723 N.Y.S.2d 464 | N.Y. App. Div. | 2001
—Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered March 6, 1990, which denied defendant’s motion to dismiss the complaint on the ground that plaintiff failed to comply with alternative dispute resolution in the underlying contract, unanimously reversed, on the law, without costs, motion to dismiss granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Plaintiff was a contractor engaged by defendant Transit Authority to excavate for new subway facilities in lower Manhattan. The contract provided that disputes were to be resolved by defendant’s Chief Engineer with subsequent judicial review limited in scope to whether or not any determination by the Chief Engineer is “arbitrary, capricious or so grossly erroneous to evidence bad faith.” Such a dispute arose, was submitted by plaintiff to the Chief Engineer and was resolved against plaintiff. Instead of seeking review as provided