IN RE: DART MECHANICAL CORP. (2008)

Supreme Court, Appellate Division, First Department, New York.

IN RE: DART MECHANICAL CORP., Petitioner–Appellant, v. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS CONTRACT DISPUTE RESOLUTION BOARD, et al., Respondents–Respondents.

Decided: December 09, 2008

TOM, J.P., GONZALEZ, NARDELLI, MOSKOWITZ, RENWICK, JJ.

Tunstead & Schechter, Jericho (Marvin Schechter and Frank P. Ribaudo of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Alan Beckoff of counsel), for respondents.

Order, Supreme Court, New York County (Marcy L. Kahn, J.), entered October 29, 2007, which denied petitioner's application to annul the determination of respondent New York City Office of Administrative Trials and Hearings Contract Dispute Resolution Board rejecting petitioner's claims for additional compensation for the increased cost of supplying certain equipment required by petitioner's contract with respondent New York City Department of Sanitation, and dismissed the petition, unanimously affirmed, without costs.

The petition was properly dismissed where the contract did not include an escalator clause or other provision for additional compensation, and the Board rationally found (see Secco Elec. Corp. v. Kalikow, 13 A.D.3d 252, 787 N.Y.S.2d 260 [2004], lv. denied 5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189 [2005] ) that the Department of Sanitation did not breach either the contract provision or the Procurement Policy Board's rules regarding procurement and substitution of sole source items.

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