Opinion
2002-09877.
Decided March 22, 2004.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent New York City Department of Environmental Protection, dated April 24, 2001, precluding the petitioner from supplying concrete to a contractor on a particular project, the petitioner appeals from a judgment of the Supreme Court, Queens County (O'Donoghue, J.), dated August 13, 2002, which denied the petition and dismissed the proceeding.
Raice Paykin Krieg, LLP, New York, N.Y. (Pinchus D. Raice and David C. Thomas of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner, Ronald E. Sternberg, and Elaine Windholz of counsel), for respondents.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The petitioner, which sought to act as a concrete supplier to a contractor on a pollution control project, contends that the challenged determination was reached in contravention of 9 RCNY § 2-08. However, this regulation applies to contractors, not suppliers ( see Matter of C/S Window Installers v. New York City Dept. of Design Constr., 304 A.D.2d 380). Moreover, the determination precluding the petitioner from acting as a concrete supplier for the project based upon the criminal conviction of its principal and litigation between the City of New York and the petitioner and its affiliates which resulted in judgments in favor of the City was not arbitrary and capricious ( see Abco Bus Co. v. Macchiarola, 52 N.Y.2d 938, cert denied 454 U.S. 822; Romano Enters. of N.Y. v. New York City Dept. of Transp., 254 A.D.2d 233; Matter of Tully Constr. Co. v. Hevesi, 214 A.D.2d 465; Matter of Perna Contr. Corp. v. City of N.Y., Off. of Mayor Off. of Contracts, 191 A.D.2d 232, 233; Matter of A. Grgas Contr. Co. v. Mercklowitz, 168 A.D.2d 678, 679).
The petitioner's contention that the challenged determination was pursuant to a de facto debarment based upon the criminal conviction of its principal in 1992 is not supported by the record, since the determination was based upon the conduct of the petitioner, its principal, and related corporations occurring over a period of nearly nine years from 1992 up to and including the date of the determination.
The petitioner's remaining contentions are without merit.
RITTER, J.P., GOLDSTEIN, CRANE and RIVERA, JJ., concur.