| Matter of AAA Carting & Rubbish Removal, Inc. v Town ofSoutheast |
| 2010 NY Slip Op 04991 [74 AD3d 959] |
| June 8, 2010 |
| Appellate Division, Second Department |
| In the Matter of AAA Carting and Rubbish Removal, Inc.,Respondent, v Town of Southeast et al., Respondents, and Sani-Pro Disposal ServicesCorp., Doing Business as Suburban Carting, Appellant. |
—[*1] Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York, N.Y. (John D.D'Ercole and Nicholas Caputo of counsel), for petitioner-respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board ofthe Town of Southeast awarding a refuse hauling contract to Sani-Pro Disposal Services Corp.,doing business as Suburban Carting, the appeal is from (1) a decision of the Supreme Court,Putnam County (O'Rourke, J.), dated December 1, 2009, and (2) a judgment of the same court,also dated December 1, 2009, which, upon the decision, granted the petition, annulled thedetermination, and directed the Town Board of the Town of Southeast to award the contract tothe petitioner.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the judgment is reversed, on the law, the petition is denied, the determination isconfirmed, and the proceeding is dismissed on the merits; and it is further,
Ordered that one bill of costs is awarded to the appellant, payable by thepetitioner-respondent.
The Town Board of the Town of Southeast (hereinafter the Town Board) solicited bids for arefuse disposal contract. The appellant, Sani-Pro Disposal Services Corp., doing business asSuburban Carting (hereinafter Suburban Carting), and the petitioner, AAA Carting and RubbishRemoval, Inc. (hereinafter AAA Carting), both submitted bids. Although AAA Carting's bid waslower, the Town Board awarded the contract to Suburban Carting on the basis that SuburbanCarting could offer superior service and therefore was the lowest responsible bidder. AAACarting commenced this CPLR article 78 proceeding to review that determination. The SupremeCourt granted the petition, annulled the determination, and directed the Town Board to award thecontract to AAA Carting. We reverse.[*2]
A court reviewing a CPLR article 78 petition may notsubstitute its judgment for that of the administrative or municipal body unless that body'sdecision is arbitrary and capricious or its exercise of discretion lacks a rational basis (see Matter of Riverkeeper, Inc. v PlanningBd. of Town of Southeast, 9 NY3d 219, 232 [2007]; Matter of Pell v Board of Educ.of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, WestchesterCounty, 34 NY2d 222, 232 [1974]; Matter of Claudia E. v Ryan, 61 AD3d 865 [2009]; Matter of Jul-Bet Enters., LLC v Town Bd.of Town of Riverhead, 48 AD3d 567 [2008]; Matter of Blanco v Selsky, 45 AD3d 679, 680 [2007]). It is not acourt's role to weigh the desirability of any action or to choose among alternatives (seeMatter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at 232; Matter of El Camino Trucking Corp. vMartinez, 21 AD3d 491 [2005]).
General Municipal Law § 103 (1) provides that, in awarding any contract in excess ofthe sum of $10,000, public entities must award the contract to "the lowest responsible bidder."However, the "lowest responsible bidder" is an " 'elastic' " concept including " 'considerations ofskill, judgment and integrity' " (Matter of Positive Transp. v City of N.Y. Dept. ofTransp., 183 AD2d 660, 661 [1992], quoting Abco Bus Co. v Macchiarola, 75 AD2d831, 833 [1980], revd 52 NY2d 938 [1981], cert denied 454 US 822 [1981][Hopkins, J., dissenting]). Accordingly, a municipality "may investigate the experience andbackground of the bidder" (Matter of Eldor Contr. Corp. v Town of Islip, 277 AD2d 233,234 [2000]; see Matter of Tully Constr. Co. v Hevesi, 214 AD2d 465 [1995]; Matterof Lauvas v Town of Bovina, 86 AD2d 694, 695 [1982]; cf. Matter of ConstructionContrs. Assn. of Hudson Val. v Board of Trustees, Orange County Community Coll., 192AD2d 265, 269 [1993]). Municipalities need not give "[s]lavish attention to financialconsiderations alone" (Matter of Construction Contrs. Assn. of Hudson Val. v Board ofTrustees, 192 AD2d at 267). Instead, "where good reason exists, the low bid may bedisapproved or, indeed, all the bids rejected" (Matter of Conduit & Found. Corp. vMetropolitan Transp. Auth., 66 NY2d 144, 148 [1985]). Where a municipality exercises itsdiscretion to reject one or more bids, that decision "ought not to be disturbed by the courts unless[it is] irrational, dishonest or otherwise unlawful" (id. at 149).
In this case, the Town Board cannot be said to have acted arbitrarily or capriciously inawarding the contract to Suburban Carting rather than AAA Carting (see Matter of PositiveTransp. v City of N.Y. Dept. of Transp., 183 AD2d at 661; Matter of Eldor Contr. Corp.v Town of Islip, 277 AD2d at 234-235; Matter of Quest Diagnostics Inc. v County of Suffolk, 21 Misc 3d944, 952 [2008]). Accordingly, the Supreme Court erred in substituting its judgment for thatof the Town Board and annulling the award of the contract to Suburban Carting (see Matterof Riverkeeper, Inc., v Planning Bd. of Town of Southeast, 9 NY3d at 232; Matter ofJul-Bet Enters., LLC v Town Bd. of Town of Riverhead, 48 AD3d at 567; El CaminoTrucking Corp. v Martinez, 21 AD3d at 491).
In light of our determination, we need not reach the parties' remaining contentions. Santucci,J.P., Angiolillo, Dickerson and Austin, JJ., concur.