New York State Court of Claims

New York State Court of Claims

NYMC v. THE STATE OF NEW YORK, #2002-028-029, Claim No. 104385, Motion No. M-64298


Motion to dismiss claim granted.

Case Information

NYMC, Inc.
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:
Defendant's attorney:
BY: Cornelia Mogor, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 15, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the Defendant's motion for summary judgment

pursuant to CPLR § 3212:

  1. Notice of Motion, supporting affirmation of Assistant Attorney General Cornelia Mogor (Mogor Affirmation) and annexed affidavit of Andrew M. Miner (Miner Affidavit), filed November 13, 2001 with annexed Exhibits A-E and memorandum of law
  1. Opposition: None

FILED PAPERS: Verified Claim and Verified Answer.

This Claim arises from the bidding, award and administration of Contract No. Q0029 (the Contract) for bus transportation services for inmates of Hudson Correctional Facility. The following recitation of facts is based upon the Court's review of the papers submitted in connection with the instant motion. Claimant, NYMC, Inc.[1] submitted a sealed bid for the Contract. The proposed term of the Contract was from March 1, 2001 to February 28, 2002 with options for three one-year renewals. Bids were opened on January 10, 2001 and NYMC, Inc. was the apparent low bidder. The Contract, as bid by NYMC, Inc. had a value in excess of fifteen thousand dollars ($15,000.00). However, the approvals of the Attorney General's Office and the Office of State Comptroller were not obtained until March 7, 2001 and April 4, 2001, respectively. Thereafter, a purchase order was issued for bus transportation to begin on May 7, 2001.

Claimant alleges that it was damaged by Defendant's delay in the approval of the Contract and then by Defendant's unilateral actions in delaying the commencement of the Contract once the necessary approvals were in place. Claimant asserts that vague assurances and representations were made upon which it detrimentally relied (Claim ¶¶ 12 and 13). The items of damages Claimant seeks are for its costs of being prepared to provide the bus transportation (Claim ¶14) and lost profits from having foregone private charter work (Claim ¶ 15).

The Defendant has moved for summary judgment pursuant to CPLR §3212 asserting, inter alia, that Claimant has failed to state a cause of action based upon the Contract being approved more than sixty (60) days after bid opening (Mogor Affirmation, ¶2).

The rule governing summary judgment is well established: "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). "[R]egardless of the sufficiency of the opposing papers", in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324;. see also, Busanic v State of New York, [Ct Cl, Read, J.], Claim No. 99300, Motion Nos. M-62563, CM-62757, UID #2001-001-015, March 26, 2001).[2] Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In

doing so, the Court must examine the proof in a light most favorable to the party opposing the motion.

The first issue raised on this motion for summary judgment is whether Claimant states a cause of action for preparatory expenses incurred in anticipation of delivering services to the Defendant pursuant to the Contract. In support of its motion, the Defendant relies upon State Finance Law §112 which provides in pertinent part:
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 fifteen 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...

(State Finance Law §112[2][a]), together with the plain language of the bid proposal and contract documents which, under the heading "EXPENSES PRIOR TO AWARD", provide:
The Issuing Entity is not responsible for any costs incurred by a Bidder in the preparation and production of a bid or for any work performed prior to contract award and/or issuance of an approved Purchase Order.
(see, Exhibit A, General Specifications ¶ 18). Defendant argues that Claimant's option, as time marched on without the necessary approvals, was to withdraw its bid or shorten the time period of its offer (Miner Affidavit, ¶5).

The Claimant, as a party contracting with the State, is chargeable with knowledge of the statutes which regulate the State's contracting powers and is bound by them (Parsa v State of New York, 64 NY2d 143, 147). Likewise, Claimant is chargeable with knowledge of the documents it submitted and received as part of the bid process for the Contract. The execution of a formal written contract after its approval by the comptroller forms the basis of the liability of the state. "None of its officers may impose upon it a contractual obligation except in the manner prescribed. ... If there is no contract there is no liability" (Belmar Contr. Co. v State of New York, 233 NY 189, 194). Similarly, delay in the comptroller's certification, if any, does not give rise to liability (see, Belmar Contr. Co. v State of New York, supra; Jaffie Contracting Co., Inc. v Board of Educ. of City of New York, 90 AD2d 163, 165). On this record, State Finance Law §112 precludes the Court from finding a binding contract between the parties prior to April 4, 2001 - the date the Comptroller's approval was affixed to the Contract. Moreover, Claimant cannot escape the plain language of §18 of the General Specifications by which Claimant agreed that the Defendant would not be answerable for the very damages it seeks.

Claimant also seeks damages based upon the State's unilateral decision, made subsequent to the Contract's approval, to issue a Purchase Order. Claimant asserts this delayed the Contract start date for one month, contrary to the Contract's express term. In this case, the entire transaction is covered by and is controlled by the express agreement (Miller v Schloss, 218 NY 400, 408-409). While at first blush appealing, Claimant's theory would require the Court to ignore certain express terms of the agreement which required Claimant to await a purchase order before furnishing or delivering product[3] ( see, Exhibit A, General Specifications ¶ 44). That section further provided that "if a purchase order is not received within two weeks... it is the responsibility of the Contractor to request in writing... a Purchase Order" (Id.). In the Court's view, this contract language, again, to which Claimant agreed, contemplated and provided for the very delay which ultimately developed (see, Dominick P. Massa & Sons, Inc. v State of New York, 147 AD2d 799, 800 [State fully apprised claimant of the procedures which would be used under the circumstances]).

Accordingly, the Court finds the Defendant has satisfied its burden and established that Claimant has failed to state a cause of action for damages for the periods either before or after the Contract was awarded.

There being no opposition to the motion, and for the foregoing reasons, Defendant's motion is GRANTED and the Claim shall be and hereby is dismissed in its entirety.[4]

May 15, 2002
Albany, New York

Judge of the Court of Claims

The Claimant is referred to variously as New York Motorcoach, Inc., N.Y.M.C., Inc and NYMC, Inc. in the contract documents and other submissions required by the bid (see, Mogor Affirmation, Exhibit A)
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Product is defined by the bid and contract documents to include services (see, Exhibit A, General Specifications ¶ 6).
In light of this decision, the Court did not reach Defendant's alternative arguments that the Claim was defectively verified or that Claimant was not the party to the contract