IN RE: NEW YORK CONSTRUCTION & RENOVATION (2025)

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the respondent/defendant City of New York Department of Parks and Recreation dated October 30, 2019, which found that the petitioner/plaintiff was in default on its obligations under a certain contract, and action for declaratory relief, the petitioner/plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Bruce M. Balter, J.), dated November 10, 2020.  The order and judgment granted the motion of the respondent/defendant City of New York Department of Parks and Recreation pursuant to CPLR 3211(a) to dismiss the causes of action for a declaratory judgment, denied the petition, and, in effect, dismissed the proceeding/action.

ORDERED that the order and judgment is affirmed, with costs.

In March 2018, the respondent/defendant, City of New York Department of Parks and Recreation (hereinafter the Parks Department), accepted bids for a contract to construct a comfort station in Canarsie Park. The petitioner/plaintiff, New York Construction & Renovation, Inc. (hereinafter NYCR), was the successful bidder, and, on July 11, 2018, NYCR entered into a construction contract with the Parks Department.  Pursuant to the terms of the contract, on November 2, 2018, the Parks Department directed NYCR to start work on March 1, 2019, and to complete the project by September 29, 2020.  On February 27, 2019, the Parks Department, in response to NYCR's request for a four-month extension of the start date, agreed to postpone the start date by one month until April 1, 2019.  NYCR, however, did not start work on the project by that date.  On September 27, 2019, pursuant to article 48.2 of the contract, the Parks Department issued a notice to NYCR to “show good cause why NYCR should not be held in default of the [c]ontract” (hereinafter the September 2019 notice).  Following a meeting held in relation to the September 2019 notice, the Parks Department issued a determination dated October 30, 2019, which found that NYCR was in default of its obligations under the contract.

NYCR subsequently commenced this hybrid proceeding pursuant to CPLR article 78 to review the Parks Department's determination and action for declaratory relief.  The Parks Department moved pursuant to CPLR 3211(a) to dismiss the causes of action for a declaratory judgment.  By order and judgment dated November 10, 2020, the Supreme Court granted the Parks Department's motion, denied the petition, and, in effect, dismissed the proceeding/action.  NYCR appeals.

Initially, the Supreme Court properly granted the Parks Department's motion pursuant to CPLR 3211(a) to dismiss the causes of action for a declaratory judgment, since article 49.2 of the contract limited NYCR's remedy following a finding of default to judicial review in a proceeding pursuant to CPLR article 78 (see Abiele Contr. v. New York City School Constr. Auth., 91 N.Y.2d 1, 5–6, 8–9, 666 N.Y.S.2d 970, 689 N.E.2d 864;  Sound Beyond Elec. Corp. v. City of New York, 100 A.D.3d 412, 413, 952 N.Y.S.2d 887;  Excel Group, Inc. v. New York City Tr. Auth., 28 A.D.3d 708, 711, 814 N.Y.S.2d 220).

The standard of judicial review herein is whether the Parks Department's determination that NYCR was in default of its obligations under the contract was made in violation of lawful procedure, was arbitrary and capricious, was affected by an error of law, or lacked a rational basis (see CPLR 7803[3];  Matter of Pile Found. Constr. Co., Inc. v. New York City Dept. of Envtl. Protection, 84 A.D.3d 963, 963–964, 921 N.Y.S.2d 903;  Matter of Clover Constr. Consultants, Inc. v. New York City Hous. Auth., 44 A.D.3d 654, 655, 841 N.Y.S.2d 884).  Contrary to NYCR's contention, the Parks Department's determination that NYCR was in default of it obligations under the contract based, inter alia, on NYCR's failure to submit an acceptable progress schedule, provide all of the necessary submittals, and timely obtain a necessary permit from the New York City Department of Buildings (hereinafter DOB), which delayed the work and the completion of the project, was rational and not arbitrary and capricious (see 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, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321;  Matter of Pile Found. Constr. Co., Inc. v. New York City Dept. of Envtl. Protection, 84 A.D.3d at 964, 921 N.Y.S.2d 903;  Matter of Clover Constr. Consultants, Inc. v. New York City Hous. Auth., 44 A.D.3d at 655, 841 N.Y.S.2d 884).  “Although [NYCR] alleged that the work delays were outside of its control, [the Parks Department] rationally rejected [its] explanation for the delays” (Matter of Murgrose Constr., Inc. v. City of N.Y. Dept. of Transp., 180 A.D.3d 625, 625–626, 121 N.Y.S.3d 227).

Moreover, NYCR's contention that a moratorium on gas line applications by National Grid prevented it from obtaining the necessary DOB permit and timely commencing the work was not raised at the meeting held in relation to the September 2019 notice and, consequently, may not be considered by this Court (see Matter of Margulies v. Town of Ramapo, 226 A.D.3d 783, 785, 209 N.Y.S.3d 466;  Matter of Kaufman v. Incorporated Vil. of Kings Point, 52 A.D.3d 604, 607, 860 N.Y.S.2d 573).

NYCR's additional contention that the Parks Department's determination was made in violation of lawful procedure (see CPLR 7803[3]) because NYCR was deprived of due process is without merit (see Matter of Framan Mech. Inc. v. City of New York [Dept. of Envtl. Protection], 188 A.D.3d 455, 131 N.Y.S.3d 878;  Matter of Murgrose Constr., Inc. v. City of N.Y. Dept. of Transp., 180 A.D.3d at 625, 121 N.Y.S.3d 227;  Matter of Pile Found. Constr. Co., Inc. v. New York City Dept. of Envtl. Protection, 26 Misc.3d 1231[A], 2010 N.Y. Slip Op. 50339[U], 2010 WL 778765 [Sup. Ct., Kings County], affd 84 A.D.3d at 964, 921 N.Y.S.2d 903).  NYCR also failed to establish that the Parks Department's determination was affected by an error of law (see Matter of Garvey v. Town of Clarkstown, 186 A.D.3d 1367, 1367, 129 N.Y.S.3d 12;  cf.  IM Long Is., LLC v. Jefferson, 177 A.D.3d 682, 683, 109 N.Y.S.3d 889).

Contrary to NYCR's contention, “there are no factual issues requiring a trial pursuant to CPLR 7804(h)” (Matter of Clover Constr. Consultants, Inc. v. New York City Hous. Auth., 44 A.D.3d at 655, 841 N.Y.S.2d 884;  see Matter of Garvey v. Town of Clarkstown, 186 A.D.3d at 1368, 129 N.Y.S.3d 12).

Accordingly, the Supreme Court properly granted the Parks Department's motion pursuant to CPLR 3211(a) to dismiss the causes of action for a declaratory judgment, denied the petition, and, in effect, dismissed the proceeding/action.

CONNOLLY, J.P., FORD, VOUTSINAS and VENTURA, JJ., concur.