Summary
finding that city's termination of contract with plaintiff contractor based on finding of nonresponsibility did not violate due process, even in the absence of an evidentiary hearing, because plaintiff had opportunity to submit written objections
Summary of this case from John Gil Construction, Inc. v. RiversoOpinion
April 25, 1995
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
We find that the IAS Court erred in granting the article 78 petition, where, as here, the record reveals that the determination of the Mayor not to require registration of the subject contract, based upon the objections of the Comptroller, had a rational basis (Matter of Pell v Board of Educ., 34 N.Y.2d 222).
The evidence considered by the Comptroller and the Mayor, including the petitioner's connection, based upon the sworn declaration of an agent of the Federal Bureau of Investigation, to organized crime, the petitioner's alleged violations of New Jersey waste disposal laws, as well as the petitioner's failure to make accurate disclosure on its Vendex forms and failure to comply with the Comptroller's investigative subpoenas with respect to illegal waste disposal, support the determination by the Mayor that the petitioner, having engaged in "corrupt activity" under New York City Charter § 328 (c), is not a responsible bidder entitled to an award of the subject municipal contract (Matter of LaCorte Elec. Constr. Maintenance v County of Rensselaer, 195 A.D.2d 923, lv denied 82 N.Y.2d 660; Abco Bus Co. v Macchiarola, 75 A.D.2d 831, 833, revd on dissenting mem and on other grounds 52 N.Y.2d 938).
Section 328 (c) of the New York City Charter, as added in 1989, and the Minutes of the New York City Charter Revision Commission of May 13, 1989 authorize the Comptroller and the Mayor to reject a bidder, even, as here, after the award of the contract, on the ground that the bidder has failed to manifest the requisite integrity to perform the contract (Matter of Konski Engrs. v Levitt, 69 A.D.2d 940, affd 49 N.Y.2d 850, cert denied 449 U.S. 840; Matter of Dentom Transp. v New York City Human Resources Admin., 155 Misc.2d 31; N Y City Charter § 328 [c]).
Nor did the determination of the Mayor not to require registration of the subject contract deny petitioner due process of law since, in reaching a determination of nonresponsibility, written submissions, rather than an evidentiary hearing, are sufficient to satisfy the necessary requirements of due process (Matter of NANCO Envtl. Servs. v Jorling, 172 A.D.2d 1, 7, lv denied 80 N.Y.2d 754; Matter of Schiavone Constr. Co. v Larocca, 117 A.D.2d 440, 443-444). The availability of an article 78 proceeding at the conclusion of the administrative process also satisfies any due process hearing requirements (Katz v Klehammer, 902 F.2d 204, 207; Campo v New York City Employees' Retirement Sys., 843 F.2d 96, 101, cert denied 488 U.S. 889).
Concur — Sullivan, J.P., Ellerin, Rubin, Williams and Tom, JJ.