MATTER OF TPK CONSTR. CORP. v. O'Shea

407 N.E.2d 1331, 50 N.Y.2d 835, 430 N.Y.S.2d 34, 1980 N.Y. LEXIS 2412

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. From our review of the record, we cannot say that the commissioner was compelled to find that the appellant’s low estimate was a result of a failure to consider the need for waterproofing as opposed to a mere lack of skill in projecting costs. In any event, especially in view of the conspicuous absence of direct documentary proof of how the bid was prepared, we conclude that the commissioner’s refusal to allow it to be withdrawn was neither arbitrary nor capricious nor affected by an error of law (see Matter of Fisher [Levine], 36 NY2d 146, 150).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.