author: Per Curiam.

text:
    Lorraine A. Cappiello, Appellant-Respondent, v Anthony E. Cappiello, Respondent-Appellant.
    Decided October 24, 1985

      APPEARANCES OF COUNSEL

      Lorraine Allen Cappiello, appellant-respondent pro se.

      Milton Kail for respondent-appellant.
   OPINION OF THE COURT

Per Curiam.

Plaintiffs appeal raises issues of law concerning (1) whether the Appellate Division had jurisdiction of defendant’s appeal in view of the claimed untimeliness of his notice, (2) whether a cooperative apartment, acquired during the marriage and before commencement of the divorce action, was properly held to be separate property, (3) whether Trial Term was authorized to award her a lump sum of $25,000, to "compensate her for the loss of her time” during the marriage, and (4) whether the Appellate Division, when reducing her marital award from 50% to 25%, was required to find that Trial Term had abused its discretion, and to analyze and state its reasons with respect to all of the factors listed in Domestic Relations Law § 236 (B) (5) (d).

While the failure timely to serve a notice of appeal goes to jurisdiction over the subject matter, which may be raised at any time (People v Thomas, 47 NY2d 37; Ocean Acc. & Guar. Corp. v Otis Elevator Co., 291 NY 254), plaintiff concedes that the notice of appeal to the Appellate Division was served on the 34th day after the judgment had been served by mail. Since the 1982 amendment to CPLR 2103 (b) (2), service by mail adds five days to the prescribed period. Service of the notice of appeal on the 34th day was, therefore, timely.

Trial Term’s decision recites that the cooperative apartment was bought by the husband with his own funds and that plaintiff had not shown that it had increased in value, and the Appellate Division affirmed. Although plaintiff correctly argues that property acquired "during the marriage and before * * * commencement of a matrimonial action” is marital property (§ 236 [B] [1] [c]), she fails to consider that section 236 (B) (1) (d) (3), with an exception not here applicable, classifies as separate property "property acquired in exchange for or the increase in value of separate property”. In view of the affirmed finding recited above, the issue is beyond our power of review.

Plaintiff argues that Trial Term’s lump-sum award representing what she could have earned during the seven months the parties lived together was proper either as an award of maintenance or as a "dislocation” award. Prior to adoption of section 236 (B), an alimony award could be made retroactive to the date of commencement of the action (Harris v Harris, 259 NY 334, 337; McCarthy v McCarthy, 143 NY 235). Domestic Relations Law § 236 (B) (6) (a) now provides that a maintenance award "order shall be effective as of the date of the application therefor,” and while it also provides that "any retroactive amount of maintenance due shall be paid in one sum or periodic sums,” that provision relates to arrears in the temporary award ("maintenance due”) and does not authorize maintenance for periods prior to commencement of the action. The conclusion thus reached is further supported by section 236 (B) (1) (a), which defines "maintenance” as an award "to be paid at fixed intervals”, and section 236 (B) (6) (a), which provides for "maintenance to meet the reasonable needs”, both of which suggest futurity rather than retroactivity. We agree with the Appellate Division, therefore, that Trial Term’s lump-sum award was not authorized by the maintenance provisions of Domestic Relations Law § 236 (B).

Nor was it authorized, as plaintiff argues, as a dislocation award. The statute provides for a distributive award (§ 236 [B] [5] [e]) in lieu of equitable distribution of marital property, but contains no authorization for a dislocation award in lieu of earnings lost during the period of the marriage. Wilson v Wilson (101 AD2d 536, appeal dismissed 63 NY2d 768, lv denied 64 NY2d 607) is not to the contrary, for it concerned not a lump sum for lost past earnings but an award of maintenance for three years found to be warranted by reason of the wife’s lessened economic situation after the marriage — in other words, by her need for maintenance for a limited period of time in the future.

The contention that the Appellate Division could modify Trial Term’s award of 50% of the marital property only if it found that Trial Term abused its discretion is answered by Northern Westchester Professional Park Assoc. v Town of Bedford (60 NY2d 492, 499 [the authority of the Appellate Division is as broad as that of the trial court; that the latter had the advantage of seeing the witnesses is but one factor to be considered]) and Majauskas v Majauskas (61 NY2d 481, 494 [absent exercise of discretion by the Appellate Division so egregious as to amount to an abuse of discretion as a matter of law, its exercise of discretion is not reviewable by us]). The factors listed by the Appellate Division as the basis for its reduction of the award to 25% make clear that there was no abuse of discretion as a matter of law. Nor was the Appellate Division required by Domestic Relations Law § 236 (B) (5) (g) to analyze each of the factors stated in subdivision (5) (d) and give reasons as to each, it being sufficient under subdivision (5) (g) that it "set forth the factors it considered and the reasons for its decision” (Kobylack v Kobylack, 62 NY2d 399, 403).

Plaintiffs remaining arguments are either not before us on this appeal, unpreserved or without merit.

On plaintiffs appeal, the order of the Appellate Division should be affirmed, without costs. Defendant’s cross appeal should be dismissed for want of aggrievement, the modification made by the Appellate Division having been in his favor.

Chief Judge Wachtler and Judges Jasen,. Meyer, Simons, Kaye, Alexander and Titone concur in Per Curiam opinion.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4): on plaintiffs appeal, order affirmed, without costs. Defendant’s cross appeal dismissed, without costs.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    FGL & L Property Corp., Respondent, v City of Rye et al., Appellants.
    Argued September 11, 1985;
    decided October 24, 1985
    POINTS OF COUNSEL

      Henry J. Smith and James G. Fine for appellants.
    I. The court below erred in invalidating the dual-purpose zoning district on the stated ground that the provisions for condominium development of the property attempt to regulate the form of ownership rather than the use of property, by way of zoning. (Matter of Wulfsohn v Burden, 241 NY 288; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 450 US 1042; Agins v Tiburon, 447 US 255; Village of Belle Terre v Boraas, 416 US 1; Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 79 Misc 2d 438, 48 AD2d 681, 39 NY2d 1029; Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492; Matter of Presnell v Leslie, 3 NY2d 384.) II. Plaintiffs papers afford no support to its cross motion for summary judgment and it has come forward with insufficient evidentiary proof to satisfy the requirements for opposing defendants’ motion for summary judgment on the issue of confiscation by virtue of a "taking” of its property under the historic preservation law — particularly in view of the detailed requirements of proof of confiscation and the ultimate burden of proof of confiscation. (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 438 US 104; Matter of Society for Ethical Culture v Spatt, 51 NY2d 449; Park Ave. Tower Assoc. v City of New York, 746 F2d 135; Goldblatt v Hempstead, 369 US 590; New Orleans v Dukes, 427 US 297; Dauernheim, Inc. v Town Bd., 33 NY2d 468.)

      Peter Gruenberger, Lesley E. Goldberg, Robbie Narcisse and Theodore S. Steingut for respondent.
    I. The City of Rye lacks the power to prescribe the form of ownership under the guise of zoning. (North Fork Motel v Grigonis, 93 AD2d 883; Matter of Kamhi v Planning Bd., 59 NY2d 385; Matter of Bon-Air Estates v Building Inspector, 31 AD2d 502; Matter of Board of Educ. v City of Buffalo, 32 AD2d 98; De Peyster v Michael, 6 NY 467.) II. The decision of the court below should be affirmed on additional constitutional and statutory grounds that invalidate the Alansten zone. (Mitchell v New York Hosp., 61 NY2d 208; Langnes v Green, 282 US 531; United States v American Ry. Express Co., 265 US 425; In re Schwartz, 89 F2d 172; Williams v Bank of Am. Natl. Assn., 55 F2d 884; Forster v Scott, 136 NY 577; Benenson v United States, 548 F2d 939; Armstrong v United States, 364 US 40; Penn Cent. Transp. Co. v New York City, 438 US 104; French Investing Co. v City of New York, 39 NY2d 587, 429 US 990.) III. Special Term properly denied the City’s motion for summary judgment. (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Chickering v Colonial Life Ins. Co., 51 AD2d 567; Dauernheim, Inc. v Town Bd., 33 NY2d 468.)
   OPINION OF THE COURT

Meyer, J.

