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In re Kiska Con

Appellate Division of the Supreme Court of New York, First Department
Jan 6, 2004
3 A.D.3d 321 (N.Y. App. Div. 2004)

Opinion

2639.

Decided January 6, 2004.

Order and judgment (one paper), Supreme Court, New York County (Faviola Soto, J.), entered November 12, 2002, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 to set aside a determination of the Triborough Bridge and Tunnel Authority (TBTA) arbiter, dated May 6, 2002, respecting the parties' obligations pursuant to a bridge construction contract, unanimously affirmed, without costs.

Tony Berman, for Petitioner-Appellant.

M. Margaret Terry, for Respondents-Respondents.

Before: Mazzarelli, J.P., Andrias, Saxe, Williams, Friedman, JJ.


Pursuant to the governing contract, a determination by the TBTA arbiter respecting the parties' obligations thereunder may only be judicially disturbed if it is arbitrary and capricious or without rational basis ( see NAB Constr. v. Metro. Tr. Auth., 180 A.D.2d 436). Inasmuch as the arbiter's determination is rationally supported by the contract terms, the petition to set it aside was properly denied. Even if our scope of review were not so limited, petitioner's reliance upon evidence of industry custom and practice would be unavailing to excuse it from its clear contractual undertaking to clean and shop prime the subject bolts prior to installation ( see Golub Assocs. Inc. v. Lincolnshire Mgt., Inc., 1 A.D.2d 237, 2003 N.Y. App. Div Lexis 12192; Hart v. Cort, 165 A.D. 583).

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

In re Kiska Con

Appellate Division of the Supreme Court of New York, First Department
Jan 6, 2004
3 A.D.3d 321 (N.Y. App. Div. 2004)
Case details for

In re Kiska Con

Case Details

Full title:IN RE KiSKA CONSTRUCTION CORP.-USA, Petitioner-Appellant, v. TRIBOROUGH…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 6, 2004

Citations

3 A.D.3d 321 (N.Y. App. Div. 2004)
769 N.Y.S.2d 882