New York City Housing Authority v. State

—Order, Court of Claims of the State of New York (S. Michael Nadel, J.), entered January 31, 2001, which denied defendant’s motion for summary judgment dismissing the claim, denied claimant’s cross motion for summary judgment and granted claimant’s application to file and serve a late notice of claim, unanimously modified, on the law, to the extent of granting defendant’s motion for summary judgment and denying claimant’s motion for leave to file and serve a late notice of claim, and otherwise affirmed, without costs.

Claimant argues that subsidy funds have been withheld from it in violation of the parties’ consolidated contract inasmuch as the payment of subsidies under the contract was expressly subject to the limitations set forth in Public Housing Law § 73, which requires that this type of subsidy be paid “only with moneys appropriated therefor from the general fund of the state.” However, it is plain that claimant possesses no cognizable claim for relief. That the executive branch and Legislature in the lawful performance of their budgetary responsibilities elected not to appropriate sufficient funds for payment of a greater annual subsidy is not actionable (see, Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233, 239; and see, Saxton v Carey, 44 NY2d 545, 549). In the final analysis, the requirement that the subject subsidy be paid with monies appropriated from the general fund constituted a type of “executory clause,” i.e., one conditioning payment of funds upon their availability, here by means of legislative appropriation. The inclusion of such a clause was “in accord with the requirement of a declared public policy,” and “[w]e may not ignore the limitations by which the Legislature has thus restricted the expenditure of public moneys” (Starling Realty Corp. v State of New York, 286 NY 272, 277; cf., Forelli v State of New York, 179 AD2d 394). Concur—Saxe, J.P., Buckley, Rosenberger, Friedman and Marlow, JJ.