Nothing in the zoning enabling provisions of the General City Law, the historical preservation provisions of the General Municipal Law or the Landmarks Preservation provisions of the Rye City Code empowers the City to mandate the manner in which property may be owned or held or to impose upon the owner of a tract containing historic structures, or purchasers of properties neighboring the tract, the cost of rehabilitation or enhancement of the properties. The order of the Appellate Division should, therefore, be affirmed, with costs.

I

Plaintiff is the owner in fee of a parcel of land situated in the City of Rye (City) of approximately 22 acres on which are located the Jay Mansion, built in 1838 by Peter Jay, son of John Jay, the first Chief Justice of the United States Supreme Court, and another building known as the Carriage House, built around 1912 in the Colonial Revival style. There is some dispute between the parties concerning the historic or landmark significance of the Carriage House, but for purposes of this opinion we assume that both buildings have such significance. It is unnecessary to detail the negotiations carried on from 1979 until 1983 between the City and plaintiff’s predecessor in title and between the City and plaintiff, and the various rezoning proposals that were made during those negotiations, although a few pertinent and uncontested facts developed during those negotiations are referred to below.

When acquired by plaintiff’s predecessor the property was zoned R-2, as were neighboring properties, some of which were used, however, for public purposes or office use under nonconforming uses. R-2 zoning permits single-family detached homes on not less than one-half-acre plots, and plaintiff’s property would have accommodated 38 such dwellings. In June 1983, the City Council adopted Local Law No. 5-1983, which added a new section 197-13.2 to the City Code creating the Alansten Landmarks Preservation District (LPD-A). As the revised zoning map demonstrates, and defendants do not deny, the only property zoned LPD-A was plaintiff’s 22 acres. Plaintiff then began the present action, which in seven causes of action sought an injunction against enforcement of the section, a declaration that it is invalid as ultra vires, unconstitutional, site specific, spot zoning and not in accordance with a well-considered zoning plan, and money damages under 42 USC § 1983. Defendants moved for summary judgment declaring the local law constitutional and otherwise dismissing the complaint. Plaintiff cross-moved for partial summary judgment in its favor. Supreme Court held that there were issues concerning constitutionality requiring trial, but that the ordinance, as a hybrid containing elements of both zoning and historic preservation regulation, was not invalid as site-specific or spot-zoning and had not been shown not to be in accordance with the City’s comprehensive plan, and that the section 1983 action would not lie with respect to legislative action. Defendants’ motion for summary judgment was, therefore, granted unless plaintiff demonstrated at a plenary trial that the section prevented it from realizing any economic benefit from its property. Plaintiff’s cross motion was denied. Plaintiff appealed to the Appellate Division, as limited by its brief, from Special Term’s order except as to the section 1983 cause of action; defendants appealed from so much of that order as directed a trial on constitutionality and denied summary judgment declaring the section valid and constitutional. The Appellate Division, in a memorandum which referred only to the zoning aspect of the section, reversed and declared the section "invalid as it constitutes an improper regulation of the form of ownership of property.” (109 AD2d, at p 815.) We agree that it is unnecessary to consider the constitutional issues and that the zoning enabling provisions under which the City acted do not authorize it to regulate ownership, and hold further that nothing in the historical preservation provisions of the General Municipal Law or the Landmarks Preservation chapter of the City Code, upon both of which the City relies, whether considered separately or in conjunction with the zoning enabling provisions of the General City Law, empowered the City to enact the section in its present form. We, therefore, affirm.

II

The section as enacted declares that in order to provide for flexibility in the City’s zoning "so that the significant historic buildings, the Jay Mansion and the Carriage House, and site features which characterize this site * * * are preserved for the future and that new construction be undertaken with care and consideration for these features and the environment”, the new district is adopted. Subdivision B establishes standards for the new district, which include that "[t]he lot as approved shall have a minimum area of twenty-two (22) acres and shall be and remain in single ownership”; that "[t]he exterior of the Jay Mansion and Carriage House shall be rehabilitated and the interiors converted to residential use”, for the Jay Mansion not to exceed three units and for the Carriage House not to exceed six; that there be a trapezoidal view way 90 feet in width at the rear of the Jay Mansion and 300 feet in width at the southerly property line; that the new dwelling units may not be occupied until the exteriors of the Jay Mansion and the Carriage House have been restored and the interiors converted to residential use and available for occupancy and that a bond be posted to assure such rehabilitation and conversion; and that the application for site plan approval be accompanied by, among other things, a draft condominium offering statement together with a draft of an easement and/or agreement for perpetual maintenance of the exteriors of the Jay Mansion and the Carriage House. Neither the statutes authorizing enactment of zoning provisions nor those dealing with historic landmarks empower the City Council to adopt a local law with such provisions, nor does anything in the Landmarks Preservation chapter of the City Code support its so doing.

A

Zoning laws are to be given a strict construction because they are in derogation of common-law rights (Matter of 440 E. 102nd St. Corp. v Murdock, 285 NY 298, 304; see, Matter of Frishman v Schmidt, 61 NY2d 823). Moreover, there being no inherent power to enact zoning or land use regulation, an ordinance or local law provision for which legislative delegation of power cannot be found is ultra vires and void (Matter of Kamhi v Planning Bd., 59 NY2d 385). Power to adopt provisions not expressly forbidden by the enabling authorization may, however, be implied where there exists independent justification for provisions within the spirit of the enabling legislation (Collard v Incorporated Vil. of Flower Hill, 52 NY2d 594, 602).

The enabling provision for residential zoning in cities is General City Law § 20 (24). That subdivision empowers a city "To regulate and limit the height, bulk and location of buildings hereafter erected, to regulate and determine the area of yards, courts and other open spaces, and to regulate the density of population in any given area, and for said purposes to divide the city into districts. Such regulations shall be uniform for each class of buildings throughout any district, but the regulations in one or more districts may differ from those in other districts. Such regulations shall be designed to secure safety from fire, flood and other dangers and to promote the public health and welfare, including, so far as conditions may permit, provision for adequate light, air, convenience of access, and the accommodation of solar energy systems and equipment and access to sunlight necessary therefor, and shall be made with reasonable regard to the character of buildings erected in each district, the value of land and the use to which it may be put, to the end that such regulations may promote public health, safety and welfare and the most desirable use for which the land of each district may be adapted and may tend to conserve the value of buildings and enhance the value of land throughout the city.” (Emphasis supplied.)

Nothing in that subdivision speaks to ownership rather than use, and while it does not expressly forbid provisions relating to ownership, the City suggests nothing within the spirit of zoning legislation generally or this subdivision specifically that offers justification for implying such power. Indeed, the cases are legion, in this State and elsewhere, which hold that “zoning * * * in the very nature of things has reference to land rather than to owner” (Vernon Park Realty v City of Mount Vernon, 307 NY 493, 500) and that it is a “fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it” (Matter of Dexter v Town Bd., 36 NY2d 102, 105; accord, Matter of Weinrib v Weisler, 27 NY2d 592, affg 33 AD2d 923; Allen v Town of N. Hempstead, 103 AD2d 144, 146; North Fork Motel v Grigonis, 93 AD2d 883; see, Matter of Park W. Vil. Assoc. v Abrams, 65 NY2d 716). Most of the out-of-State cases hold, as did the North Fork Motel case, that a zoning ordinance cannot be used to exclude a condominium. The City correctly notes that exclusion of condominiums is a different proposition than requiring that property in a given area be held in condominium ownership. However, we agree with the Appellate Division’s conclusion that the distinction is without a difference, or, if difference there is, that there exists no independent justification within the spirit of subdivision 24’s zoning provision from which the power to require condominium ownership can be implied.

Nor does General City Law § 37, which contains the cluster zoning authorization applicable to cities such as Rye, provide such justification. Under its provisions the Planning Board is authorized to make reasonable changes in the zoning regulation, provided that the average density of the land not be greater than is permitted in the district in which the land lies. Although what the legislative body can authorize its Planning Board to do, it can do itself by appropriate amendment of its zoning ordinance (see, Cummings v Town Bd., 62 NY2d 833, 834; Rodgers v Village of Tarrytown, 302 NY 115, 123), the section contains nothing which indicates an intention to do more than allow deviation from fixed dimensional zoning upon application of the owner in order to accommodate group houses, apartment houses or stores. Power to require development of a 22-acre parcel in condominium ownership cannot be implied from its provisions, therefore, any more than can it be implied from General City Law § 20 (24).

