United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
G. KOELTL, District Judge.
plaintiff, Datamaxx Applied Technologies, Inc., has sued the
defendants, the City of New York (the "City"}, the
New York City Police Department (the "NYPD"), and
William J. Bratton, for breach of contract, breach of the
duty of good faith and fair dealing, unjust enrichment, and
account stated arising out of aborted purchases of two
software programs --"Accident Report" and
"Test System" -- developed by Datamaxx for the
NYPD. The defendants have moved for summary
judgment pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure principally on the ground that any proposed
contracts between Datamaxx and the City are not enforceable
because the Comptroller of the City of New York did not
register them as reguired by section 328 of the New York City
the Court heard oral argument on the defendants' motion
on January 19, 2018, the parties asked the Court to hold the
pending motion in abeyance to allow them to discuss
settlement. The Court twice extended the deadline for the
parties to report on whether they had been able to reach a
settlement,, each time informing the parties that no further
extensions would be granted. The final deadline to report to
the Court was March 28, 2018. That day came and passed
without word from the parties. In response to the Court's
inquiry on March 29, 2018, the parties informed the Court
that they had not yet been able to reach a settlement. The
Court will therefore decide the motion.
defendants' motion for summary judgment is
granted in part and denied in
part as follows.
breach of contract claim arising out of the "Accident
Report" transaction is not dismissed but its breach of
contract claim arising out of the "Test System"
transaction is dismissed. By first signing the "Accident
Report" contract, then submitting the contract to the
Comptroller for approval, and then withdrawing the contract
from the Comptroller's review, the City violated
"[t]he general rule . . . that a party to a contract
cannot rely on the failure of another to perform a condition
precedent where he has frustrated or prevented the occurrence
of the condition." Kooleraire Serv. &
Installation Corp. v. Bd. of Educ., 268 N.E.2d
782 (N.Y. 1971); see also Bolt Elec, Inc. v. City of New
York, 53 F.3d 465, 470-71 (2d Cir. 1995). However, the
City is not liable for breaching the "Test System"
contract because, unlike the "Accident Report"
contract, the City never sufficiently manifested assent to
purchase "Test System."
good faith and fair dealing claim is dismissed only to the
extent it is asserted with respect to the "Test
System" contract. See Travelers Indem. Co. v. CDL
Hotels USA, Inc., 322 F.Supp.2d 482, 493 (S.D.N.Y. 2004)
("[T]here can be no breach of the duty of good faith and
fair dealing where there is no 'valid and binding
contract from which such a duty would arise.'
" (quoting Am.-European Art Assocs., Inc. v.
Trend Galleries, Inc., 641 N.Y.S.2d 835, 835 (1st
Dep't 1996))). The good faith and fair dealing claim
cannot be dismissed with respect to the "Accident
Report" contract because there is evidence that the
defendants attempted to frustrate the accomplishment of the
unjust enrichment claim is dismissed to the same extent as
its breach of contract claims. There are too many issues of
fact with respect to the "Accident Report"
transaction to award summary judgment to the defendants on
the unjust enrichment claim. The cases the City cites for the
proposition that quasi-contractual remedies are categorically
unavailable when a municipal contract is declared illegal or
unenforceable are distinguishable. However, the unjust
enrichment claim with regard to "Test System" must
be dismissed because there is no evidence showing that any
work Datamaxx performed on "Test System" conferred
a benefit on the City for which the City did not pay.
Datamaxx's account stated claim is also dismissed respect
to the "Test System" transaction but not with
respect to the "Accident Report" transaction.
See Air Atlanta Aero Eng'g Ltd. v. SP Aircraft Owner
I, LLC, 637 F.Supp.2d 185, 197 (S.D.N.Y. 2009) ("In
the absence of a claim establishing underlying liability, the
account stated claim is not viable." (brackets
parties are directed to appear for a conference in this
matter on April 5, 2018, at 10:30 a.m. The
Clerk is directed to close all pending motions.
 The Court exercises subject matter
jurisdiction pursuant to 28 U.S.C. § 1332. The parties
agree that New York substantive law applies to this
 See S.T. Grand, Inc. v. City of
New York, 298 N.E.2d 105 (N.Y. 1973) (denying
quantum meruit relief to a municipal contractor
convicted of bribery in an effort "to deter violation of
the bidding statutes" and serve the "grave public
concern that there be absolute honesty in the procuring of a
public contract"); Seif v. City of Long Beach,
36 N.E.2d 630 (N.Y. 1941) (denying quantum meruit
relief where the contractor acted solely on the authorization
of an individual city councilmember who was not empowered to
bind the city on his own); Henry Modell & Co. v. City of
New York, 552 N.Y.S.2d 632 (1st Dep't 1990) (denying
relief where the contractor acted on consent from an
administrator without authority to bind the city and no
attempt was made to follow the city's procurement
regulations); Lutzken v. City of Rochester, 184
N.Y.S.2d 483 (4th Dep't 1959) (denying quantum
meruit relief where "the record [was] not clear or
conclusive as to any promise made by the city to pay [the]
plaintiff"); Michael R. Gianatasio, PE, P.C. v. City
of New York, 37 N.Y.S.3d 828 (N.Y. Sup. Ct. 2016)
(denying quantum meruit relief where the contract
under which the plaintiff ...