Defendant, the New York City School Construction Authority (hereinafter "SCA") moves inter alia to dismiss plaintiff's Complaint.

This is an action to recover damages for breach of contract. On January 15, 2008 defendant, the SCA awarded a contract to plaintiff, Kafka Construction, Inc. (hereinafter "Kafka") to perform construction work at Hillcrest High School, in the County of Queens, City and State of New York.

As an initial matter, plaintiff's claim that defendant's motion must be denied as untimely is without merit. Pursuant to a stipulation dated September 28, 2012, the SCA's time to respond to plaintiff's complaint was extended to November 19, 2012.

It is undisputed that defendant timely served and filed its motion to dismiss on November 16, 2012. On January 23, 2013, this motion was marked off the Centralized Motion Part calendar due to defendant's failure to submit a working copy of the motion papers. As a result, the instant, identical motion to dismiss was filed on January 24, 2013.

Contrary to plaintiff's contention, although the instant motion was served after the date that responsive pleadings were required to be served under the stipulation, the motion is still timely. Pursuant to CPLR § 3211[f], service of a timely motion to dismiss extends the time to serve a responsive pleading until ten days after notice of entry of the order on the motion. Defendant's new motion, filed the day after the previous motion was marked off, clearly falls within this time period.

The contract, which is the subject of the litigation, included provisions and allowances, which were included in the calculation of the contract price. However, the SCA could chose not to have some provisions performed. The SCA requested provisions not be performed pursuant to [*2]the contract and on February 4, 2011, Kafka submitted a Change Order Proposal estimating that the value of the work not performed under the contract at $192,608.18. On August 30, 2012 the SCA issued a Change Order in the amount of $611,090.00.

"To succeed on a motion to dismiss pursuant to CPLR 3211[a][1], the documentary evidence which forms the basis of the defense must resolve all factual issues as a matter of law and conclusively dispose of the plaintiff's claim" (Nisari v. Ramjohn, 85 AD3d 987, 988 [2d Dept. 2011]).

Defendant contends it is entitled to dismissal of the Verified Complaint because plaintiff failed to serve a notice of claim within three months after the claim accrued in compliance with Public Authorities Law Section ��1744[2]. It is well settled that a contractor's claim accrues when its damages are ascertainable and, generally, this occurs once the work has been substantially completed or a detailed invoice of the work performed is submitted (C.S.A. Contracting Corp. v. New York City School Construction Authority, 5 NY3d 189, 192 [2005]). Defendant herein has established that plaintiff's claim accrued on February 4, 2011, when plaintiff submitted its proposed change order.

Plaintiff's contention that its' claim did not accrue until it received an e-mail from defendant proposing a credit amount for the final change order or until defendant formally issued the change is without merit. A contractor's claims may be time-barred before there is even any reason to expect litigation (See C.S.A. Contracting Corp., 5 NY3d at 194 [Smith, J., concurring]). While this outcome lead the Legislature to amend an identical provision in the Education Law, ��3813[1], to provide that a claim does not accrue until payment is denied, the Legislature left Public Authorities Law ��1744[2] intact (See id. at 193,194-95). Accordingly, under the Public Authorities Law, the rule remains that accrual of a claim occurs when damages are ascertainable, not when a claim for payment is rejected (See id. at 193).

Plaintiff's contention that this case is distinguishable because it involves a dispute over credit for work not performed is ultimately a distinction without a difference. Plaintiff's proposed change order reflecting the amount of credit owed to defendant also reflects plaintiff's calculation of the value of work actually performed under the contract. As such, that is the point where there damages became ascertainable. Defendant's change order reflects defendant's calculation of the value of work performed under the contract and is, essentially, a rejection of payment in excess of that amount.

Accordingly, defendant's motion is granted, and plaintiff's complaint is dismissed as asserted against it. The parties' remaining contentions have been rendered moot and will not be addressed.

April 29, 2013 ____________________ [*3]

J.S.C.