Opinion
October 8, 1998
Appeal from the Supreme Court, New York County (William Leibovitz, J.).
No issue of fact exists as to whether DOE withdrew the contract from registration within the 30-day period the Comptroller had to object thereto ( see, Matter of DeFoe Corp. v. New York City Dept. of Transp., 87 N.Y.2d 754, 760-761). The Comptroller's August 8, 1996 letter to DOE, as explained in respondents' sur-reply verified by the letter's author, together with the Comptroller's date stamp and the Central Imaging facility receipt showing that the contract was filed with Comptroller on July 9, 1996, provide sufficient proof that the contract was in fact filed on July 9, 1996, making the withdrawal confirmed in the August 8, 1996 letter timely. Nor is there merit to petitioner's argument that its right to the contract had vested by operation of law because of DOE's acceptance of petitioner's performance between the Comptroller's return of the contract to DOE on August 8, 1996 and DOE's notice to petitioner that the contract had not been registered on October 24, 1996. By the express terms of the contract, as well as New York City Charter § 328 (a) ( see, supra), the contract was not effective until registered by the Comptroller. Contracts entered into in violation of a statutorily prescribed means may not be enforced against a public entity, even where the public entity has in fact benefitted from the contract ( Matter of Dentom Transp. v. New York City Human Resources Admin., 155 Misc.2d 31, 38, citing Seif v. City of Long Beach, 286 N.Y. 382, 387). Also without merit is petitioner's claim that the decision to withdraw and not to resubmit was arbitrary and capricious. That decision was properly based on considerations rationally bearing upon petitioner's skill, integrity and ability to perform, namely, the Comptroller's investigation of petitioner for possible misappropriation of public funds awarded under a Head Start contract with another City agency, and petitioner's suspension by that other City agency from its Head Start program for Health Code violations, and should not be viewed otherwise simply because criminal charges were not pending ( cf., Matter of DeFoe v. New York City Dept. of Transp., supra, at 763). We have considered petitioner's other arguments and find them to be unavailing.
Concur — Ellerin, J. P., Williams, Mazzarelli and Andrias, JJ.