WEST HILLS AUTO REPAIR INC v. STATE (2006)

In a claim, inter alia, to recover damages for breach of contract, the claimant appeals, as limited by its brief, from so much of an order of the Court of Claims (Marin, J.) dated November 29, 2004, as denied its motion for summary judgment on its first cause of action, to recover damages for breach of contract.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A “Supplemental Agreement,” by which the claimant indicated its acceptance of an offer to extend a certain Highway Emergency Local Patrol contract, was expressly conditioned upon the approval of the Comptroller of the State of New York (hereinafter the Comptroller).   Since the claimant presented no evidence showing that the Comptroller approved the Supplemental Agreement, it failed to make a prima facie showing that the Supplemental Agreement was in existence and was breached by the New York State Department of Transportation (hereinafter the DOT) when the DOT rescinded its extension offer.   Accordingly, the Court of Claims properly denied the claimant's motion for summary judgment on its first cause of action, to recover damages for breach of contract (see Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690-691, 636 N.Y.S.2d 734, 660 N.E.2d 415;  Preferred Mtge. Brokers v. Byfield, 282 A.D.2d 589, 723 N.Y.S.2d 230).