"The word `available' in such context relates to the appropriation of funds by the Legislature and the allocation of such funds by the appropriate officer or body, such that the unavailability is dependent upon a legislative or budgetary determination or directive not to provide funds for the expenditure in question." Forelli v. State of New York; 179 A.D.2d 394, 577 N.Y.S.2d 844, 845 (1st Dept. 1992) (citing Starling, 286 N.Y. at 272, 36 N.E.2d 201; Amarnick; 372 N.Y.S.2d at 947). As defined by other courts, "available" means "a request made by [a] responsible head of a department for [the] items only which are necessary to a proper and efficient administration of the department, and the approval of those items by the final budgetary authority."

” Such clauses are intended to be utilized as a shield against the imprudent use of taxpayers' dollars, and not as a sword to divorce the State, for purposes of its own convenience, from a contract fairly entered into and honestly performed ( see Rochester Fund Muns. v. Amsterdam Mun. Leasing Corp., 16 A.D.3d 861, 862, 791 N.Y.S.2d 698; Rochester Fund Muns. v. Amsterdam Mun. Leasing Corp., 296 A.D.2d 785, 786, 746 N.Y.S.2d 512; Forelli v. State of New York, 179 A.D.2d 394, 396, 577 N.Y.S.2d 844; Green Is. Contr. Corp. v. State of New York, 117 Misc.2d 435, 437, 458 N.Y.S.2d 828, affd.99 A.D.2d 330, 473 N.Y.S.2d 55). Nevertheless, “even though a municipality may possess sufficient funds to satisfy a particular obligation, such funds cannot be deemed ‘available’ if the expenditure thereof would be improvident” (Rochester Fund Muns. v. Amsterdam Mun. Leasing Corp., 16 A.D.3d at 862, 791 N.Y.S.2d 698, citing Starling Realty Corp. v. State of New York, 286 N.Y. 272, 278, 36 N.E.2d 201). Here, although in its lease with the NCIDA the District promised to seek appropriations sufficient to make the lease payments, the lease also repeatedly stated that the District's liability for payments was conditioned upon the appropriation of funds. Indeed, the District's promise to seek appropriations was tempered by the provision stating that it was required to do so only “subject to the provisions of Section 24 hereof.”

Such clauses are enforceable only where it has been established that funds were not available "in the course of ordinary budgetary procedure[s]" (Starling Realty Corp. v. State of New York, 286 N.Y. 272, 278; see, Green Is. Contr. Corp. v. State of New York, 99 A.D.2d 330, 332, lv denied 66 N.Y.2d 605). Stated another way, "any unavailability of funds must not have been the result of any improper act or omission by the [municipality]" (Green Is. Contr. Corp. v. State of New York, supra, at 332; see, Forelli v. State of New York, 179 A.D.2d 394, 396), nor may the municipality make such funds "unavailable" as a matter of convenience (see, Adson Indus. v. State of New York, 28 A.D.2d 1183, 1183-1184).

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 N.Y. 272, 277; cf., Forelli v. State of New York, 179 A.D.2d 394). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

"Thus, in determining the subject matter jurisdiction of the Court of Claims, the threshold question is [w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim'" ( id. quoting Matter of Gross v Perales, 72 NY2d 231, 236). Here, claimant only seeks to recover grant money that was allegedly awarded to it by the New York State Legislature pursuant to a written contract and, accordingly, the Court has jurisdiction of the claim ( see Starling Realty Corp. v State of New York, ( 286 NY 272, rearg denied 286 NY 696; Drislane v State of New York, 7 AD2d 141; Amarnick v State of New York, 84 Misc 2d 112, affd 52 AD2d 1007; Forelli v State of New York, 179 AD2d 394; and New York City Housing Auth. v State of New York, 294 AD2d 105, lv denied 98 NY2d 611). The Court also concludes that triable issues of fact exist with respect to whether funds were "appropriated and available" under contract #495, thereby precluding an award of summary judgment to defendant.