West Hills Auto Repair, Inc. v State of New York

West Hills Auto Repair, Inc. v State of New York 2006 NY Slip Op 06407 [32 AD3d 849] September 12, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 08, 2006

West Hills Auto Repair, Inc., Appellant,
v
State of New York, Respondent.

—[*1]

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was in existence and was breached by the New York State Department of Transportation (hereinafter the DOT) when the DOT rescinded its extension offer.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 NY2d 685, 690-691 [1995]; Preferred Mtge. Brokers v Byfield, 282 AD2d 589 [2001]). Prudenti, P.J., Mastro, Spolzino and Dillon, JJ., concur.