MASONRY CORP v. STATE (2005)

In a claim, inter alia, to recover damages for breach of contract, the claimant appeals from an order of the Court of Claims (Collins, J.), entered September 23, 2004, which granted the defendant's motion for summary judgment dismissing the claim.

ORDERED that the order is affirmed, with costs.

The general contractor never entered into a “liquidating agreement” with the claimant which would have authorized the general contractor to bring a “pass-through” action against the State of New York (Barry, Bette & Led Duke v. State of New York, 240 A.D.2d 54, 56, 669 N.Y.S.2d 741;  see Postner & Rubin, New York Construction Law Manual § 3:23;  cf. Bovis Lend Lease LMB v. GCT Venture, 285 A.D.2d 68, 69-70, 728 N.Y.S.2d 25;  Schiavone Constr. Co. v. Triborough Bridge & Tunnel Auth., 209 A.D.2d 598, 599, 619 N.Y.S.2d 117;  Lambert Houses Redevelopment Co. v. HRH Equity Corp., 117 A.D.2d 227, 230-231, 502 N.Y.S.2d 433;  Ardsley Constr. Co. v. Port of N.Y. Auth., 61 A.D.2d 953, 403 N.Y.S.2d 43).   Therefore, the general contractor had no “right” to sue the State based on the damages allegedly sustained by the claimant and, accordingly, could not assign back this “right” to the claimant (Barry, Bette & Led Duke v. State of New York, supra at 56-57, 669 N.Y.S.2d 741;  cf. Bovis Lend Lease LMB v. GCT Venture, supra;  Schiavone Constr. Co. v. Triborough Bridge & Tunnel Auth., supra ).   The claim alleging breach of contract asserted directly against the State is barred due to the absence of privity of contract (see Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276, 282, 413 N.Y.S.2d 309, 385 N.E.2d 1238;  Bovis Lend Lease LMB v. GCT Venture, supra at 69, 728 N.Y.S.2d 25;  Barry, Bette & Led Duke v. State of New York, supra ).   The terms of the release dated April 9, 2002, issued to the State by the general contractor reflect no agreement by the State to waive its defense of privity to any claim against it that might be brought by the claimant.

Accordingly, the Court of Claims properly granted summary judgment dismissing the claim.