New York State Court of Claims

New York State Court of Claims

HAMLIN BEACH v. THE STATE OF NEW YORK, #2002-015-235, Claim No. 104780, Motion No. M-64300


Cause of action alleging breach of a license agreement to operate concession and catering facility at State park dismissed based upon contractual language necessitating approval by Attorney General and Comptroller despite state failure to demonstrate applicability of State Finance Law § 112 (2) (a) or (3).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
John J. Del Monte, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eidin Beirne, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The State's motion to amend the caption to name the State as the sole defendant is denied. The State's motion for summary judgment dismissing those portions of the claim sounding in breach of contract is granted. The claim seeks recovery of $2,275,000.00 on each of three purported causes of action sounding in breach of contract; breach of implied contract (quasi-contract); and negligent misrepresentation related to a license agreement allegedly entered into between claimant corporation and the New York State Office of Parks, Recreation and Historic Preservation dated June 6, 1999. The copy of the agreement attached to the claim filed with the Clerk of the Court bears the date of November 4, 1999 and the signature of only one individual identified as Louis F. Antonacci, President, and several blank signature lines for certain State officials including the Attorney General and the State Comptroller. Another copy of the agreement attached as Exhibit 1 to defendant's motion papers likewise bears only the signature of Mr. Antonacci. Appended to the agreement is a Bid Proposal Form also dated November 4, 1999 along with Exhibits numbered "1" and "2" and attachments "A," "B, "un-designated" and a multi-page document labeled "Appendix A" (Standard Clauses for All New York State Contracts).

The proposed license agreement involved the operation of the food, beverage and banquet concessions at Hamlin Beach State Park located in Monroe County on the shore of Lake Ontario. It provided for a license fee determined as a percentage of gross receipts from the sale of food, beverages, catering and sundry sales in accordance with a schedule set forth in the bid/request for proposals # X000424 (attached to motion as part of Exhibit A). It further provided a license fee of ten percent of gross receipts for a camping equipment rental pilot project and for the investment and completion of capital improvements in the facilities of not less than $34,000.00 within the first two years of the agreement (see, Bid/Proposal Form [Exhibit A] and attached Exhibit 1). The stated term of the proposed license agreement was from June 6, 1999 to December 31, 2004 with possible extensions for two additional terms of two (2) years each at the discretion of the defendant upon written amendment of the license agreement (see, Subdivision B, paragraph 1 of movant's Exhibit A).

The defendant moved to dismiss the claim in its entirety contending that no contract exists between the parties since the contract was not approved by the New York State Comptroller and filed in his office pursuant to State Finance Law § 112 (2) (a). Absent the existence of a contract, defendant argues no breach of contract may be found.

Support for the instant motion consists of the affirmation of an Assistant Attorney General who purports to have personal knowledge but does not satisfactorily explain the basis of such knowledge and the affirmation of Christopher Pushkarsh, Director of Concessions and Contract Administration in the State Office of Parks, Recreation and Historic Preservation. The motion is further supported by copies of the pleadings, including a copy of the subject license agreement and a copy of a notice of intention to file a claim verified and dated June 9, 2000. Defense counsel seeks dismissal on the ground that the subject license agreement never became effective since it was not approved by the State Comptroller as required by State Finance Law § 112 (2) (a) and pursuant to the terms of the license agreement itself.

Claimant opposed the motion and without benefit of a notice of motion or notice of cross-motion seeks leave of court to amend the claim pursuant to CPLR 3025 (b) to allow claimant to allege causes of action sounding in implied contract, fraud, misrepresentation, unjust enrichment and/or promissory estoppel (see, Antonacci affidavit in opposition, paragraph 7).

