New York State Court of Claims

New York State Court of Claims

CARTONIA v. THE STATE OF NEW YORK, #2006-032-005, Claim No. 108983, Motion No. M-69800


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:
David Gerald Jay, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael W. Friedman, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 7, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves this Court for an order granting summary judgment pursuant to CPLR 3212, dismissing the claim because defendant was not a party to the contract alleged in the claim.

In March 2004, claimant commenced this action seeking damages for salary and expenses incurred by claimant allegedly at the direction of the Governor's Traffic Safety Committee [hereinafter GTSC]. Claimant alleges that at the direction of GTSC, she continued to work on a grant project after a contract between herself and the City of Buffalo [hereinafter City] expired. Claimant alleges that she sustained damages for the period October 1, 2003 through February 29, 2004, in the amount of $27,562.50. The underlying circumstances are as follows:

In October 2002, the City received a grant for the "Travel Safe Programs" from defendant, through its agent the GTSC. This entity acts as a conduit for the National Highway Transportation Safety Administration and contracts with local governments who have submitted project proposals. The City had received this grant annually for 10 years and, as a result of each grant, entered into an one-year contract with GTSC. Pursuant to this practice and the October 2002 grant, the City and GTSC entered into a one-year contract, ending in September 2003, and setting forth the terms and conditions of the grant, including a maximum contract price of $67,650.00. As a result of these annual grants, the City also entered into a yearly contract with claimant, who provided consultant services in the area of traffic safety. As a result of the October 2002 grant, the City and claimant entered into an one-year contract, ending in September 2003, and which provided that claimant receive a maximum of $67,650.00, for her services, travel expenses and supplies. After the expiration of both contracts in September 2003, claimant continued to provide her services to the City. On December 5, 2003, GTSC notified claimant that funding for the grant was denied, prompting claimant to bring this action. After joinder of issue, defendant brought this motion to dismiss the claim.

In support of its motion, defendant argues that claimant was not a party to the contract entered between the City and GTSC and, thus, has no basis for pursuing a claim against defendant. In opposition, claimant acknowledges that she does not have contractual privity with defendant. Rather, she counters that she is a third-party beneficiary to the contract between the City and defendant and, alternatively, that she relied upon statements made by employees of GTSC to continue performing her duties beyond the September 2003 expiration of her contract with the City.

On a motion for summary judgment, the movant must make a prima facie showing that it is entitled to judgment as a matter of law by demonstrating the absence of any material issue of fact (see Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]). The burden then shifts to the nonmoving party to produce admissible evidence sufficient to establish the existence of material issues of fact, requiring resolution by a fact-finder (see id.).

In this case, it is undisputed that claimant is not a party to the contract between the City and defendant and cannot assert a breach of contract claim against defendant absent privity (see

Leblanc v Security Services Unit Employees of New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO
, 278 AD2d 732, 733 [3d Dept 2000]). A party lacking privity may assert, however, that he or she should be protected under a contract as an intended third-party beneficiary (see Bonwell v Stone, 128 AD2d 1013, 1014 [3d Dept 1987]). In such circumstances, the third-party beneficiary of a contract is bound by the terms of the contract that he or she seeks to enforce (see Rector v Calamus Group, Inc., 17 AD3d 960, 962 [3d Dept 2005]).

Here, both the contract that the City entered with defendant and the contract the City entered with claimant expired in September 2003, upon a maximum payment of $67,650.00. Thus, even if claimant is considered a third-party beneficiary of the City's contract with defendant, this contract expired at the end of its term in September 2003, upon payment of the full contract price. Claimant does not allege that she was not paid the full contract price. Thus, the terms of defendant's contract with the City were fully performed and claimant is entitled to nothing more under the terms of that contract.

Alternatively, claimant argues that she relied to her detriment on oral representations by employees of GTSC. Claimant avers that for the past ten years, she had worked in the same capacity for the City, and that its contracts with defendant have never been approved prior to the expiration of the preceding year's contract. In conformity with this practice, claimant avers that she had several conversations with the GTSC indicating that claimant should keep working, even though defendant's new contract with the City would not be approved until after October 1, 2003. Claimant's averments allege an implied contract.

There are two types of implied contracts recognized by the courts. The first, a contract implied in fact, rests upon the conduct of the parties. It is a true contract based upon an implied promise (see Parsa v State of New York, 64 NY2d 143, 148 [1984]; Hamlin Beach Camping, Catering, & Concessions Corp. v State of New York, 303 AD2d 849, 853 [3d Dept 2003). The second type is a contract implied in law for money had and received. It is an equitable cause of action premised not upon an actual contract, but upon unjust enrichment (see Hamlin Beach Camping, Catering, & Concessions Corp. v State of New York, supra).

Here, claimant avers that pursuant to the City's expired contract with defendant, she continued to provide services based on representations by GTSC that a new contract would be approved shortly, and defendant accepted claimant's performance of her services.[1] Such conduct could arise to a contract implied in fact, consisting of substantially the same terms and conditions as embodied in the expired written contract between defendant and the City (see Watts v Columbia Artists Management , Inc., 188 AD2d 799, 801), to which claimant would be a third-party beneficiary. This, however, is not the end of the inquiry. Given that a contract implied in fact is treated as an actual contract, it is subject to approval by the Comptroller (see State Finance Law § 112 [2]; see also Rosefsky v State of New York, 205 AD2d 120, 123 [3d Dept 1994]). Absent such approval, the contract is barred (see Rosefsky v State of New York, supra). Claimant fails to come forth with any proof that the Comptroller approved this new contract. Thus, a claim for a contract implied in fact cannot be maintained.

The Court next considers a contract implied in law for money had and received. "A contract implied-in-law exists where one party, without any expression of assent from the other, obtains or retains possession of money or other property that actually belongs to the latter, by oppression, extortion, deceit or similar means" (Rosefsky v State of New York, supra at 123). This type of claim has been permitted against a public body in instances where the claiming party paid money by mistake, money has been collected for an illegal tax or assessment, or property is erroneously taken or withheld by a public official (see Parsa v State of New York 64 NY2d 143, 148 [1984]). Here, defendant's alleged conduct simply does not rise to the level of oppression, extortion, deceit required. Further, claimant does not allege that defendant wrongfully retained money that belonged to claimant. Indeed, the record reflects that the money does not belong to claimant because the grant was not approved. Thus, a claim for contract implied in law cannot be maintained.

As such, claimant has not overcome defendant's prima facie showing that it is entitled to summary judgment. The claim must, therefore, be dismissed. In making this determination, the Court recognizes the harsh result to claimant, but is constrained by the mandate of the Legislature articulated in the State Finance Law § 112, and the overall benefit to citizens of this State from its application (see Hamlin Beach Camping, Catering, & Concessions Corp. v State of New York, 303 AD2d 849 [3d Dept 2003]).

Accordingly, defendant's motion is granted.

February 7, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed February 23, 2005;

2. Affirmation of Michael W. Friedman dated February 18, 2005; Exhibits A-B annexed;

3. Affidavit of Francine J. Cartonia filed March 24, 2005; unnumbered exhibits annexed;

4. Affirmation of David Gerald Jay filed March 24, 2005;

5. Reply Affirmation of Michael W. Friedman filed April 18, 2005; A-D annexed.

[1]For the purpose of this motion, the Court accepts, as it must, claimant's averments as true (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 [2004]).