Contracts · MBE-tested

Mergentime Corporation, Appellant, v. State of New York, Respondent

152 A.D.2d 659·New York Supreme Court, Appellate Division·1989·NY

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Opinion

Mergentime Corporation, Appellant, v State of New York, Respondent. (Claim No. 75070.) [MAJORITY] In an action to recover damages for breach of contract, the claimant appeals from an order of the Court of Claims (Benza, J.), dated June 10, 1988, which granted summary judgment dismissing the claim as premature, without prejudice to refile. Ordered that the order is affirmed, with costs. Contrary to the claimant’s position, the Court of Claims did not err in dismissing the breach of contract claim as premature. The record reflects that the contract work had not been substantially performed on the date the claim was served (see, 13 McQuillin, Municipal Corporations § 37.132 [3d rev ed]) nor had the claimant requested final payment thereunder (see, Forest-Fehlhaber v State of New York, 74 AD2d 272). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.