Opinion
March 26, 1962
In a proceeding under article 78 of the Civil Practice Act, to review and annul a resolution of the Board of Education of the City of New York, dated June 5, 1961, disqualifying petitioner, a contractor engaged in the installation of heating and ventilating plants in buildings, from bidding on the board's contracts for school work, the board appeals from so much of an order of the Supreme Court, Kings County, entered October 6, 1961 upon the decision of the court, as, in denying the petition, granted petitioner leave to renew the proceeding if the board should thereafter fail to accord petitioner a hearing upon its charges against petitioner which constitute the basis for its action in disqualifying petitioner. Order modified on the law by striking out from the decretal paragraph all the provisions relating to the grant to petitioner of leave to renew the proceeding in the event the board should thereafter fail to accord it a hearing upon the board's charges which constitute the basis for the board's action in its disqualification. As so modified the order, insofar as it denied the application and dismissed the proceeding, is affirmed, without costs. The board was not required to accord petitioner a hearing or to conduct an independent investigation as to the matters charged against petitioner in the subject report of the New York City Department of Investigation and in the testimony of a certain employee of the Board of Education given before said Department of Investigation ( Matter of Caristo Constr. Corp. v. Rubin, 15 A.D.2d 561, affd. 10 N.Y.2d 538). In our opinion, there was a substantial factual basis for the making of the subject resolution (cf. Matter of Caristo Constr. Corp. v. Rubin, supra; Matter of Kayfield Constr. Corp. v. Morris, 15 A.D.2d 373), hence the court may not substitute its judgment for that of the Board of Education ( Matter of Diocese of Rochester v. Planning Bd., 1 N.Y.2d 508, 520). No issues of fact were considered. Beldock, P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.