Opinion
2013-06983, Index No. 8882/13.
04-08-2015
In the Matter of NATIONAL COMPRESSOR EXCHANGE, INC., appellant, v. NEW YORK CITY TRANSIT AUTHORITY, respondent.
Jonathan Silver, Kew Gardens, N.Y., for appellant. Martin B. Schnabel, Brooklyn, N.Y. (Thomas P. Hanley, Jr., and Diane M. Nardi of counsel), for respondent.
Jonathan Silver, Kew Gardens, N.Y., for appellant.
Martin B. Schnabel, Brooklyn, N.Y. (Thomas P. Hanley, Jr., and Diane M. Nardi of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.
Opinion In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Transit Authority dated April 10, 2013, which deemed the petitioner to be a “non-responsible” bidder for the subject contract and ineligible to be awarded the subject contract, the petitioner appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County (F. Rivera, J.), dated June 4, 2013, as denied the petition and dismissed the proceeding.
ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.
Our review of the subject determination of the respondent, the New York City Transit Authority (hereinafter the NYCTA), which concluded that the petitioner was a nonresponsible bidder for the subject contract (see Public Authorities Law § 1209[1] ), is limited to “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803[3] ; see Matter of DeFoe Corp. v. New York City Dept. of Transp., 87 N.Y.2d 754, 760, 642 N.Y.S.2d 588, 665 N.E.2d 158 ; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 ). We may disturb the subject determination only if no rational basis exists for its conclusion (see Matter of Conduit & Found. Corp. v. Metropolitan Transp. Auth., 66 N.Y.2d 144, 149, 495 N.Y.S.2d 340, 485 N.E.2d 1005 ; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d at 230–231, 356 N.Y.S.2d 833, 313 N.E.2d 321 ).
Here, there was a rational basis for the NYCTA's determination that the petitioner was a nonresponsible bidder for the subject contract, a conclusion that was based on, among other things, undisputed facts, including the petitioner's 2 ¾–year federal debarment (exclusion from federal contracts) ending February 17, 2012, the 2008 federal criminal conviction of the petitioner's vice president of sales, Robert Brosnan, for providing fraudulent documents to the United States Department of Defense, the petitioner's admission, in a deferred prosecution agreement it entered into with the United States Department of Justice, that, through Brosnan, it had knowingly provided nonconforming military parts and equipment to the United States Department of Defense, and the petitioner's rehiring of Brosnan as vice president of sales after he served his prison sentence. The determination that the petitioner falsely indicated, in its bid papers, that none of its officers or managerial employees had been convicted of a crime involving obtaining or attempting to obtain or performing a public transaction or contract for a public transaction within the past 10 years, also is supported by a rational basis.
The petitioner's remaining contentions are without merit.
Accordingly, we affirm the Supreme Court's denial of the petition and dismissal of the proceeding (see Matter of Daxor Corp. v. State of N.Y. Dept. of Health, 90 N.Y.2d 89, 101, 659 N.Y.S.2d 189, 681 N.E.2d 356 ; Matter of Toussie v. County of Suffolk, 26 A.D.3d 506, 507, 809 N.Y.S.2d 573 ; Matter of Quadrozzi Concrete Corp. v. Miele, 5 A.D.3d 686, 687, 774 N.Y.S.2d 755 ; Matter of Tully Constr. Co. v. Hevesi, 214 A.D.2d 465, 625 N.Y.S.2d 531 ; Matter of A. Grgas Contr. Co. v. Mercklowitz, 168 A.D.2d 678, 679, 563 N.Y.S.2d 505 ).