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THE APPELLATE DIVISION DID NOT HAVE SUBJECT MATTER JURISDICTION BECAUSE PETITIONER’S REQUEST FOR AN ADMINISTRATIVE HEARING HAD BEEN DENIED, THE ARTICLE 78 PETITION, SEEKING REVIEW OF THE DISQUALIFICATION OF A BID ON A CONSTRUCTION PROJECT, WAS THEREFORE DISMISSED (THIRD DEPT).

The Third Department determined it did not have subject matter jurisdiction and therefore the Article 78 petition seeking review of the disqualification of a bid on a construction project must be denied. The appellate division, by statute, has jurisdiction only after an administrative hearing. Here petitioner’s request for a hearing was denied:

To commence this proceeding here, petitioner relied on Executive Law § 313 (5) (c), which states that, “[w]ithout limiting other grounds for the disqualification of bids . . . on the basis of non-responsibility, a contracting agency may disqualify the bid . . . as being non-responsible for failure to remedy notified deficiencies contained in the contractor’s utilization plan within a period of time specified in regulations promulgated by the director after receiving notification of such deficiencies from the contracting agency.” The statute further provides that “[w]here the contracting agency states that a failure to remedy any notified deficiency in the utilization plan is a ground for disqualification[,] the contractor shall be entitled to an administrative hearing, on a record[.] . . . A final administrative determination made following such hearing shall be reviewable in a proceeding commenced under [CPLR] article [78] . . . [and] shall be commenced in [this Court]” (Executive Law § 313 [5] [c]). The last quoted portion of the statute grants this Court original jurisdiction in a proceeding to challenge a final administrative determination that was made following a specified type of hearing, which is otherwise provided for in that paragraph. Respondent’s determination at issue here was not made following a hearing; indeed, the determination dismissed petitioner’s request for a hearing and petitioner is now seeking, as relief in this proceeding, a court order compelling respondent to conduct such a hearing. As no statute grants this Court original jurisdiction to review the determination that petitioner is challenging, we must dismiss the petition for lack of subject matter jurisdiction … . Matter of Accadia Site Contr., Inc. v Erie County Med. Ctr. Corp., 2019 NY Slip Op 05730, Third Dept 7-18-19

 

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