Opinion
December 27, 1961
In three proceedings by general contractors under article 78 of the Civil Practice Act, to review and annul a resolution of the Board of Education of the City of New York, dated May 25, 1961, disqualifying them from bidding on the board's contracts for school work; to declare said contractors to be prequalified to bid on such contracts, and for other relief, the board and the school officials (named as respondents below) appeal: (1) from an order of the Supreme Court, Kings County, dated November 1, 1961, made in each proceeding, which granted the petition, annulled said resolution on the ground that it was arbitrary and capricious, and directed the board and the school officials to issue to said contractors plans and specifications for school construction work and to accept their bids, and which vacated a stay theretofore granted by the court against the board; and (2) from a decision of said court, rendered August 10, 1961, in each proceeding. In each proceeding: order modified on the law and the facts by striking out the first three decretal paragraphs, and by substituting therefor a paragraph dismissing the petition on the merits. As so modified, the order is affirmed, without costs. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. In each proceeding: appeal from decision dismissed; no appeal lies from a decision. In our opinion, there was a substantial factual basis for the making of the subject resolution; hence, the court may not substitute its judgment for that of the Board of Education of the City of New York ( Matter of Diocese of Rochester v. Planning Bd., 1 N.Y.2d 508, 520). Ughetta, Acting P.J., Christ, Pette and Brennan, JJ., concur. [ 30 Misc.2d 185.]