B

Authority to enact section 197-13.2 of the Code of the City of Rye does not exist, therefore, unless it can be found in the historical preservation provisions contained in section 96-a and article 5-K of the General Municipal Law or the Landmarks Preservation provision of the Rye City Code (ch 117).

Section 96-a of the General Municipal Law reads as follows: "In addition to any power or authority of a municipal corporation to regulate by planning or zoning laws and regulations or by local laws and regulations, the governing board or local legislative body of any county, city, town or village is empowered to provide by regulations, special conditions and restrictions for the protection, enhancement, perpetuation and use of places, districts, sites, buildings, structures, works of art, and other objects having a special character of special historical or aesthetic interest or value. Such regulations, special conditions and restrictions may include appropriate and reasonable control of the use or appearance of neighboring private property within public view, or both. In any such instance such measures, if adopted in the exercise of the police power, shall be reasonable and appropriate to the purpose, or if constituting a taking of private property shall provide for due compensation, which may include the limitation or remission of taxes.” Article 5-K is broader in scope, covering historic preservation not only by regulation but by governmental acquisition as well. Section 119-bb (4) defines "historic preservation” to mean "for the purposes of this article and notwithstanding any other provision of law, the study, designation, protection, restoration, rehabilitation and use of buildings, structures, districts, areas, sites or objects significant in the history, architecture, archeology or culture of this state, its communities, or the nation.” The operative provisions of the article are contained in section 119-dd, which is set forth in full in the margin.

Of importance to the present issue is the fact that the regulation, special condition or restriction by which section 119-dd (1) authorizes control of private property is "for the protection, enhancement, perpetuation and use of places, districts, sites, buildings, structures”. Nothing in the subdivision speaks to regulation of ownership. Noteworthy also is the fact that though section 119-bb (4) refers to "restoration” and "rehabilitation”, those words are not to be found in section 119-dd (1), presumably because it was intended to permit a municipality acting under section 119-dd (3) after acquisition of a fee or lesser interest to restore and rehabilitate historic buildings and sites, but not to permit the municipality to impose an obligation to restore or rehabilitate such buildings or sites as remain in private ownership. Here the Code sections creating the Alansten Landmarks Preservation District not only mandate that the entire 22-acre district remain in single ownership but also impose upon the developer the duty of rehabilitating the exteriors of the Jay Mansion and the Carriage House, proscribe the use of any new dwelling unit until that has been done, thus effectively requiring that the cost of rehabilitation be shared by owners in the district of units other than the Jay Mansion and the Carriage House, and by dictating condominium ownership of the entire district impose the cost of maintenance of the exteriors of the Mansion and the Carriage House upon owners of such units as well.

The right to impose reasonable controls on the use and appearance of neighboring private property within public view, given by General Municipal Law §§ 96-a and 119-dd (1), cannot be stretched to cover payment of restoration and maintenance costs, for such a construction, which would impose those costs upon every unit in the district, not just those "within public view,” would render meaningless the limitation intended by those words which appear in both sections. Yet there is no question that such was the Council’s intention, for its findings with respect to the final environmental impact statement flatly stated that "[o]nly under [condominium] ownership can the cost of maintaining the exteriors of the historic buildings be shared by all the homeowners”, and that theme is repeatedly emphasized in the City’s brief to this court. While that may be true, clearer authorization to enact such provisions than are contained in the General Municipal Law sections referred to is essential before section 197-13.2 can be upheld against the argument that it was beyond the City’s power to enact.

Noteworthy also, in view of the requirement that the Mansion and Carriage House be completely restored before any other unit can be occupied is the absence from the General Municipal Law sections of authority to require restoration, as distinct from maintenance. Landmark and historic preservation laws normally prevent alteration or demolition of existing structures unless the owner can demonstrate hardship (Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 330, affd 438 US 104), but if they place an undue and uncompensated burden on the individual owner may be held unconstitutional (Lutheran Church in Am. v City of New York, 35 NY2d 121, 129) because "it forces the owner to assume the cost of providing a benefit to the public without recoupment” (French Investing Co. v City of New York, 39 NY2d 587, 596; see, Dunham, A Legal and Economic Basis For City Planning, 58 Colum L Rev 650, 665). Here, society at large bears no part of the cost of restoration, it is rather to be borne initially by plaintiff and ultimately by the purchasers of dwelling units within the district. Yet the City’s expert appraiser agreed that restoration costs of approximately $627,000 for the Jay Mansion and $588,000 for the Carriage House would be required.

We do not hold that the General Municipal Law sections could not be drafted to impose restoration costs on an owner without violating the Constitution, nor need we reach the question whether as applied to plaintiff’s property section 197-13.2 is constitutional. We hold rather that in light of the well-recognized rule that statutes are to be construed so as to avoid constitutional issues if such a construction is fairly possible (Matter of Peters v New York City Hous. Auth., 307 NY 519, 527-528; see, People v Felix, 58 NY2d 156, 161; McKinney’s Cons Laws of NY, Book 1, Statutes § 150), the General Municipal Law sections under consideration as presently written should be construed not to authorize imposition of restoration costs solely upon plaintiff and purchasers from plaintiff or maintenance costs upon purchasers of properties other than those to be preserved.

C

In view of the distinctions between zoning regulation, historic district regulation and landmark regulation recognized in Penn Cent. Transp. Co. v City of New York (42 NY2d, at p 330, supra), we note that chapter 117 of the Rye City Code deals with landmarks preservation and is referred to in section 197-13.2 (C) (1). As chapter 117 read when the Alansten Preservation District section was enacted, landmark designation required the property owner’s consent, but effective December 7, 1983, chapter 117 was amended to remove the consent requirement and provide for landmark designation by the City Council alone, and effective July 18,1984, the Alansten 22-acre site and the exteriors of the Jay Mansion and of the Carriage House were designated as protected. Nothing in that designation or in the provisions of chapter 117, which concern only maintenance of a landmark and the circumstances under which it can be demolished, provides support for the provisions of section 197-13.2 requiring that the Alansten property be held in single ownership in condominium form or the imposition of restoration, as distinct from maintenance, costs upon the property owner and ultimately upon purchasers of dwelling units within the district.

For the foregoing reasons, the order of the Appellate Division declaring Rye City Code § 197-13.2 invalid is affirmed, with costs.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye, Alexander and Titone concur.

Order affirmed, with costs.

      . Title has apparently been transferred back to the predecessor by plaintiif, but the fact that there has been no substitution of parties does not moot the appeal (Pacific Blvd. Assoc. v City of Long Beach, 38 NY2d 766).

      . Subdivision 25 authorizes regulation and restriction of trades and industries and, therefore, is not a source of power for the local law under consideration. In any event, it provides no greater support for Local Law No. 5 than subdivision 24, for it authorizes no more than control of where "buildings, designed for specific uses” may be located and of "the uses for which buildings may not be erected or altered.”

      . City of Miami Beach v Arlen King Cole Condominium Assn. (302 S2d 777 [Fla], cert denied 308 S2d 118); CHR Gen. v City of Newton (387 Mass 351, 439 NE2d 788); Bridge Park Co. v Borough of Highland Park (113 NJ Super 219, 273 A2d 397); Graham Ct. Assoc. v Town Council (53 NC App 543, 281 SE2d 418); see, McHenry State Bank v City of McHenry (113 Ill App 3d 82, 446 NE2d 521); Maplewood Vil. Tenants Assn. v Maplewood Vil. (116 NJ Super 372, 282 A2d 428); but see, Goldman v Town of Dennis (375 Mass 197, 375 NE2d 1212); Griffin Dev. Co. v City of Oxnard (39 Cal 3d 256, 703 P2d 339 [1985]). The general proposition is, however, also recognized in noncondominium cases (Vlahos Realty Co. v Little Boar’s Head Dist., 101 NH 460, 146 A2d 257; County of Fayette v Cossell, 60 Pa Commw 202, 430 A2d 1226; Fernald’s Appeal, 17 Pa D&C 2d 291; Olevson v Zoning Bd., 71 RI 303, 44 A2d 720).

