Di Napoli & Sons, Inc. v. Board of Education of Union Free School District No. 12 , 18 A.D.2d 1085 ( 1963 )

In a proceeding under article 78 of the Civil Practice Act: (a) to annul a determination of the respondent Board of Education, made August 23, 1962, which awarded a contract for electrical work in certain schools to the respondent Geeco Electric Construction Corp.; and (b) to direct that such contract be awarded to petitioners, the petitioners appeal from the following two orders of the Supreme Court, Nassau County, both dated October 1, 1962: (1) an order, which dismissed their petition, and (2) an order which denied their motion to stay the respondents from performing said contract and from executing additional contracts until the determination of this proceeding. Orders reversed on the law and the facts, without costs; motion for the stay, pending the determination of this proceeding, granted; and proceeding remitted to the Special Term for the purpose of a non jury trial, in accordance with section 1295 of the Civil Practice Act, with respect to the issue of whether the action of the Board of Education in rejecting the bid of the lowest bidder was arbitrary and capricious. That issue cannot be determined on the basis of affidavits containing general charges, which upon a trial may be conclusively shown to be without substance. We do not regard the claims with respect to attempted extortion as material. Ughetta, Acting P. J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.