Litemore Elec. Co. v. Kawecki

• Decision Date: 04 December 1965
• Citation: 265 N.Y.S.2d 29,48 Misc.2d 347
• Parties: LITEMORE ELECTRIC COMPANY, Inc., Petitioner, v. Charles S. KAWECKI, as State Architect, State of New York, and J. Burch McMorran, as Superintendent of Public Works, Respondents.
• Court: New York Supreme Court

Page 29

265 N.Y.S.2d 29

48 Misc.2d 347

LITEMORE ELECTRIC COMPANY, Inc., Petitioner, v. Charles S. KAWECKI, as State Architect, State of New York, and J. Burch McMorran, as Superintendent of Public

Works, Respondents.

Supreme Court, Special Term, Albany County.

Dec. 4, 1965.

Louis J. Lefkowitz, Atty. Gen., of New York (Douglas S. Dales, Jr., Asst. Atty. Gen., Albany, of counsel), for respondents, in support of motion.

Daniel W. Tractenberg, New York City, for petitioner, in opposition.

LAWRENCE H. COOKE, Justice.

Respondents move 'for an order pursuant to CPLR § 7804(f) dismissing the petition upon the ground that it is insufficient in law in that the petition does not state facts sufficient to entitle petitioner to the relief lief sought.'

The petition alleges, in substance and among other things, that respondents offered for bids a certain project, that petitioner submitted a bid and was the 'low bidder' thereon, that one of respondents notified petitioner that it was 'cancelling the bidding' and would submit the project for rebidding, that petitioner has duly performed all the terms and conditions of the proposal in order to obtain the contract on its part to be performed and that respondents have failed and refused to perform all the terms and conditions of the contract on their part to be performed and have refused to enter into a contract with petitioner although petitioner was the low bidder. One affidavit submitted with the petition recites that the action of respondents was entirely unwarranted and another submitted at the time of argument states that the rejection of petitioner's bid was 'arbitrary, capricious and an abuse of discretion.'

The sole question before the court, at this juncture, is whether the petition sets forth a good cause of action (Matter of Ciminera v. Sahm, 4 N.Y.2d 400, 402, 176 N.Y.S.2d 257, 258, 151 N.E.2d 832, 833) but affidavits may support the petition and may be considered in favor of its allegations (Mtr. of Honolulu v. 5th Av. Coach Lines, 32 Misc.2d 889, 890, 225 N.Y.S.2d 279, 280; Martin Epstein Co. v. City of New York, 31 Misc.2d 759, 100 N.Y.S.2d 326, 329; Yonkers' Bus v. Maltbie, Sup., 23 N.Y.S.2d 87, 90, affd. 260 App.Div. 893, 23 N.Y.S.2d 91; 22 Carmody-Wait, Cyclopedia of New York Practice, p. 488). Although the express statement in former Civil Practice Act section 1288 that the petition 'may be accompanied by affidavits and other written proof' does not appear in CPLR 7804(d), it is clear that no change was intended in this regard (8 Weinstein-Korn-Miller, New York Civil Practice, par. 7804.06).

It appears that respondent Superintendent had the power to reject any or all proposals in regard to the project in question if he deemed the best interests of the State would be promoted thereby (Public Buildings Law, § 8, subd. 4) unless his action was arbitrary, capricious or unreasonable (Matter of Bielec Wrecking & Lumber Co. v. McMorran, 21 A.D.2d 949, 950, 251 N.Y.S.2d 331, 332; Mtr. of Kayfield Const. Corp. v. Morris, 15 A.D.2d 373, 225 N.Y.S.2d 507; Matter of Caruci v. Dulan, 41 Misc.2d 859, 862, 246 N.Y.S.2d 727, 730; Arensmeyer, Warnock, Zarndt, Inc. v. Wray, 118 Misc. 619, 620, 194 N.Y.S. 398, 399).

According to petitioner the usual favorable rules of construction (see CPLR, §§ 104, 3013, 3026; Clevenger v. Baker Voorhis & Co., 8 N.Y.2d 187, 188, 203 N.Y.S.2d 812, 813, 168 N.E.2d 643, 644; Dulberg v. Mock, 1 N.Y.2d 54, 56, 150 N.Y.S.2d 180, 133 N.E.2d 695, 696; Matter of Policemen's Ben. Assn. v. Bd. of Trustees of Vill. of Croton, 21 A.D.2d 693, 695, 250 N.Y.S.2d 523, 525; Foley v. D'Agostino, 21 A.D.2d 60, 65, 248 N.Y.S.2d 121, 125; Matter of Hassett v. Barnes, 11 A.D.2d 1089, 206 N.Y.S.2d 606; Grimm v. City of Buffalo, 8 A.D.2d 689, 184 N.Y.S.2d 868; People ex rel. Brooklyn Union Gas Co. v. Miller, 253 App.Div. 162, 164-165, 1 N.Y.S.2d 246, 248; Mtr. of Glen Truck Sales & Serv. v. Sirignano, 31 Misc.2d 1027, 1028, 220 N.Y.S.2d 939, 941; 3 Weinstein-Korn-Miller, New...