      . The cluster provisions of the Town Law (§ 281) and the Village Law (§ 7-738) are somewhat more detailed, but even if read in pari materia (see, Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 39 NY2d 1029, affg on opn at Special Term 79 Misc 2d 438), the City’s authority is not enhanced, for both speak to the "development of land in such a manner as to promote the most appropriate use of land’ ’.

      . The section, entitled "Local historic preservation programs,” reads as follows:
      "In addition to existing powers and authorities for local historic preservation programs including existing powers and authorities to regulate by planning or zoning laws and regulations or by local laws and regulations for preservation of historic landmarks and districts and use of techniques including transfer of development rights, the legislative body of any county, city, town or village is hereby empowered to:
      "1. Provide by regulations, special conditions and restrictions for the protection, enhancement, perpetuation and use of places, districts, sites, buildings, structures, works of art and other objects having a special character or special historical, cultural or aesthetic interest or value. Such regulations, special conditions and restrictions may include appropriate and reasonable control of the use or appearance of neighboring private property within the public view, or both.
      "2. Establish a landmark or historical preservation board of commission with such powers as are necessary to carry out all or any of the authority possessed by the municipality for a historic preservation program, as the local legislative body deems appropriate.
      "3. After due notice and public hearing, by purchase, gift, grant, bequest, devise, lease or otherwise, acquire the fee or any lesser interest, development right, easement, covenant or other contractual right necessary to achieve the purposes of this article, to historical or cultural property within its jurisdiction. After acquisition of any such interest pursuant to this subdivision, the effect of the acquisition on the valuation placed on any remaining private interest in such property for purposes of real estate taxation shall be taken into account.
      "4. Designate, purchase, restore, operate, lease and sell historic buildings or structures. Sales of such buildings and structures shall be upon such terms and conditions as the local legislative body deems appropriate to insure the mainte-

        nonce of the historic quality of the buildings and structures, after public notice is appropriately given at least thirty days prior to the anticipated date of availability and shall be for fair and adequate consideration of such buildings and structures which in no event shall be less than the expenses incurred by the municipality with respect to such buildings and structures for acquisition, restoration, improvement and interest charges.
      "5. Provide for transfer of development rights for purposes consistent with the purposes of this article.”

      . On June 18,1984, the Alansten 22-acre plot was so designated. The constitutionality of the amended version of the chapter is awaiting trial before Supreme Court, Westchester County, in a declaratory judgment action entitled DGM Partners-Rye v City of Rye.


author: Simons, J. Chief Judge Wachtler

text:
    In the Matter of Sterling Estates, Inc., Appellant, v Board of Assessors of the County of Nassau et al., Respondents.
    Argued September 10, 1985;
    decided October 24, 1985

      POINTS OF COUNSEL

      Adolph Koeppel, Anne J. Del Casino and Donald F. Leistman for appellant.
    I. Appellant, having timely served its protests and petitions, was entitled to amend the petitions since respondents were not prejudiced thereby. (Grant Co. v Srogi, 52 NY2d 496; Matter of Great E. Mall v Condon, 36 NY2d 544; People ex rel. Interstate Land Holding Co. v Purdy, 236 NY 609; Matter of Singer v Tax Assessor, 56 AD2d 655; Matter of Pollack v Board of Assessors, 62 AD2d 1019; Matter of City of Little Falls v Board of Assessors, 68 AD2d 734; People ex rel. Irving Trust Co. v Miller, 264 App Div 270; Matter of Halpern v Rollo, 54 AD2d 733; Matter of VeRost v Fraser, 90 AD2d 952; Matter of Gould v Kerwick, 65 AD2d 848.) II. There is no prejudice to respondent by grant of leave to amend the petitions to indicate the total assessments. Respondent is obligated to defend the total assessment even absent amendment. (Matter of Shubert Org. v Tax Commn., 60 NY2d 93; Matter of Altman & Co. v City of White Plains, 83 AD2d 879, 57 NY2d 904.) III. Appellant’s timely and proper service of its protests and petitions were sufficient to put respondent on notice that the total assessment was under attack. (Matter of Shubert Org. v Tax Commn., 60 NY2d 93; Matter of Rokowsky v Finance Administrator, 41 NY2d 574; Grant Co. v Srogi, 52 NY2d 496.) IV. Only the total assessment may be viewed. The lower court’s erroneous conclusion that two reviewable assessments exist led it to misconstrue Grant Co. v Srogi and Matter of City of Little Falls v Board of Assessors in denying appellant’s motion. (Matter of Shubert Org. v Tax Commn., 60 NY2d 93; People ex rel. Harvey Improvement Co. v Berry, 229 App Div 565.)

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for respondents.
    Petitions in tax assessment review proceedings cannot be amended to add a demand for reduction in building assessments when only land assessments were protested. (Matter of City of Little Falls v Board of Assessors, 68 AD2d 734; Bergman v Horne, 100 AD2d 526; Matter of Sterling Estates v Board of Assessors, 104 AD2d 599; Grant Co. v Srogi, 52 NY2d 496; Matter of Altman &. Co. v City of White Plains, 83 AD2d 879, 57 NY2d 904; Farash v Smith, 83 AD2d 785.)
   OPINION OF THE COURT

Simons, J.

Petitioner is the owner of real property in Valley Stream, New York, known as the Green Acres Shopping Center. It has instituted several proceedings pursuant to Real Property Tax Law article 7 seeking a reduction in the land assessments on the several parcels making up the shopping center property for the tax years 1967/1968 through 1977/1978. In 1982 it moved to amend the petitions requesting, along with other relief, permission to allege error in the assessed value of lots not previously protested and in the assessed value of improvements on lots that had been protested. Special Term denied that relief, holding that it lacked jurisdiction to permit amendment of the petitions to add a challenge to lot or improvement assessments which had not been protested previously during the statutory period for administrative review. The Appellate Division affirmed, with one judge dissenting (104 AD2d 599). On this appeal petitioner presses only the court’s ruling denying amendment to add a challenge to the assessed value of the improvements. The issue is whether the court may amend petitions alleging error in the assessed value of land only, based on protests similarly limited, to permit petitioner to add to them requests for reductions in unprotested assessments on the improvements. Petitioner also seeks amendment of the ad damnum clauses to reflect the reduction sought because of the challenge to the assessments on the improvements.

There should be an affirmance. There is a clear distinction between a motion to amend a petition to correct or clarify misstatements or misjudgments with respect to property duly protested and before the court (see, Grant Co. v Srogi, 52 NY2d 496) and a motion to amend a pleading, in this case as much as 15 years after the time to protest has passed, to permit new and different relief for an injury not previously protested or asserted in the petition. Grant and similar decisions permit amendment in the former case but not in the latter. In this case, petitioner sought to amend its pleadings to obtain new and different relief based upon injuries not previously protested. The court was without authority to grant that amendment (see, Matter of City of Little Falls v Board of Assessors, 68 AD2d 734, 738-740; see also, Matter of City of Albany v Assessors of Town of Coeymans, 253 App Div 436; cf. People ex rel. Long Is. R. R. Co. v State Bd. of Tax Commrs., 231 NY 221).

It is scarcely necessary to recite the importance of the assessment process to the fiscal operation of municipalities. Real property taxation provides the major source of municipal revenues and departmental appropriations are necessarily dependent on the funds available. The share which each taxpayer must contribute to support these expenses varies with the assessment placed on his property. Thus, the taxpayer and the municipality have a palpable interest in the amount and accuracy of individual assessments and the municipality has an additional incentive to resolve disputes concerning them as promptly as possible so that the roll may be stabilized and tax rates established (see generally, Lee and LeForestier, Review and Reduction of Real Property Assessments § 1:01, at 1 [I960]). To that end the Legislature has imposed detailed requirements on the assessors to conduct an orderly assessment process and specific conditions on the procedure by which aggrieved taxpayers obtain administrative and judicial relief. The responsibility rests upon the assessors to investigate and establish a proper roll, but once it is complete it is presumed to be accurate and free of error. If the taxpayer contends otherwise, then the burden is upon him to explain why his property is unfairly valued so that corrections can be made. The review and adjustment process, if adjustment is appropriate, permits the assessors to close the tax roll and establish the tax rate with some confidence that the revenues produced by the levy will be sufficient to meet budget requirements. To facilitate their determination of protests and correction of the roll, the assessors may require the taxpayer to testify before them and submit evidence of value (Real Property Tax Law § 525 [2]; Matter of Grossman v Board of Trustees, 44 AD2d 259, 263). Manifestly, this administrative review procedure is not intended to be an idle exercise. It is designed to seriously address claimed inequities and adjust them amicably if it is possible to do so. If the procedure is to work at all, and it is important that it should to limit litigation in these postHellerstein days of widespread revaluation (see, Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1), it is essential that sufficient facts detailing the taxpayer’s complaint be presented to the assessors so that realistic efforts at adjustment can be made. Not incidentally, the grievance process also permits the municipality to determine the nature of the taxpayer’s claim and narrow the area of dispute if the claim does result in litigation (cf. General Municipal Law § 50-e et seq.). An action seeking judicial review of the assessment as finally fixed is barred, however, if the proceeding is not filed within 30 days after the roll becomes final (Real Property Tax Law § 702 [2]; Nassau County Administrative Code §§ 6-17.0, 6-17.2, 6-17.3; see, Matter of Mayflower Realty Corp. v Tax Commn., 14 NY2d 640; People ex rel. Northchester Corp. v Miller, 288 NY 163).

