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

50 N.Y.2d 835 (1980)

In the Matter of T.P.K. Construction Corp., Appellant, v. James C. O'Shea, as Commissioner of the Office of General Services of the State of New York, et al., Respondents.

Court of Appeals of the State of New York.

Argued April 22, 1980.

Decided May 29, 1980.

Steven Rubin for appellant.

Robert Abrams, Attorney-General (Richard J. Dorsey and Shirley Adelson Siegel of counsel), for respondents.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*836MEMORANDUM.

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 *837 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of direct documentary proof of how the bid was prepared, we conclude that the commissioner's refusal to allow it to be withdrawn was neither arbitrary nor capricious nor affected by an error of law (see Matter of Fisher [Levine], 36 N.Y.2d 146, 150).

Order affirmed, with costs, in a memorandum.