I do not think the record before us is sufficient to justify the sweeping action taken by the majority, to wit, the dismissal of a claim for $148,736, and the granting of a belated counterclaim by the city in the sum of $690,973, all without a hearing of any kind.
As I see it, the majority opinion rests on several assumptions, for which I find no factual basis in the record, and no precedent to sustain: a) the majority finds that unlike the generator in the Gerzof case, which was needed, we may assume, even without a hearing, there is no issue of fact as to the necessity of the cleaning work done on the Jerome Park Reservoir; b) the majority views the criminal conduct of the plaintiff as a complete roadblock barring both recovery for the sums unpaid and justifying a summary disgorgement of sums already paid by the city, even though part of the sums paid by the city was paid as far back as April 13, 1967; and c) the majority concludes that the°principles of the Gerzof case do not apply, even though in that case the appellate courts had the benefit of a trial hearing. Here, we have none.
Dealing with these thoughts in seriatim, first, it is sufficient to observe that summary judgment cannot be predicated on speculation. To the contrary, and I find nothing in the record to indicate otherwise, the work done herein was necessary, it was of an emergency character, eliminating the need for competitive bidding, it was fully performed, it was fully worth what has been paid, it was a cost-plus job, the plaintiff supplying both the labor and the equipment, all performed under the supervision of the city’s own engineers, and there was no loss to the city. And in any event, the plaintiff should be given an opportunity to develop these factual questions by proof, and not be summarily precluded from bringing itself within the framework of the Gerzof case. Special Term phrased it well: ‘ ‘ A remedy was fashioned in that decision based upon the unique circumstances present. It is not for this Court, on a motion such as this, to hold that such a remedy may not also be fashioned herein on trial. At the least, Gersof furnishes compelling authority for holding plaintiff not completely be foreclosed from recovery or retaining the amount paid by it ”.
As I view it, a plenary inquiry may permit a court to fashion a remedy based, e.g., on the minimum value of the work done, less any profits, direct or indirect, less even salaries, with an eye to ‘‘ the special safeguards which the Legislature has pro*473vided for the public treasury ’ ’. Such a recovery, in my view, is permissible under Jered Contr. Corp. v. New York City Tr. Auth. (22 N Y 2d 187). As was said by Chief Judge Fuld in Gersof (p. 305): “ There should, logically, be no difference in ultimate consequence between the case where a vendor has been paid under an illegal contract and the one in which payment has not yet been made. ’ ’ Thus, I would not, at this stage, dismiss the complaint for the balance due, but treat it as intertwined and interlocked with the counterclaim, and only after resolving all the issues, after a trial, determine if the Gerzof case applies, particularly as in this field of the law, it is apparent we are dealing with yet evolving concepts. As a result of the Gerzof case, an uncritical and a mechanistic application of the decision in Jered Contr. Corp. v. New York City Tr. Auth. (supra), might easily result in unconscionable injustices; that is why it is more prudent to apply the Gersof principles on an ad hoc basis, after a hearing. Delay in judgment is warranted so a court may explore the permissible equities. I doubt very much if a kickback of $10 would be a roadblock to remuneration on a multi-million dollar contract, assuming the work was needed, was well done, the price was fair, and exacting the forfeiture would destroy the contractor and throw his employees out of work, or impair innocent stockholders in a publicly held corporation.
■ As to whether or not the conviction of plaintiff’s officer per se pollutes the contract, it is my understanding that this alone does not preclude plaintiff from contesting the truth of the charges at a hearing. (Schindler v. Royal Ins. Co., 258 N. Y. 310; Uzenski v. Fitzsimmons, 10 A D 2d 890.) And for that matter, I would think he might even raise the point that one of the leading witnesses against him has since come under a cloud, an item now within the public domain.
Considering the conclusion of the majority that “the only characteristic we find left in common with Gerzof is the amount of the forfeiture ’ ’, I agree to the extent that there is a remarkable verisimilitude. Chief Judge Fuld noted ‘ ‘ the sheer magnitude of the forfeiture ”. But the majority herein have exacted even a greater forfeiture, without a hearing. And I find a further similarity in that both cases involved a purported circumventing of the statutory competitive bidding requirements for public work (General Municipal Law, § 103). Actually, the malefactors in Gerzof were more likely to despoil the public treasury as the specifications were “ so slanted as to make impossible a bid on the second contract by any other manufacturer ” (p. 303); and “there was such ‘ unlawful manipu*474lation ’ in preparing and submitting the specifications as to render the contract illegal (16 N Y 2d, at p. 209)” (p. 303). In the instant case, the work was performed on a cost-plus basis, under the watchful eyes of the city’s engineers, and the city never claimed it did not get its money’s worth.
As for the disrepute of the characters involved, in Gerzof .and in the instant case, dishonors are fairly even. The plaintiff herein may be a culprit, but the protagonists in the Gerzof case were no white-robed saints. Of them, the Court of Appeals said: “We conclude, nevertheless, though the patently illegal conduct of the defendants entitles them to little consideration.” (p. 305).
Lastly, I point out that the city’s effort to obtain a repayment of nearly $700,000 smacks of laches. Perhaps satisfaction with the work performed dulled its sense of vigilance, for although the first payment of $100,000 was made on April 13, 1967, and the work was accepted as completed on ¡December 1, 1967, the city never asked for a return of its money until it filed a counterclaim in the instant suit on October 2, 1969. I believe there is propriety in the question: Suppose the plaintiff had not sued?
Accordingly, I would affirm the learned Justice at Special Term.
Markewich and Kupferman, JJ., concur with Murphy, J.; McGivern, J. P., dissents in an opinion in which Tilzer, J., concurs.
Order, Supreme Court, New York County, entered on September 10, 1971, modified, on the law, plaintiff’s cause of action for recovery of the unpaid balance allegedly due on the Jerome Park Reservoir contract dismissed and judgment entered in favor of the City of New York on its counterclaim for the sum of $689,503.47; and otherwise affirmed. Appellant shall recover of respondent $50 costs and disbursements of this appeal.