Summary
In Adson, again funds were available to pay rent but the State agency involved desired to expend them for quarters at another location.
Summary of this case from Amarnick v. State of N.YOpinion
November 22, 1967
Appeal from judgments of the Court of Claims awarding the claimant the sum of $1,333.34 (Claim No. 42687), and $21,000 (Claim No. 42688) and interest for rent due under leases terminating May 31, 1963. In May, 1958 the State entered into a lease with claimant's predecessor in title for certain office space at 488 Broadway, Albany, New York for a term of five years commencing June 1, 1958, and ending on May 31, 1963 for an annual rental of $126,000 to be paid in equal monthly installments. In November, 1958 the State leased storage space in the same premises for a term commencing January 1, 1959 and ending on May 31, 1963 for an annual rental of $4,000 to be paid in equal monthly installments. The space provided by both leases was occupied by the State Architect's office until February 9, 1963 when that office was moved to new quarters at the State Campus in Albany in a building constructed by the New York State Employees' Retirement System which had entered into a lease-purchase agreement for the new building with the State. When the Department of Public works submitted its budget request for the year 1963-64, it requested funds to pay claimant rent for the months of April and May, 1963. However, the Director of the Budget deleted the appropriation request for claimant's April and May rent since the new building would be ready for occupancy by the State Architect's office before April 1, 1963. In January, 1963 claimant received oral notice that the State Architect's office would be moved and, on May 23, 1963, claimant received a formal written notice from the State cancelling the leases retroactive to March 31, 1963. Each of the said leases contained an executory clause pursuant to the provisions of subdivision 2 of section 161-a State Fin. of the State Finance Law which provided that the contract of the State shall be deemed executory only to the extent of the moneys available for the leasing of said premises, and that no liability shall be incurred by the State beyond the moneys available for such purpose. The State contends that no moneys were "available" within the meaning of the contract provisions. During the months in question, the State Architect's office occupied space in the new building for which the State made payments of $23,226 for April and more than $24,000 in May. Claimant, therefore, contends that since money payments were made from State funds to provide office space for the State Architect's office during April and May of 1963, it cannot be said that there were no moneys available for that purpose. In the case of Drislane v. State of New York ( 7 A.D.2d 141), the claimant was awarded rent for the remaining period of a lease after the State had vacated and moved into a new building where it rented new space for the same State office. This court affirmed and held that the State's removal was for its own convenience and not because funds were unavailable. The holding in the Drislane case was to the effect that if there were moneys available to pay for new office space for the same State employees formerly housed in claimant's property, then there were moneys available for that purpose in the sense of the law and the executory clause did not apply. The case of Starling Realty Corp. v. State of New York ( 286 N.Y. 272) relied upon by the appellant on this appeal, was distinguished by this court in the Drislane case. In Starling a State office was closed, and no further moneys were allocated for its maintenance, and the Court of Appeals held that the State was not compelled to put funds into the budget for the rental of an unnecessary office. Here, as in the Drislane case, the office space vacated was not because it was unnecessary and the office was not discontinued, but instead removed to a new relocation by the decision of the State. Under such circumstances, the claimant is entitled to rent to the end of its lease. It appears from the record that the monthly rent for the storage space was in the sum of $333.34, and that the total amount of damages for rental in Claim No. 42687 should be in the sum of $666.67 plus interest. Judgment in Claim No. 42687 modified, on the law and the facts, so as to reduce the award to the sum of $666.67 and interest, and, as so modified, affirmed, without costs. Judgment in Claim No. 42688 affirmed, without costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.