In a recent decision from the New York Supreme Court, Appellate Division, Second Department, In the Matter of New York Constr. & Renovation, Inc. v. City of New York Dep’t of Parks & Recreation, the court affirmed the dismissal of a hybrid proceeding brought by New York Construction & Renovation, Inc. (NYCR) against the City of New York Department of Parks and Recreation. The dispute arose from a construction contract awarded to NYCR in for the development of a comfort station in Canarsie Park in Brooklyn, New York. Although the Parks Department initially directed NYCR to begin work on March 1, 2019, it granted a one-month extension to April 1, 2019, in response to NYCR’s request. NYCR failed to commence work by the revised start date, prompting the Parks Department to issue a notice in September 2019 requiring NYCR to show cause why it should not be declared in default. Following a meeting, the Parks Department issued a default determination on October 30, 2019.
NYCR challenged the default determination through a hybrid New York Civil Practice Law and Rules (CPLR) Article 78 proceeding and sought declaratory relief. An Article 78 proceeding is the legal mechanism in New York that allows individuals or entities to seek judicial review of actions or decisions made by administrative agencies or public officials. It is commonly used to challenge determinations that are claimed to be unlawful, arbitrary, or procedurally flawed.
In this case, the Parks Department moved to dismiss the declaratory judgment claims, citing a contractual provision that limited NYCR’s remedies to judicial review under Article 78. The court agreed, holding that the parties’ contract expressly restricted post-default remedies and that the Parks Department’s determination was neither arbitrary nor capricious.
In an Article 78 proceeding, the court’s review is limited to whether the agency’s determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or lacked a rational basis. Applying this standard, the court found that the Parks Department acted rationally in concluding that NYCR had defaulted. The agency’s decision was based on NYCR’s failure to submit an acceptable progress schedule, provide necessary submittals, and obtain a required permit from the Department of Buildings, all of which contributed to project delays.
NYCR argued that a moratorium on gas line applications by National Grid prevented it from obtaining the necessary permit, but the court declined to consider this claim because it had not been raised during the administrative process. The court also rejected NYCR’s due process argument, finding no procedural violations. Additionally, the court found no error of law and concluded that there were no factual issues requiring a trial.
Ultimately, the court upheld the Parks Department’s motion to dismiss, denied NYCR’s petition, and affirmed the agency’s default determination. The decision shows the importance following contractual and agency procedures when disputing government actions.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