Because of the important purposes to be served by administrative review, the Legislature has specified that protest is a condition precedent to a proceeding under Real Property Tax Law article 7 by providing that a petition seeking review "must show that a complaint was made in due time to the proper officers to correct such assessment” (Real Property Tax Law § 706 [2]). Failure to comply with that requirement requires dismissal of the aggrieved taxpayer’s petition (Matter of Raer Corp. v Village Bd. of Trustees, 78 AD2d 989; see also, Matter of City of Little Falls v Board of Assessors, 68 AD2d 734, 738-740, supra; Matter of City of Albany v Assessors of Town of Coeymans, 253 App Div 436, supra; compare, Matter of Rokowsky v Finance Administrator, 41 NY2d 574, 577).

The contents of the protest are set forth in the Real Property Tax Law. At all times relevant to this appeal, section 512 (1) required complainants to file with the Board of Assessors "a statement * * * specifying the respect in which the assessment complained of is illegal, erroneous or unequal” (emphasis added). Similarly, section 706 required that "[a] proceeding to review an assessment shall be founded upon a petition duly verified setting forth that the assessment is illegal, specifying the grounds of the alleged illegality, or if erroneous by reason of overvaluation, stating the extent o/such overvaluation, or if unequal in that the assessment has been made at a higher proportionate valuation than the assessment of other real property on the same roll by the same officers, and stating that the petitioner is or will be injured thereby” (Real Property Tax Law § 706; emphasis added). In short, the taxpayer must tell the assessors what assessment he protests and why it is wrong.

The petitioner in this case complained only of the overvaluation of its land, specifically limiting the protest in two places on the application to land assessments. Although the form contained printed questions addressed to the value of the improvements, there was no suggestion in petitioner’s answers to those questions that the assessed value of the improvements were disputed. Manifestly, the improvements constituted the greater part of the claims, and it was futile for the parties to go through the adjustment process without petitioner acknowledging that it intended to claim error with respect to them. According to Special Term’s calculations, if the requested relief is granted it would result in a 75% reduction in the total assessment, and a 92% reduction in the building assessment, whereas the original protest and pleadings requested only a 14% reduction in total assessment based upon alleged errors in the assessments of the land. Notwithstanding petitioner’s clear specification that it limited its protest to "land only”, counsel asserts that the error in failing to challenge the improvement assessments resulted from oversight. It appears from the record, however, that some of petitioner’s original protests did challenge both land and improvements. Inasmuch as petitioner failed to protest the improvements on the lots here in question, the court was without authority to permit amendment of the petitions to add them.

Recent decisions liberalizing pleading requirements, which petitioner relies on, are inapposite. We have permitted amendment of a petition after the Statute of Limitations has run if the change corrects a defect in form rather than adds a matter of substance because the taxpayer’s right to review should not be defeated by technicalities (see, Grant Co. v Srogi, 52 NY2d 496, 513, supra; Matter of Great E. Mall v Condon, 36 NY2d 544; see also, Bergman v Horne, 100 AD2d 526; Matter of Batavia Enters. v Assessor of Town of Batavia, 72 AD2d 912). An application to add unprotested property, either lots or improvements, to a petition seeking review of the assessment of selected lots of this multimillion dollar shopping center hardly falls within the classification of a technical or unsubstantial error, however. Nor is there any basis to hold that because the petitioner challenged the land valuation, thus requiring the county to defend the entire assessment, respondent received adequate and actual notice of petitioner’s dissatisfaction with the improvement valuations as well. It is not enough to protest; the nature of the grievance must be fairly particularized. When petitioner’s protests indicated the challenge was to land only, respondent could reasonably rely on petitioner’s apparent waiver of any claim concerning the assessment of the improvements and treat them as conceded.

Finally, petitioner contends that the lower courts’ decisions in this case were premised on erroneous conclusions of law, namely that two reviewable assessments, one for land and one for improvements, were at issue. It claims that the only subject for judicial review is the propriety of the total assessment and thus the courts erred in finding petitioner had implicitly conceded the valuation of the improvements. As we recently explained, however, "[i]n the process of the review of the total assessments the courts are authorized and may be expected to make separate factual determinations as to the value properly to be assigned to the land and the value properly to be assigned to the building * * * These are factual findings to be made on the basis of the proof in the record * * * the only restriction on the judicial determination is that the total assessment it fixes cannot exceed the total assessment under review” (Matter of Shubert Org. v Tax Commn., 60 NY2d 93, 97). A factual determination concerning the value of petitioner’s improvements, therefore, could properly be based on the county’s assessment of value as impliedly accepted by the petitioner. Such implied acceptance operates much like a stipulation of facts. Thus, the fixing of the buildings’ value at that figure assessed by the county was not error as a matter of law (cf. Matter of Shubert Org. v Tax Commn., supra, at p 97).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Wachtler

(dissenting). Because I believe the amendment to the petition cannot, under any rationale, be considered jurisdictional, I respectfully dissent. It is conceded that the requested amendment would create no prejudice to the assessing authority. This, coupled with the rules of modern pleading, which allow liberal amendments absent prejudice, as demonstrated by our recent precedents, would seem to compel the granting of the amendment sought.

Grant Co. v Srogi (52 NY2d 496) controls. There, we held "that where the evidence establishes a value lower than that alleged in the petition, a court can reform the petition to conform with the proof and order the appropriate reduction” (52 NY2d, at p 513). In reaching that conclusion, a majority of our court considered the overriding purpose of tax certiorari proceedings to carry out the legislative mandate that property not be assessed in excess of full value, and held that such considerations outweigh slavish adherence to technical rules of pleading.

We more recently reached a similar conclusion in a nontax certiorari context, noting that one of the main purposes of the adoption of the CPLR, the provisions of which relating to amendment of pleadings control the present proceeding (cf. CPLR 103 [b]; RPTL 700 [2]), was to liberalize the former practice. We concluded that "in the absence of prejudice to the defendant, a motion to amend the ad damnum clause, whether made before or after the trial, should generally be granted” (Loomis v Corinno Constr. Corp., 54 NY2d 18, 23, rearg denied 55 NY2d 801). In the present case, a fortiori, where the trial has not begun, the denial of the motion absent any claim of prejudice constituted an abuse of discretion.

Judges Jasen, Alexander and Titone concur with Judge Simons; Chief Judge Wachtler dissents and votes to reverse in a separate opinion in which Judges Meyer and Kaye concur.

Order affirmed, etc.

      . In 1982 a comprehensive amendment of the statute was undertaken and the provisions relating to administrative review collected in title 1-A (L 1982, ch 714, § 5). The revision was intended to clarify the provisions of the statute and, among other things, "lighten the burden of assessors” (1982 NY Legis Ann, at 237). The pertinent language of section 512 (1) is now found in section 524 (3) and provides: "3. A complaint with respect to an assessment shall be on a form prescribed by the state board and shall consist of a statement specifying the respect in which the assessment is excessive, unequal or unlawful * * * and the reduction in assessed valuation * * * sought.”
      Section 706 was also amended in 1982 without change in meaning (L 1982, ch 714, §13).

