Opinion
194 TP 17–01292
03-23-2018
SCHRÖDER, JOSEPH & ASSOCIATES, LLP, BUFFALO (LINDA H. JOSEPH OF COUNSEL), FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENT.
SCHRÖDER, JOSEPH & ASSOCIATES, LLP, BUFFALO (LINDA H. JOSEPH OF COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination denying its 2014 application for certification as a woman-owned business enterprise (see generally 5 NYCRR 144.2 ). Petitioner contends that the determination that it failed to meet certain criteria used to determine whether a business is eligible to be certified as a woman-owned business enterprise was arbitrary and capricious because respondent failed to adhere to its determination in 2010 that granted petitioner such status, and failed to provide a sufficient explanation for failing to adhere to the prior determination. "Absent such an explanation, failure to conform to agency precedent will ... require reversal on the law as arbitrary, even though there is in the record substantial evidence to support the determination made" ( Matter of Charles A. Field Delivery Serv. [Roberts] , 66 N.Y.2d 516, 520, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985] ). Here, however, petitioner did not meet its initial burden of establishing that "the same information was before respondent[ ] on both occasions" with respect to the eligibility criteria on which respondent based its determination ( Matter of Northeastern Stud Welding Corp. v. Webster , 211 A.D.2d 889, 890, 621 N.Y.S.2d 170 [3d Dept. 1995] ). Thus, petitioner has not established that "respondent[ ] failed to follow precedent when confronted with ‘essentially the same facts' " ( id. , quoting Charles A. Field Delivery Serv. , 66 N.Y.2d at 517, 498 N.Y.S.2d 111, 488 N.E.2d 1223 ).
Contrary to petitioner's further contention, viewing the record as a whole (see Matter of C.W. Brown Inc. v. Canton , 216 A.D.2d 841, 842, 628 N.Y.S.2d 851 [3d Dept. 1995] ), we conclude that respondent's determination is supported by substantial evidence inasmuch as petitioner failed to establish its eligibility with respect to ownership and control criteria set forth in 5 NYCRR 144.2(a)(1), (b)(1) and (c)(2) (see id. at 842–843, 628 N.Y.S.2d 851 ; Northeastern Stud Welding Corp. , 211 A.D.2d at 890–891, 621 N.Y.S.2d 170 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.