Board of Ed., Half Hollow Hills Central School Dist. No. 5, Towns of Huntington and Babylon v. Statewide Vending Corp.

• Decision Date: 09 November 1981
• Docket Number: No. 2,No. 1,1,2
• Citation: 443 N.Y.S.2d 760,84 A.D.2d 754
• Parties: , 1 Ed. Law Rep. 355 BOARD OF EDUCATION, HALF HOLLOW HILLS CENTRAL SCHOOL DISTRICT # 5, TOWNS OF HUNTINGTON AND BABYLON, New York, Appellant, v. STATEWIDE VENDING CORPORATION, etc., Respondent, et al., defendant; International Fidelity Insurance Company, third-party plaintiff; Al Hirschberger and Jessie Hirschberger, third-party defendants-respondents. (Action) STATEWIDE INDUSTRIAL CATERING OF DIX HILLS, INC., Plaintiff, v. HALF HOLLOW HILLS CENTRAL SCHOOL DISTRICT OF HUNTINGTON AND BABYLON, Defendant. (Action)
• Court: New York Supreme Court — Appellate Division

Page 760

443 N.Y.S.2d 760

84 A.D.2d 754, 1 Ed. Law Rep. 355

BOARD OF EDUCATION, HALF HOLLOW HILLS CENTRAL SCHOOL

DISTRICT # 5, TOWNS OF HUNTINGTON AND BABYLON, New

York, Appellant, v. STATEWIDE VENDING CORPORATION, etc., Respondent, et al., defendant;

International Fidelity Insurance Company, third-party plaintiff;

Al Hirschberger and Jessie Hirschberger, third-party

defendants-respondents. (Action No. 1)

STATEWIDE INDUSTRIAL CATERING OF DIX HILLS, INC., Plaintiff, v. HALF HOLLOW HILLS CENTRAL SCHOOL DISTRICT OF HUNTINGTON AND BABYLON, Defendant. (Action No. 2)

Supreme Court, Appellate Division Second Department.

Nov. 9, 1981.

As Amended Jan. 29, 1982.

Ingerman, Smith, Greenberg & Gross, Northport (Jonathan Heidelberger, Northport, of counsel), for appellant.

Solomon M. Lowenbraun, New York City (Stuart L. Davis, New York City, of counsel), for respondent Statewide Vending Corp. and for third-party defendants-respondents, Al Hirschberger and Jessie Hirschberger.

Before MANGANO, J. P., and GIBBONS, COHALAN, and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In consolidated actions to recover damages for breach of contract, plaintiff appeals from so much of an order of the Supreme Court, Suffolk County, dated December 18, 1980, as granted defendants' motion in Action No. 1 for summary judgment, dismissing plaintiff's complaint on the ground a condition precedent was not performed.

Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, motion for summary judgment is denied, plaintiff's complaint in Action No. 1 dated March 14, 1977 is reinstated and plaintiff's complaint in Action No. 2 is dismissed.

On June 1, 1976 plaintiff in Action No. 1, Board of Education of Half Hollow Hills Central School District # 5 (school district) issued a "NOTICE TO BIDDERS", which solicited bids from private food service management companies to provide, maintain and operate cafeteria services for the district's school lunch program for the 1976-1977 school year. Defendant Statewide Vending Corp., a/k/a Statewide Industrial Catering of Dix Hills, Inc. (Statewide) submitted a bid, No. 799, meeting the bid specifications and guaranteeing the largest monetary return to the school district. On August 23, 1976 the school district resolved to award the contract to Statewide. On August 24, 1976 the "BID AWARD NOTICE" sent to Statewide and the unsuccessful bidders contained the following condition, which reads in pertinent part: "Award contingent upon approval of contract by New York State Education Department". The parties commenced performance under the contract prior to approval by the State Education Department of an executed contract in a form prescribed by the Department Commissioner. Both parties performed the contract for the months of September and October, 1976. However, on October 29, 1976, Statewide discontinued service, informing the school district that since there was an extensive loss being incurred by continued operation as a result of a contract increasing the wages and benefits of picketing cafeteria employees, it was withdrawing from providing the district with any further services. In December, 1976, the State Education Department provided State Aid reimbursement in the amount of $30,728.91 for the months of September and October of 1976.

Subsequently, the school district commenced an action against Statewide to recover damages for breach of contract and an action against International Fidelity Insurance Co. (Statewide's surety) on its performance bond. International Fidelity in turn impleaded the principals of Statewide on their personal obligation to the surety. Statewide commenced an action against the school district in quantum meruit to recover for work, labor and services. The actions were consolidated pursuant to an order of the Supreme Court, Nassau County (SPATT, J.), dated November 9, 1979.

Paragraph 29 of the "General Conditions" document, which conditions were agreed to by the parties, negates any inference that the...