      . Inasmuch as each year’s assessment is a new assessment, petitioner may protest the improvement assessments in future years (Matter of Woolworth Co. v Tax Commn., 20 NY2d 561).


author: Kaye, J.

text:
    The People of the State of New York ex rel. Saul Vega, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants. The People of the State of New York ex rel. Joseph Corcoran, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Brother Andre Porter, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Handel Semper, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Appellant. In the Matter of Wesley Primo, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Edward Nesmith, Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Appellants.
    Argued September 11, 1985;
    decided October 15, 1985

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Martin A. Hotvet, Robert Hermann and Peter H. Schiff of counsel), for appellants.
    I. Reliance in these cases upon only the written misbehavior reports satisfies the substantial evidence rule because the circumstances, including the simpleness of the facts and the inmates’ sparse defense, support the conclusion that a responsible person could rely upon the reports. (Wolff v McDonnell, 418 US 539; Matter of Amato v Ward, 41 NY2d 469; Matter of Jones v Smith, 101 AD2d 705; Matter of Gonzales v LeFevre, 105 AD2d 909; Matter of Garcia v LeFevre, 102 AD2d 1004, 64 NY2d 1001; Matter of Eagle v Paterson, 57 NY2d 831; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Brown v Ristich, 36 NY2d 183; Matter of Stork Rest. v Boland, 282 NY 256; Matter of Miller v Kling, 291 NY 65.) II. Reliance upon misbehavior reports did not violate due process. (Wolff v McDonnell, 418 US 539; Baxter v Palmigiano, 425 US 308; Jackson v Carlson, 707 F2d 943; Hewitt v Helms, 655 F2d 487, 459 US 460, 712 F2d 48; Clutchette v Procunier, 497 F2d 809, 510 F2d 613; LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583; Mathews v Eldridge, 424 US 319; People ex rel. McGee v Walters, 62 NY2d 317; Matter of Amato v Ward, 41 NY2d 469; Wilkinson v Skinner, 34 NY2d 53.)

      Leigh E. Anderson and Norman P. Effman for respondents.
    I. Minimal due process requires evidence more probative than a report of misbehavior before a finding of guilt and the imposition of penalties maybe reached. (Matter of Amato v Ward, 41 NY2d 469; Matter of Gross v Henderson, 79 AD2d 1086, 53 NY2d 605; People ex rel. McGee v Walters, 62 NY2d 317; People ex rel. Menechino v Warden, 27 NY2d 376; People ex rel. Jelich v Smith, 105 AD2d 1125, 64 NY2d 606; People ex rel. France v Coughlin, 99 AD2d 599; Hewitt v Helms, 459 US 460; Wolff v McDonnell, 418 US 539.) II. A written report of misbehavior does not constitute probative evidence of guilt. (Matter of Garcia v LeFevre, 102 AD2d 1004, 64 NY2d 1001; Matter of Burgos v Coughlin, 108 AD2d 194.) III. An inmate housed in punitive confinement may rely upon habeas corpus to litigate the validity of the disciplinary proceeding that placed him there. (People ex rel. Brown v Johnston, 9 NY2d 482; Preiser v Rodriguez, 411 US 475.)
   OPINION OF THE COURT

Kaye, J.

These six appeals involving prison disciplinary hearings put before us the question whether, consistent with the State law requirement of "substantial evidence” for administrative determinations and the Federal constitutional requirement of due process, written misbehavior reports can serve as the evidentiary basis for determinations that inmates violated institutional rules. We answer that question in the affirmative. In the circumstances presented, the disciplinary determinations satisfy both State and Federal requirements.

The facts with respect to the six determinations are summarized below.

SAUL VEGA

On September 23,1983, after a superintendent’s hearing at Attica Correctional Facility, respondent Vega was found guilty of violating an institutional rule prohibiting possession of "contraband classified as a weapon,” and committed for 30 days to a Special Housing Unit. This determination was based on a misbehavior report dated September 16, 1983 and delivered to Vega the following day, signed by Correction Officer Stelmaszyk, indorsed by two other employee witnesses and "initialed” by Sergeant Charlanow. According to the report, Stelmaszyk was checking Vega’s personal property with a metal detector, incident to his transfer to a Special Housing Unit, when he received a reading that there was metal in Vega’s Bible. The officer found half a razor blade stuck deeply between the pages, and then the other half embedded in the binding between two pages.

On September 22, Vega met with a correction counselor (an "assistant”) assigned to assist him with respect to the hearing, and requested no witnesses. At the hearing held the following day Vega was advised about the procedure, including the fact that he could have witnesses on his behalf, and the misbehavior report was then read to him. When asked if he admitted or denied the charge, Vega responded "Oh, I deny,” and said he had nothing further to say. He asked for no witnesses to be called. Vega was found guilty of the charge and the penalty was imposed.

Vega’s habeas corpus petition was dismissed on the ground that the written report constituted substantial evidence in support of the disposition, but the Appellate Division, after converting the proceeding to one under article 78, reversed and granted the petition.

JOSEPH CORCORAN

After a superintendent’s hearing at Attica, by determination dated October 7, 1983, respondent Corcoran was found guilty of violating institutional rules in that he refused to obey a direct order and failed to comply with count procedures. The penalty imposed was 60 days keeplock, loss of privileges, and 60 days loss of good time. The determination was based on a misbehavior report dated October 4, 1983 and delivered to Corcoran the next day, signed by Correction Officer Knapp, indorsed by one employee witness and initialed by Sergeant Ellsworth. According to Knapp, when taking a head count he found Corcoran in bed, ordered him to stand for the count, and Corcoran refused.

Corcoran refused the assignment of an assistant in preparation for the hearing. At the hearing October 7, Corcoran was advised about the procedure, including the fact that he could have witnesses on his behalf, but said he did not wish to call any. After Knapp’s misbehavior report was read Corcoran pleaded not guilty, adding that he was never given a direct order: "So, its my word against the officer’s word. I say I stood for the count, they say I didn’t. I’m not guilty.” The charges were sustained and the penalty imposed.

Relying on its decision in Vega, Supreme Court dismissed Corcoran’s habeas corpus petition challenging the determination. The Appellate Division converted the proceeding to one under article 78, reversed and granted the petition, concluding there was no substantial evidence to support the determination.

BROTHER ANDRE PORTER

As the result of a disciplinary hearing held July 19,1983 at Attica, respondent Porter was found guilty of violating institutional rules prohibiting refusal to obey a direct order, to obey all posted rules and regulations, and to produce his ID card, and penalized 25 days confinement without privileges. The determination was based upon a misbehavior report dated July 17, 1983 and delivered to Porter the next day, signed by Correction Officer Donaldson and initialed by Sergeant "VJK.” According to the report, while escorting a company back from the mess hall, Donaldson saw and heard Porter make an obscene comment, whereupon he requested his ID card. Porter twice refused, and refused to give his cell block or step to the back of the company. Donaldson followed Porter to his cell, again asked for his ID card, and was again refused. Porter refused the aid of an assistant in preparation for the hearing. At the hearing, he was advised about the procedure, including the fact that he could have witnesses on his behalf, but he asked for no witnesses to be called. He pleaded not guilty and denied the substance of the report, explaining that Donaldson was escorting his company back from the mess hall, stopped the line twice, got angry and requested the first 15 inmates’ ID cards —including his, which he refused to produce — and was then told by Donaldson that he would do nothing about it. The charges were sustained and the penalty imposed.

Supreme Court denied Porter’s article 78 petition finding sufficient admissions of at least part of the charges to warrant the punishment imposed. The Appellate Division reversed and granted the petition.

HANDEL SEMPER

Respondent Semper was, after a disciplinary hearing at Attica on July 21,1983, found guilty of violating institutional rules prohibiting threats, harassment and refusal to obey a direct order, and penalized 20 days keeplock without privileges. The determination was based on a misbehavior report dated July 18 and delivered to Semper the next day, signed by Correction Officer S. Rissinger, indorsed by two employee witnesses and initialed by a Sergeant. According to the report, while returning to vocational school Semper refused Kissinger’s order to keep up with the company and, when the officer spoke with him about lagging behind Semper responded with obscenities and told the officer to take him back to the block (which was done). Semper, en route, squared off in a fighting stance, put up his arms, and threatened to hit the officer. Ultimately Semper complied with the order to put down his hands and return to the block, threatening along the way.

