Ludlow's Sand & Gravel Co., Inc. v. LaBella

• Decision Date: 07 October 1974
• Citation: 364 N.Y.S.2d 669,80 Misc.2d 997
• Parties: Application of LUDLOW'S SAND & GRAVEL CO., INC., Petitioner, for a Writ of Mandamus v. Felix LaBELLA et al., Respondents.
• Court: New York Supreme Court

Page 669

364 N.Y.S.2d 669

80 Misc.2d 997

Application of LUDLOW'S SAND & GRAVEL CO., INC., Petitioner for a Writ of Mandamus v. Felix LaBELLA et al., Respondents.

Supreme Court, Oneida County.

Oct. 7, 1974.

Walter G. Pratt, Utica, for petitioner.

Davies Johnson, Utica, for respondents.

MEMORANDUM DECISION

EDWARD F. McLAUGHLIN, Justice.

Petitioner moves at Special Term for an Order pursuant to CPLR Article 78 directing respondent to interpret or change its Highway specifications so as to approve petitioner's 'Item 4' gravel for use in place and stead of commercially produced crushed stone mixture as provided in respondent's specifications as Amendment November 20, 1968.

The within action is brought in the nature of Mandamus to compel respondent to either interpret its specification to include petitioner's product which is 'Item 4' gravel or to change the specification so as to specifically include 'Item 4' gravel. Petitioner contends that the New York State specifications to which respondent's specifications refer include both commercially produced crushed stone as well as 'Item 4' gravel. Petitioner further contends that it can produce expert witnesses to testify that 'Item 4' gravel is sufficient for a base in town roads and requests a hearing pursuant to Article 78.

Respondent, by sworn affidavit of its engineer, contends that the local specifications are not subject to interpretation with a view of enlarging their requirements and further specify commercially produced crushed stone. Respondent admits that the State specifications include 'Item 4' gravel as well as crushed stone, but contends that that is not controlling insofar as the Town is concerned.

After thoroughly reviewing the pleadings and hearing oral arguments of counsel, the Court is convinced the petitioner is not entitled to an Order compelling the respondent to interpret or change its specifications, and thus denies the relief sought herein.

The Court finds that the compilation and writing of specifications for highways is a legislative act which may not be reviewed in an Article 78 proceeding. Miles v. Town Board of Rotterdam, 68 Misc.2d 353, 326 N.Y.S.2d 851 (Sup.Ct. Schenectady Co. 1971). The Court further finds that an Order compelling the respondent to contract for 'Item 4' gravel would be an interference with contractual rights which also may not be resolved in an Article 78 proceeding. Corbeau Construction Corp. v. Board of Education, Union Free School District No....