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Brooklyn Community Management LLC v. New York City Dep't of Education

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 5, 2009

BROOKLYN COMMUNITY MANAGEMENT LLC, ET AL., PETITIONERS-APPELLANTS,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, ET AL., RESPONDENTS-RESPONDENTS.

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered September 29, 2008, denying the petition seeking, inter alia, to annul respondents' determination disqualifying petitioner Brooklyn Community Management LLC (BCM), its affiliates and all principal owners or officers from conducting business with respondent Department of Education (DOE), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Saxe, Catterson, McGuire, Acosta, JJ.

105159/08

DOE's determination was rationally based upon BCM's continued refusal to accept responsibility for its failure to comply with a certain student's Individualized Education Plan and for having submitted false billing forms pertaining to that student. BCM also failed to answer accurately all questions on the VENDEX forms it submitted as part of its bid proposal for a new contract with DOE, and there were outstanding tax liens against another entity identified as owned by BCM's owner (see e.g. Matter of Ciprietti-Tolisano Assoc. v Karnovsky, 268 AD2d 234 [2000], lv denied 95 NY2d 759 [2000]).

The penalty imposed is not shocking to one's sense of fairness (seem Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]), and contrary to petitioners' contention, was not based upon a single billing error.

We have considered petitioners' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091105

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