Semper refused the assignment of an assistant in preparation for the hearing. At the hearing he was advised about the procedure, including the fact that he could have witnesses on his behalf, but requested none. Semper pleaded not guilty, contending that he had complied with Kissinger’s directions, that Kissinger accused him falsely of going back to the block or refusing to go to school, and that they began arguing — a continuation of the fact that Kissinger had been "on [his] case” for days. Semper acknowledged raising his hands as they walked, but denied squaring off. The hearing officer dismissed a charge of interference, found respondent guilty of the other charges, and imposed a penalty.

Supreme Court converted respondent’s habeas corpus petition to one under article 78 and vacated the disposition, concluding that it was error to rely solely on the misbehavior report. The Appellate Division affirmed, and we granted leave to appeal.

WESLEY PRIMO

Following a disciplinary hearing on September 15, 1983, respondent Primo was found guilty of refusing to obey a direct order and interfering with an employee, and penalized 15 days confinement to cell without privileges. The determination was based on a misbehavior report dated September 10, 1983 and delivered to Primo September 12, signed by Correction Officer K. Callaghan and indorsed by two employee witnesses. According to the report, while Callaghan was attempting tó frisk him, Primo, contrary to orders, repeatedly took his hands off the wall. When Callaghan escorted him back to his cell, Primo was very loud and made an obscene comment.

Primo refused the assignment of an assistant in preparation for the hearing. At the hearing, he was advised of the procedure, including the fact that he could have witnesses on his behalf, and he pleaded not guilty. Primo contended that he did not take his hands off the wall, and although he did turn his head around several times during the frisk, he did so because there were "about 8 or 10 officers” behind him. He denied that Callaghan escorted him back to his cell, and the use of profanity. At Primo’s request, the hearing officers in respondent’s presence questioned two inmate witnesses, who stated that they were not present during the frisk but saw respondent returning to his cell quietly and without escort. The hearing officers, finding the frisk had been completed, dismissed a charge of noncompliance with frisk procedures but found respondent guilty of the two other charges based on the misbehavior report and respondent’s admission that he kept turning around, and imposed the penalty.

Supreme Court granted respondent’s article 78 petition and expunged the determination. The Appellate Division affirmed, and we granted leave to appeal.

EDWARD NESMITH

By determination dated September 28,1983, respondent Nesmith after a disciplinary hearing at Attica was found guilty of refusing to obey a direct order and failure to comply with count procedures, and penalized 30 days confinement to cell without privileges. The determination was based upon a misbehavior report dated September 25,1985 and delivered to Nesmith the next day, signed by Correction Officer L. Wilson and Sergeant "PEE.” According to the report, Nesmith was in bed during morning count and refused Wilson’s order to stand for the count. At the hearing, Nesmith pleaded not guilty. He admitted he had not heard the bell and was sleeping when the officer came by his cell, but contended that when the officer shook the bars, he got up. Nesmith met prior to the hearing with a correction counselor to assist in preparation, and requested no witnesses. At the hearing, he was advised about the procedure, including his right to call witnesses. Nesmith stated that he declined to call witnesses because no one else could have seen him in his cell. The charges were sustained and the penalty imposed.

Supreme Court granted respondent’s article 78 petition and expunged the determination. The Appellate Division affirmed, and we granted leave to appeal.

In all six cases respondents claim that the disciplinary determinations cannot stand, first, because under State law the misbehavior reports do not constitute sufficient evidence for an administrative determination and, second, because the due process clause of the Federal Constitution requires the fact finder to hear testimony. Both contentions are without basis.

THE REGULATIONS IN ISSUE

Central to the resolution of these appeals is a review of the regulations governing prison disciplinary proceedings.

In June 1983 the Department of Correctional Services, in a comprehensive reform, supplanted its two-tier disciplinary system with a system of three levels of hearings: Tier I, a "violation hearing” to be held when the misbehavior, if substantiated, would warrant a penalty of loss of recreation and other privileges of 13 days or less (7 NYCRR 251-2.2 [b] [1]); Tier II, a "disciplinary hearing” to be held when the misbehavior, if substantiated, would warrant a penalty of confinement to cell or loss of privileges of 30 days or less (7 NYCRR 251-2.2 [b] [2]); and Tier III, a "superintendent’s hearing”, when the penalty for the misbehavior would exceed that which may be imposed at a disciplinary hearing (7 NYCRR 251-2.2 [b] [3]). Only Tiers II and III are involved in the present appeals. According to appellant, there are approximately 72,000 Tier II and Tier III hearings annually.

Under the former regulations, an adjustment committee initially handled all disciplinary cases (see, former 7 NYCRR part 252 [repealed eff June 15,1983]). But if the adjustment committee determined that close confinement for longer than seven days was required, the matter was referred for a superintendent’s proceeding, at which the inmate was afforded the right to be apprised of the charge, and to have documentary evidence and statements of witnesses presented to the presiding officer (see, Matter of Amato v Ward, 41 NY2d 469, 473). The regulations further required the presiding officer to "interview one or more employees who witnessed or have direct knowledge of the incident” (see, former 7 NYCRR 253.4 [c] [repealed eff June 15,1983]).

The new regulations, enacted following Federal litigation (see, Powell v Ward, 392 F Supp 628, mod and affd 542 F2d 101; 487 F Supp 917, mod and affd 643 F2d 924, cert denied 454 US 832), continued many of these procedures. At both Tier II (7 NYCRR 253.3) and Tier III (7 NYCRR 254.3) inmates must be served with a formal charge in the form of a written misbehavior report, made and signed by an employee who observed the incident, describing with specificity the alleged incident and rule violated; inmates must be advised that no statement they make may be used against them in a criminal proceeding and that they are permitted to call witnesses on their behalf "provided that doing so does not jeopardize institutional safety or correctional goals” (7 NYCRR 251-3.1,251-1.4 [b]). Inmates may be permitted to select an employee from a list as an assistant, to explain the charges, interview witnesses, obtain documentary evidence or written statements and report back to the inmate (see, n 1, supra).

The inmate must promptly, but no less than 24 hours following delivery of the misbehavior report, be afforded an in-person hearing (7 NYCRR 251-5.1, 253.6 [a]; 254.6 [a]) before impartial hearing officers (7 NYCRR 253.1,254.1). At the hearing, which must be recorded (7 NYCRR 253.6 [b]; 254.6 [b]), the inmate is entitled to call witnesses on his behalf, unless the presiding officer determines that their testimony is immaterial, redundant, or would jeopardize safety or institutional goals (7 NYCRR 253.5 [a]; 254.5 [a]). The officer must record any such determination and the specific reasons in writing and present it to the inmate (7 NYCRR 253.5 [a]; 254.5 [a]). Promptly following the hearing, the inmate must be given a statement in writing setting forth the disposition and, if the inmate is found guilty, the evidence relied upon and the reasons for any penalty imposed (7 NYCRR 253.7 [c]; 254.7 [c]).

The new regulations do not, however, continue the requirement that the hearing officer interview the employees who witnessed or have direct knowledge of the incident.

THE MISBEHAVIOR REPORTS HERE CONSTITUTE "SUBSTANTIAL evidence”

Viewing each record as a whole, we conclude that the misbehavior reports in all six cases formed a sufficient basis to support the disciplinary determinations.

The governing standard under State law is no longer the "legal residuum rule,” requiring some minimum quantity of admissible evidence to support an administrative determination. Rather, the question is whether the determination is supported by "substantial evidence” (see, CPLR 7803 [4]; Matter of Eagle v Paterson, 57 NY2d 831, 833; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180). Hearsay is admissible in such a proceeding, and if sufficiently relevant and probative may constitute substantial evidence. While the quantum of evidence that rises to the level of "substantial” cannot be precisely defined, the inquiry is whether "in the end the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs.” (National Labor Relations Bd. v Remington Rand, 94 F2d 862, 873 [Hand, J.], cert denied 304 US 576.) Put another way, substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180, supra.)