It is not disputed that paragraph 14 of Section B (Special Requirements) of the subject license agreement states: "This License shall not become effective until it has been approved by the Attorney General and the Comptroller of the State of New York." Nor does claimant deny that the language of paragraph 21 of Section A (General Requirements for this License) of the license agreement incorporated by reference an attached Appendix A entitled "Standard Clauses For All New York State Contracts" which provides, in relevant part, the following:
3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State Finance Law (or, if this contract is with the State University or City University of New York, Section 355 or Section 6218 of the Education Law), if this contract exceeds $10,000 ( or the minimum thresholds agreed to by the office of the State Comptroller for certain SUNY and CUNY contracts), or if this is an amendment for any amount to a contract which, as so amended, exceeds said statutory amount, or if, by this contract the State agrees to give something other than money when the value or reasonably estimated value of such consideration exceeds $10,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comptroller and filed in his office.
The language cited above is similar to the language contained in the following portions of section 112 of the State Finance Law in effect until July 1, 2000[1]:
2. (a) Before any contract made for or by any state agency, department, board, officer, commission, or institution, shall be executed or become effective, whenever such contract exceeds ten thousand dollars in amount, it shall first be approved by the comptroller and filed in his or her office, provided, however, that the comptroller shall make a final written determination with respect to approval of such contract within ninety days of the submission of such contract to his or her office unless the comptroller shall notify, in writing, the state agency, department, board, officer, commission, or institution prior to the expiration of the ninety day period, and for good cause, of the need for an extension of not more than fifteen days, or a reasonable period of time agreed to by such state agency, department, board, officer, commission, or institution and provided, further, that such written determination or extension shall be made part of the procurement record pursuant to paragraph f of subdivision one of section one hundred sixty-three of this chapter.
* * *
3. A contract or other instrument wherein the state or any of its officers, agencies, boards or commissions agrees to give a consideration other than the payment of money, when the value or reasonably estimated value of such consideration exceeds ten thousand dollars, shall not become a valid enforceable contract unless such contract or other instrument shall first be approved by the comptroller and filed in his office.
It is well established that the proponent of a motion for summary judgment must "establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212 subd. [b]), and he must do so by tender of evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 citing Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).

Although the movant has asserted that the agreement was subject to approval by the Comptroller pursuant to State Finance Law § 112 (2) (a) and the affidavit of Christopher Pushkarsh establishes that the agreement was never approved, noticeably absent is proof establishing that the value of the license agreement exceeded the monetary limits contained in the law. The defendant presented no evidence establishing or estimating the agreement's value so as to permit a determination that the approval requirements contained in State Finance Law § 112 (2) (a) or (3) applied as a matter of law.

Failure to establish the applicability of the Comptroller approval provisions of the State Finance Law is not, however, determinative of the matter for the reason that the express terms of the agreement provide that the license shall not become effective until approved by the Attorney General and the Comptroller (Special Requirements, paragraph 14). The defendant has submitted a copy of the agreement in which the signature lines provided for the approval of both the Attorney General and the Comptroller are unexecuted together with the Pushkarsh affidavit which asserts that the agreement was never signed by the Comptroller. Claimant does not assert at any point that the license agreement was approved by the Attorney General and/or the Comptroller. As a result, no contract ever came into being between the parties and no cause of action may be countenanced for the breach thereof. The defendant's motion to dismiss that portion of the claim premised upon breach of contract is granted.

Although defendant appears to have sought dismissal of the claim in its entirety, the motion addresses only the question of contractual liability. As recognized by defense counsel in paragraph 3 of the affirmation in support of the motion, the claim asserts alternate theories of liability including implied or quasi-contractual liability. The motion has not addressed these alternative grounds and the claim may not, therefore, be dismissed in its entirety. It is sufficient to note in this regard that the Court of Claims has jurisdiction over actions involving implied contracts (Court of Claims Act § 9 (2)) including quasi-contractual causes of action for unjust enrichment where the primary purpose is the recovery of money damages against the State (see, Psaty v Duryea, 306 NY 413; Dominick Dan Alonzo, Inc. v State of New York, 73 AD2d 760).

Accordingly, the defendant's motion is granted to the extent of dismissing that portion of the claim alleging a cause of action for breach of contract.

March 29, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 14, 2001;
  2. Affirmation of Eidin Beirne dated November 14, 2001 with exhibits;
  3. Affirmation of Christopher M. Pushkarsh dated November 14, 2001;
  4. Affidavit of Louis F. Antonacci sworn to January 8, 2002;
  5. Affidavit of John J. Del Monte sworn to January 8, 2002

Submitted but not considered:

  1. Letter from Eidin Beirne dated January 15, 2002.

[1]See, L 2000, ch 95 § 6 which amended subdivision (2) to raise the monetary threshold from ten to fifteen thousand dollars.