                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   522616
________________________________

LISA KYER, Individually and
   Doing Business as SCHOOL
   BUSINESS SERVICES,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

RAVENA-COEYMANS-SELKIRK
   CENTRAL SCHOOL DISTRICT,
                    Respondent.
________________________________


Calendar Date:   September 12, 2016

Before:   Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

                             __________


      Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham (James B.
Thomas of counsel), for appellant.

      Girvin & Ferlazzo, PC, Albany (Christopher P. Langlois of
counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from an order of the Supreme Court (O'Connor, J.),
entered May 4, 2015 in Albany County, which, among other things,
granted defendant's motion to dismiss the complaint.

      On February 21, 2013, the parties entered into a contract
in which they agreed that plaintiff would research and review
defendant's financial and student records to determine whether
defendant could seek additional special education aid for the
2012-2013 and 2013-2014 school years. In exchange for this
service, plaintiff was to receive a 15% contingent fee "of the
increased revenue resulting from [her] recommendations and
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actions." This contract was approved by defendant's Board of
Education.

      In a letter dated June 27, 2013, defendant informed
plaintiff that it was "terminating the contract . . . effective
June 30, 2013" because it determined that the information
provided by plaintiff "was inaccurate and excessively overstated
the true costs involved" and, as a result, it would not pay
plaintiff for her services. The next day, plaintiff submitted an
invoice seeking payment in the amount of $29,635.04 for her
services. In response, defendant's Superintendent, Alan
McCartney, wrote plaintiff a letter explaining that he was
declining to authorize payment because the work had been
performed by his staff and others. Plaintiff responded by letter
dated July 17, 2013, in which she asserted that for services
rendered in connection with the 2012-2013 school year, the "total
amount due" was $65,677.05.

      On August 27, 2014, plaintiff commenced the instant action
asserting breach of contract and account stated causes of action,
as well as two causes of action sounding in tort, stemming from
defendant's nonpayment. Defendant then moved to dismiss
plaintiff's complaint pursuant to CPLR 3211 (a) (1), (5) and (7).
Plaintiff opposed defendant's motion and cross-moved for summary
judgment (see CPLR 3211 [c]; 3212) or, in the alternative, leave
to amend her complaint and/or serve a late notice of claim
pursuant to Education Law § 3813. Supreme Court granted
defendant's motion to dismiss, finding that plaintiff's causes of
action sounding in tort failed to state a cause of action and her
breach of contract and account stated causes of action were time-
barred pursuant to Education Law § 3813. The court then denied
plaintiff's cross motion as moot. Plaintiff appeals, and we
affirm.

      Turning first to plaintiff's causes of action sounding in
tort, Supreme Court properly dismissed plaintiff's first and
second causes of action sounding in tort, as "there is no cause
of action for negligent performance of a contract" (Johnson City
Cent. School Dist. v Fidelity & Deposit Co. of Md., 226 AD2d 990,
993 [1996]). "It is a well-established principle that a simple
breach of contract is not to be considered a tort unless a legal
                              -3-                522616

duty independent of the contract itself has been violated. This
legal duty must spring from circumstances extraneous to, and not
constituting elements of, the contract, although it may be
connected with and dependent upon the contract" (Clark-
Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]
[citations omitted]; accord Maines Paper & Food Serv., Inc. v
Pike Co., Inc., 137 AD3d 1366, 1369 [2016]).

      Turning next to plaintiff's breach of contract claim, in
support of its motion to dismiss, defendant submitted documentary
evidence including the affidavit of the superintendent of
schools, the contract, correspondence and plaintiff's invoices
dated June 28, 2013 and July 16, 2013. With respect to services
rendered in connection with securing additional aid for the 2012-
2013 school year, the documentary evidence shows that the parties
had agreed that plaintiff would be paid 50% of her fee within 30
days of the additional aid appearing in the 2012-2013 output
reports, and the remaining 50% on June 15, 2013. As relevant
here, Education Law § 3813 (2-b) provides that, "no action . . .
shall be commenced against [a school district] more than one year
after the cause of action arose" (see Matter of Amorosi v South
Colonie Ind. Cent. School Dist., 34 AD3d 1073, 1073-1074 [2006],
affd 9 NY3d 367 [2007]). A breach of contract cause of action
accrues and begins to run when the plaintiff possesses a legal
right to demand payment (see Hahn Automotive Warehouse, Inc. v
American Zurich Ins. Co., 18 NY3d 765, 770 [2012]; Kingsley Arms,
Inc. v Copake-Taconic Hills Cent. School Dist., 9 AD3d 696, 698
[2004], lv dismissed 3 NY3d 767 [2004]; Albany Specialties v
Shenendehowa Cent. School Dist., 307 AD2d 514, 516 [2003]), and
not when a plaintiff actually bills a defendant (see Hahn
Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d at
771; see also Wendover Fin. Servs. v Ridgeway, 137 AD3d 1718,
1719 [2016]). Accordingly, based on the documentary evidence,
June 15, 2013 was the earliest date on which plaintiff could have
exercised her legal right to request full payment for her
services in securing additional aid for the 2012-2013 school year
and, thus, this was the operative date (see generally Hahn
Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d at
771; Kingsley Arms, Inc. v Copake-Taconic Hills Cent. School
Dist., 9 AD3d at 698). Therefore, plaintiff had until June 15,
2014 to file her complaint. As plaintiff's breach of contract
                              -4-                522616

cause of action was filed on August 27, 2014, it is time-barred.
The fact that plaintiff submitted invoices on later dates does
not toll or extend the one-year statute of limitations (see Hahn
Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d at
771; see also Elie Intl., Inc. v Macy's W. Inc., 106 AD3d 442,
443 [2013]).

      A cause of action for an account stated "accrues on the
date of the last transaction in the account" (Elie Intl., Inc. v
Macy's W. Inc., 106 AD3d at 443; see generally Joseph Gaier, P.C.
v Iveli, 287 AD2d 375, 375 [2001]). Plaintiff wrote defendant a
letter, dated July 17, 2013, in which she stated that she was
enclosing a revised invoice that reflected "the total amount due"
for the additional aid she secured for defendant's 2012-2013
school year. The revised invoice, dated July 16, 2013, sought
payment from defendant in the amount of $65,677.05 for "Special
Education Aid Claim," and this is the last transaction reflected
in the invoice (see Elie Intl., Inc. v Macy's W. Inc., 106 AD3d
at 443; Joseph Gaier, P.C. v Iveli, 287 AD2d at 375). As
plaintiff did not commence this action until August 27, 2014,
Supreme Court properly dismissed plaintiff's account stated cause
of action as time-barred.

      Plaintiff mistakenly argues that her cause of action began
to run when she filed her notice of claim. Here, Education Law
§ 3813 (2-b) plainly states that "no action . . . shall be
commenced against any [school district] more than one year after
the cause of action arose," and there is no authority indicating
that the statute of limitations begins to run when a plaintiff
files a notice of claim, especially here, where accrual of a
claim for purposes of the notice of claim is "deemed to have
occurred as of the date payment for the amount claimed was
denied" (Education Law § 3813 [1]; see generally Albany
Specialties v Shenendehowa Cent. School Dist., 307 AD2d at 514-
516).

      We have reviewed plaintiff's remaining arguments and find
that they lack merit.
                        -5-                  522616

Egan Jr., J.P., Lynch, Devine and Clark, JJ., concur.



ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
