Jerkens Truck & Equipment, Inc. v. City of Yonkers

130 A.D.2d 576, 515 N.Y.S.2d 516, 1987 N.Y. App. Div. LEXIS 46576

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1987
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to prohibit the City of Yonkers from awarding to the respondent Ottawa Truck Corporation a contract for the supply of refuse removal vehicles, and to compel the City of Yonkers to award this contract to the petitioner, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Coppola, J.), entered June 6, 1986, which dismissed the proceeding without a hearing.

Ordered that the judgment is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination.

The Supreme Court, Westchester County, improperly dismissed this proceeding without first conducting a hearing. The affidavits submitted raised various triable and disputed factual issues which require a hearing in order to be resolved (CPLR 7804 [h]; see also, Matter of Murphy v Burkhart, 92 AD2d 733; Matter of Masder Bldrs. v Overton, 15 AD2d 551). We point primarily to the question of whether the respondent Ottawa Truck Corporation submitted a bid proposal which failed to comply with the bid specification that the cab and chassis in the garbage trucks which were the subject of the contract "shall be of a proven design presently in production and service” and of whether the respondent municipality improperly waived noncompliance with that specification. Thompson, J. P., Bracken, Rubin and Eiber, JJ., concur.