
    Prudential Farms of Nassau County, Inc., Respondent, v Educational Food Management Services, Inc., Defendant, and Roosevelt School District, Appellant.
    [623 NYS2d 603]
   —In an action to recover damages, inter alia, for unjust enrichment, the defendant Roosevelt School District, appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (O’Brien, J.), dated May 19, 1993, as (1) denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it and (2) granted the plaintiffs cross motion for leave to serve a late notice of claim and an amended complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the cross motion is denied, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendant is severed.

The plaintiff commenced this action by service of a summons and complaint on September 23, 1992, without first serving a notice of claim pursuant to Education Law § 3813 (1). The complaint alleges that the appellant, Roosevelt School District (hereinafter the school district), failed to pay the plaintiff for milk and other dairy products that the plaintiff had delivered to the school district between September of 1991 and August of 1992 pursuant to a contract between the school district and the defendant Educational Food Management, Inc. (hereinafter EFM), which provided, inter alia, that EFM operate the school district’s food service program. On or about October 20, 1992, the plaintiff purportedly mailed a notice of claim to the Superintendent of the school district.

Contrary to the plaintiffs contention, since there is no evidence that the Roosevelt Board of Education, which is the school district’s governing body, ever received a notice of claim, the complaint should have been dismissed insofar as it is asserted against the school district (see, Education Law § 3813 [1]; see also, Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 548-549; Matter of Jackson v Board of Educ., 194 AD2d 901, 903; Bayer v Board of Educ., 29 AD2d 537).

In light of our determination, we do not reach the parties’ remaining contentions. Balletta, J. P., Thompson, Joy and Florio, JJ., concur.  