ABIELE CONTRACTING, INC., APPELLANT, v. NEW YORK CITY SCHOOL CONSTRUCTION
AUTHORITY, &C., RESPONDENT. (AND A RELATED ACTION.)
91 N.Y.2d 1, 689 N.E.2d 864, 666 N.Y.S.2d 970 (1997).
October 28, 1997
2 No. 163
(97 NY Int. 0177)
Decided October 28, 1997
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Peter L. Agovino, for appellant.
Alan G. Krams, for respondent.
Surety Association of America, amicus curiae.
SMITH, J.:
The primary issue presented on this appeal is whether a municipal
agency's determination of default and subsequent termination of
contract with its general contractor was reviewable only in an article
78 proceeding, and therefore not subject to a plenary action
instituted by the general contractor. We hold that since the municipal
agency had neither statutory nor contractual authority to render a
quasi judicial determination, it was not empowered to issue a final
and binding determination of default reviewable only in an article 78
proceeding. Thus, a plenary action sounding in contract is not
precluded under the circumstances presented here.
I.
On May 17, 1990, plaintiff Abiele Contracting Inc. was awarded a
contract by defendant, the New York City School Construction Authority
(the SCA), to renovate and modernize the facilities at Samuel J.
Tilden High School in Brooklyn for approximately 16.4 million dollars.
Abiele commenced performance under the contract soon thereafter. Over
the course of two years, the renovation of Tilden High School was
plagued with complications including staff turnover, multiple site and
design conflicts, and numerous changes in scheduling and in the scope
of work. The SCA attributed these problems to Abiele's lack of
planning, failure to follow instructions and inadequate staffing.
SNIPPETS:
ABIELE CONTRACTING, INC., APPELLANT, v.
This opinion is uncorrected and subject to revision before publication in the New York
The primary issue presented on this appeal is whether a municipal agency's determination of
We hold that since the municipal agency had neither statutory nor contractual authority to
On May 17, 1990, plaintiff Abiele Contracting Inc. was awarded a contract by defendant, the
The SCA attributed these problems to Abiele's lack of planning, failure to follow
The parties met in early January 1993 to continue negotiations and to review the status of
On October 22, 1993, Abiele commenced a plenary action against the SCA seeking money damages
Supreme Court granted SCA's motion for summary judgment.
We have recognized that "there are circumstances in which the same governmental action may
When the damage allegedly sustained arises from a breach of the contract by a public official
Thus, where the language of the complaint asserts violations of a plaintiff's rights under a
While defendant correctly notes that judicial review of administrative actions is generally
Specifically, the SCA points to Section 9.01 of the standard form construction contract,
This provision states, in relevant part, that if
The SCA also argues that since the Public Authorities Law, and a related regulation, granted
The SCA's reliance on the statute and regulation is misplaced.
Section 1734 of the statute establishes internal procedures for the making and administration
Accordingly, the order of the Appellate Division should be reversed, with costs, and the case
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