| Matter of A.J. McNulty & Co., Inc. v Greenberger |
| 2011 NY Slip Op 01731 [82 AD3d 506] |
| March 10, 2011 |
| Appellate Division, First Department |
| In the Matter of A.J. McNulty & Company, Inc.,Appellant, v Sharon Greenberger et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), forrespondents.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered August 26, 2010, which, tothe extent appealed from, denied the petition seeking to annul respondent New York City Schoolof Construction Authority's determination to remove petitioner from a list of prequalifiedresponsible bidders, and declare Public Authorities Law § 1734 (3) (b) and 21 NYCRR9600.3 (d) (2) (i) invalid, and dismissed the proceeding brought pursuant to CPLR article 78,unanimously modified, on the law, to declare that there is a rational basis for the Authority'sdetermination, and otherwise affirmed, without costs.
The Authority issued its determination after learning about the execution of search warrantsat petitioner's offices in furtherance of an ongoing criminal investigation into work performed forthe Metropolitan Transportation Authority. Pursuant to 21 NYCRR 9600.3 (d) (2) (i), theAuthority may preclude an applicant "from working for [it] until there is a favorable resolution of. . . [a] pending criminal investigation." Accordingly, the Authority's determinationwas not arbitrary and capricious (see Matter of N.J.D. Elecs. v New York City Health &Hosps. Corp., 205 AD2d 323, 324 [1994]).
Public Authorities Law § 1734 (3) (b), which allows the Authority to consider factors"it deems appropriate" in determining whether a prospective bidder qualifies for inclusion on alist of prequalified bidders, is a valid delegation of legislative power. Indeed, the Legislature may"delegat[e] . . . power, with reasonable safeguards and standards, to an agency orcommission to administer the law as enacted by the Legislature" (Matter of Levine vWhalen, 39 NY2d 510, 515 [1976]). The statute at issue here provides a guideline of factorsto consider in determining the qualifications of prospective bidders, and thus does not, aspetitioner asserts, give the Authority "unfettered authority."
Lastly, the Authority did not exceed its authority by enacting 21 NYCRR 9600.3 (d) (2) (i).This regulation has not been shown to be "so lacking in reason for its promulgation that it is[*2]essentially arbitrary" (Festa v Leshen, 145 AD2d 49,55 [1989] [internal quotation marks and citation omitted]).
The court should have declared in the Authority's favor upon finding that petitioner was notentitled to the declaration it sought. Concur—Saxe, J.P., Friedman, Acosta, DeGrasse andRichter, JJ.