Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp.

Kane, J. (dissenting).

Plaintiff’s complaint asserts four causes of action against FDC: three are purely contractual in nature and relate to the completed Lincoln Medical and Mental Health Center project, while the fourth maintains that FDC has wrongfully disqualified plaintiff from receiving consideration as a bidder on subsequent projects. The preliminary *1023injunction sought by plaintiff arises from this latter claim which, as the majority recognizes, is essentially one for article 78 review of the determination not to entertain future bids submitted by it. Issue has not yet been joined and the propriety of the limited relief granted herein must be ascertained from the moving and opposing papers. The difficulty with the instant record is that in focusing their attention on various aspects of the contractual disagreement, the parties have largely obscured the pertinent legal questions involved in the article 78 proceeding. Although the exact purpose of the "hearing” conducted by FDC is not clear, it was apparently restricted to an evaluation of plaintiff’s performance on the Lincoln roofing project since it concluded with a letter from FDC, saying that "the Corporation hereby terminates your employment under your contract for cause as stated.” Significantly, there is no indication that the "hearing” could lead to a blanket disqualification on future projects, nor does the quoted letter purport to impose such a sanction. Thus, as I view it, the real issue on this appeal has little to do with whether substantial evidence supports the finding of a default on the Lincoln contract for, even if it does, it would not necessarily follow that FDC is justified in excluding plaintiff from participation in later projects. It is true that FDC has broad discretion to reject bids from inexperienced, irresponsible or unqualified enterprises (L 1968, ch 359, § 1; Health and Mental Hygiene Facilities Improvment Act, § 8, subd 2, par d, as amd by L 1973, ch 392, § 33), but that power cannot be exercised in an arbitrary fashion. The complaint and moving papers allege an automatic exclusion of indefinite duration which, if established, would plainly constitute such an abuse, for logic alone dictates that not all public works are the same and that the reason for a default on one might bear no relationship to the satisfactory completion of another. Plaintiff has referred to an instance where it was barred from competition for a subsequent award while, as noted, FDC has not yet answered the complaint. At this preliminary stage, therefore, the probability of success on the merits seems to favor plaintiff. As for the equities of the matter, the present injunction will not upset FDC’s operations; it is narrowly drawn and merely prevents FDC from summarily rejecting any bids plaintiff might choose to submit during the pendency of this litigation. The order should be affirmed.