The opinion
American Bridge Co. v Contract Dispute Resolution
Bd. of the City of N.Y.
2024 NY Slip Op 34254(U)
December 3, 2024
Supreme Court, New York County
Docket Number: Index No. 154956/2024
Judge: Lyle E. Frank
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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publication.
INDEX NO. 154956/2024
NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 12/03/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
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AMERICAN BRIDGE COMPANY,
MOTION DATE 05/28/2024
Petitioner,
MOTION SEQ. NO. 001
-v-
THE CONTRACT DISPUTE RESOLUTION BOARD OF
THE CITY OF NEW YORK, THE CITY OF NEW YORK,
YDANIS RODRIGUEZ, AS COMMISSIONER OF THE DECISION + ORDER ON
DEPARTMENT OF TRANSPORTATION OF THE CITY OF MOTION
NEW YORK
Respondent.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 13, 14, 15, 16, 17,
18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 64, 65, 66
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Petitioner brings this special proceeding pursuant to Article 78 of the CPLR to challenge
the January 29, 2024 Memorandum Decision (“Decision”) of the Office of Administrative Trials
and Hearing, Contract Dispute Resolution Board (“CDRB”). The CDRB dismissed petitioner’s
petition that sought additional compensation for the removal and replacement of questionable
weld starts. Petitioner now seeks to vacate that Decision. Respondents oppose the instant
petition. For the reasons set forth below the petition is denied.
Background
The parties, petitioner American Bridge Company (“AB”) and the respondents the City
of New York, through its agency the Department of Transportation (“DOT”), entered into a
contract, whereby AB agreed to perform the replacement of upper roadways of the Ed Koch
Queensboro Bridge (the “Bridge”), together with all work incidental thereto.
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Pursuant to Section 6 of the Contract’s general provisions, AB was required to provide
workmanship “of the highest quality.” Section 7 of the Contract’s general provisions required
AB to supply all materials and labor necessary for the “proper operation and perfect completion
of the entire Work.” This dispute involves the portion of the Contract, entitled “Fabricated
Structural Steel – Orthotropic Roadway Deck,” which requires the Contractor to “fabricate,
store, deliver to the site, and install orthotropic steel deck sections, diaphragms, and appurtenant
materials as shown on the contract drawings and as specified herein.” American Bridge
subcontracted with Haberle Steel Inc. (“Haberle”) to produce orthotropic deck panels.
In April 2020, Haberle reported that it had used the wrong settings on the welding
machine, thus deviating from the approved fabrication procedures, which caused cracks.
Haberle then identified January 27, 2020, to April 20, 2020, as the time frame when the incorrect
gantry settings were in effect, however cracks were found in welds installed both prior to and
after the timeframe specified. DOT then required AB to remove all the weld starts from the
beginning of the project, 4, 400, to ensure that there were no cracks.
Standard of Review
Article 78 review is permitted, where it is alleged a determination was made “in violation
of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse
of discretion….” NY CPLR §7803(3). “Arbitrary” for the purpose of the statute is interpreted as
“when it is without sound basis in reason and is taken without regard to the facts.” Pell v Board
of Ed. of Union Free School Dist. No. of the Towns of Scarsdale and Mamaroneck, Westchester
Cty. 34 NY2d 222, 231 [1974].
A court can overturn an administrative action only if the record illuminates there was no
rational basis for the decision. Id. “Rationality is what is reviewed under both the substantial
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evidence rule and the arbitrary and capricious standard.” Id. If the court reviewing the
determination finds that “[the determination] is supported by facts or reasonable inferences that
can be drawn from the records and has a rational basis in the law, it must be confirmed.”
American Telephone & Telegraph v. State Tax Comm’n 61 NY2d 393, 400 [1984].
It is well established that the court should not disturb an administrative body’s
determination once it has been established that the decision is rational. See Matter of Sullivan
Cnty. Harness Racing Ass’n, Inc. v. Glasser, 30 NY2d 269 [1972]; Presidents' Council of Trade
Waste Assns. v New York, 159 AD2d 428, 430 [1st Dept 1990].
Discussion
In support of its petition, petitioner contends that the Decision was affected by errors of
law because it determined that DOT had the right, pursuant to the contract, to direct that the weld
starts be removed and replaced, based on the language in the contract that all workmanship shall
be of the “highest quality,” and because DOT had concerns that the already-installed weld starts
may have had internal cracking, that it could direct AB to remove and replace them without
additional compensation. AB contends that this was an error because the contract provided for a
non-destructive inspection, and pursuant to that inspection the welds passed.
Further, AB contends that although the removal of the welds was within DOT’s authority
pursuant to the Contract, the fact that 4,400 welds were replaced and only 70 of them were
defective entitles AB to compensation for extra work for removing welds that were not defective.
Petitioner also contends that the CDRB erred in its determination that the cracks were not caused
by defective design.
In opposition respondents contend that the CDRB rationally and correctly interpreted the
Contract, which required that AB provide workmanship of the highest quality and achieve
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perfect completion of the Work. Respondents contend that applying these provisions of the
contract to the facts of this matter, the CDRB reasonably determined that AB was obligated to
remove and replace the questionable weld starts at its own cost.
The Court agrees and finds that petitioner has not met its burden that the CDRB’s
decision was irrational or arbitrary and capricious. Rather, this Court finds that the decision is
rational and consistent with the terms of the contract between the petitioner and respondents. It
is undisputed that cracks were found before and after the time periods specified by the
subcontractor and based on the plain language of the contract AB was to provide the highest
quality of work, something that could not be determined absent the removal of the subject welds.
The Court is not persuaded by the argument that only 70 welds were found to have cracks
and thus DOT should be required to pay for the remaining welds as extra work, because absent
the removal of the welds those cracks would not have been discovered, thereby establishing that
AB’s work was not that of the highest quality and not perfect completion of the work.
As to the contentions that the CDRB did not appropriately consider petitioner’s argument
regarding a design flaw, the Court finds that the CDRB did in fact consider and substantively
address that argument and it’s finding is rational and reasonable and therefore should not be
disturbed. Accordingly, it is hereby
ADJUDGED that the petition is denied.
12/3/2024
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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