Opinion
INDEX NO. 450410/2018
01-17-2019
ISLANDER'S KIDS, INC. Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
NYSCEF DOC. NO. 28 PRESENT: HON. ALEXANDER M. TISCH Justice MOTION DATE 10/25/2018 MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER).
Upon the foregoing documents, it is ORDERED and ADJUDGED that the petition is denied and dismissed.
"In reviewing an administrative agency determination, courts must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious" (Peckham v Calogero, 12 NY3d 424, 431 [2009], quoting Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002] [alteration omitted]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).
The Court finds that the respondent's decision to deny petitioner a UPK contract was rational. More specifically, it is rational and reasonable to deny a UPK contract to a vendor who lacks integrity, has a record of unsatisfactory performance, and a history of repeated safety violations. It is these types of factors that are determinative of the DOE's decision to award DOE contracts per the Procurement Policy and Procedures (see Dkt # 24 [PPP] § 2-05). The inferences to be drawn from the evidence submitted provides more than enough reasonable basis to deny this petition and uphold the respondent's decision (see generally Matter of Kayfield Constr. Corp. v Morris, 15 AD2d 373, 378 [1st Dept 1962]).
Petitioner claims that respondent's decision to deny the instant proposal contradicts its decision to permit petitioner to operate as a part-time vendor (see dkt # 5, ¶¶ 23, 35, 43; dkt # 26, ¶¶ 3, 44). While this could arguably be considered arbitrary, petitioner failed to indicate how, or explain why that would be relevant to the determination being challenged sub judice. For example, there is no argument or proof that the "non-responsible" determination would, or should, be the same for both types of contracts. Therefore petitioner failed to meet its burden of proof in this regard.
This constitutes the decision, order, and judgment of the Court. 1/17/2019
DATE
/s/ _________
ALEXANDER M. TISCH, J.S.C.