the first, second, and third counterclaims in the defendant's amended answer. "While the date upon which a contractor's damages become ascertainable necessarily depends upon the particular facts of each case, it generally has been recognized that damages are ascertainable once the work is substantially completed or a detailed invoice of the work performed is submitted" (G.A. Contrs. v. Board of Educ. of City of New York, 176 A.D.2d 856, 857; see, Matter of Board of Educ. [Wagner Constr. Corp.], 37 N.Y.2d 283; Suburban Restoration Co. v. Wappingers Cent. School Dist., 256 A.D.2d 572). The defendant's damages became ascertainable once the work at issue was completed, and the defendant failed to file a notice of claim within three months of that date as required by statute (see, Public Authorities Law § 1744). Therefore, the plaintiff's motion should have been granted, and the defendant's cross motion to serve a second amended answer should have been denied (see, Popular Constr. v. New York City School Constr. Auth., 268 A.D.2d 467).
SMITH, J.P., KRAUSMAN, LUCIANO, ADAMS and PRUDENTI, JJ., concur.