We conclude that the determinations here are supported by substantial evidence. In each case, the misbehavior report describes, with specificity, an incident which the author claims to have witnessed, and the rule allegedly violated. Each report is dated the same day as the incident, signed by its author, and indorsed or initialed by one or more other correction officers. Respondents were offered, and in two of the six cases accepted, assistants to aid in their preparation for the hearing. No witnesses were requested in advance. At the hearings, each respondent was advised that he could call witnesses on his behalf. One of the six asked that witnesses be called, the others did not. Although all respondents pleaded not guilty, in each instance the response was little more than a denial of the charge. No respondent offered a defense that suggested the need for additional inquiry — for example, a showing that he had not been in the area or had not had the claimed contact with the charging officer. Vega refused to say anything in his defense, and Porter admitted that he had refused the order to produce his identification card, the infraction for which he was disciplined. Similarly, Semper and Primo confirmed facts in the misbehavior reports. In the Corcoran and Nesmith cases, the issue was simple: the officers reported they had refused to stand for the morning count, and they said they had stood. It was for the fact finder to decide whether to credit the correction officers’ statements that they refused to stand.

In such circumstances, the written reports were sufficiently relevant and probative to constitute substantial evidence supporting the determinations that respondents violated institutional rules.

FEDERAL CONSTITUTIONAL REQUIREMENTS ARE SATISFIED

Respondents next contend that disciplinary determinations based on written misbehavior reports are necessarily a denial of due process of law. Here too we conclude that respondents’ argument must fail: given the facts of each case and the procedures afforded by the applicable regulations, respondents were not denied due process.

Respondents urge that the due process requirements identified in Wolff v McDonnell (418 US 539) — that an inmate faced with loss of good time or close confinement be apprised of charges in writing and that a hearing subsequently be held on those charges —imply that correctional authorities at the hearing must present evidence to support the charges, evidence which must consist of something other than the charging document itself. But the assumption is mistaken that the hearing contemplated by Wolff requires the correction authorities to present a case, which the inmate can then probe or test. The hearing mandated by Wolff h.as a far more limited purpose: it allows an inmate facing disciplinary proceedings "to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals” (Wolff v McDonnell, 418 US 539, 566, supra). There is no right of confrontation or cross-examination, and consequently no requirement that the disciplinary authority call any adverse witnesses, including the charging party, to testify at the hearing (Baxter v Palmigiano, 425 US 308, 322, and n 5; Wolff v McDonnell, 418 US 539, 567-568, supra).

Nor does due process of law require that disciplinary board members interview the officers who wrote the misbehavior reports.

In determining how much process is due, we must weigh the inmate’s interest, the State’s interests, and the value of the proposed procedural requirements (Hewitt v Helms, 459 US 460, 473; Mathews v Eldridge, 424 US 319, 335). Respondents’ private interests are "of considerable importance” (Wolff v McDonnell, 418 US 539, 561, supra). Although close confinement involves only transfer "from one extremely restricted environment to an even more confined situation” (Hewitt v Helms, 459 US 460, 473, supra), at both Tier II and Tier III the inmate may face loss of good time, which could affect length of the prison term, as well as "the stigma of wrongdoing or misconduct,” which could affect parole (Hewitt v Helms, 459 US 460, 473, supra).

The State’s interests, however, are also weighty. "The operation of a correctional institution is at best an extraordinarily difficult undertaking”, and "[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits” (Wolff v McDonnell, 418 US 539, 566, supra). Given the tens of thousands of Tier II and Tier III hearings held each year in New York, it obviously would impose a considerable administrative burden to require the presiding officer in each case to contact and interview the charging officer, as well as employees who witnessed or had direct knowledge of the incident (see, Richardson v Perales, 402 US 389, 406; cf. Wolff v McDonnell, 418 US 539, 574, supra). Moreover, the State has legitimate penological interests in seeing that disciplinary determinations are made quickly, both for security and rehabilitative reasons. "Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances” (Superintendent of Mass. Correctional Inst. v Hill, 472 US—, 105 S Ct 2768). The primary business of prisons is the supervision of inmates, and we should not lightly impose additional administrative burdens that would detract from the ability to perform that principal mission (see, Ponte v Real, 471 US—, 105 S Ct 2192).

As for the final factor in the balance — the value of the proposed procedure — it is apparent that in the cases before us the additional step would not have significantly increased the likelihood of accurate decision-making. No claim is made that hearing officers refused to consider any evidence respondents offered, or refused to call any witness they requested. In two of the six cases, portions of the charges asserted in the misbehavior reports were dismissed. Given the nature of the charges and responses there is little reason to believe that private interviews of the correction officers would have resulted in the dismissal of additional charges. Evaluating all the factors, we conclude that the hearing officers were not required by the Constitution to interview the charging officers. The requirements of due process are satisfied in this context when there is "some evidence” — "any evidence in the record that could support the conclusion reached by the disciplinary board” (Superintendent of Mass. Correctional Inst. v Hill, 472 US—, 105 S Ct 2768, 2774, supra). This standard, less stringent than a "substantial evidence” standard, was plainly satisfied in the cases before us (see, Superintendent of Mass. Correctional Inst. v Hill, 472 US—, 105 S Ct, at p 2776, n 3 [Stevens, J., concurring in part and dissenting in part], supra).

Accordingly, the orders in People ex rel. Vega v Smith and Peo ple ex rel. Corcoran v Smith should each be modified, without costs, by dismissing the converted proceeding and, as so modified, affirmed. The orders in Matter of Porter v Smith, Matter of Semper v Smith, Matter of Primo v Smith and Matter of Nesmith v Smith should each be reversed, without costs, and the petitions dismissed.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Alexander and Titone concur.

In Matter of Semper v Smith, Matter of Primo v Smith, Matter of Nesmith v Smith and Matter of Porter v Smith: Orders reversed, without costs, and petitions dismissed.

In People ex rel. Vega v Smith and People ex rel. Corcoran v Smith: Orders modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . For certain hearings, the regulations provide that where inmates are illiterate, non-English speaking or closely confined, or the issues are complex, the inmate may select an employee from a list as an assistant (7 NYCRR 251-4.1, 253.4, 254.4). The assistant’s role is to explain the charges, interview witnesses, obtain documentary evidence or written statements, and report back to the inmate (7 NYCRR 251-4.2).

      . While respondents contend that the new regulations eliminate the former requirement that an employee with actual knowledge of the incident be called to the hearing, in fact the superseded regulations required only that the presiding officer interview employees who witnessed or had direct knowledge of the incident (see, former 7 NYCRR 253.4 [c] [repealed eff June 15,1983]). There was no requirement that such an interview take place at a hearing.

      . It is clear that the hearing officer has no duty to challenge or cross-exam-inc anyone, including the charging officer. In the District of Columbia, where inmates are represented at WoZyf hearings by law student interns, the hearing officer initially reads and may rely on the disciplinary report. The inmate in his defense may then call the writer of the report to testify. "Most, clients are advised, however, not to exercise their right because the writer, more often than not, will only repeat the description of the incident given in his report, from which he is allowed to read at the hearing” (Babcock, Due Process in Prison Disciplinary Proceedings, 22 BCL Rev 1009, 1050).

        . We do not reach respondent Corcoran’s argument that it was error to convert his habeas corpus petition to an article 78 proceeding, since that argument could not in any event result in an affirmance of the Appellate Division order (CPLR 5501 [a] [1]).


author: Jasen, J.

text:
    In the Matter of Conduit and Foundation Corporation, Respondent-Appellant, v Metropolitan Transportation Authority et al., Appellants-Respondents.
    Argued September 11, 1985;
    decided October 17, 1985

      POINTS OF COUNSEL

      Florence Dean, Albert C. Cosenza, Walter J. McCarroll and Rosemary A. Moukad for appellants-respondents.
    I. The Authority’s procedure in meeting with every bidder after bid opening was a lawful exercise of its powers. (Matter of Fischbach & Moore v New York City Tr. Auth., 79 AD2d 14, 53 NY2d 604; Gerzof v Sweeney, 16 NY2d 206; Varsity Tr. v Saporita, 71 AD2d 643, 48 NY2d 767; Matter of Kayfield Constr. Corp. v Morris, 15 AD2d 373; Depot Constr. Corp. v City of New York, 46 NY2d 859; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187.) II. It was inappropriate for the majority of the court below to substitute its judgment for that of the Authority. (Matter of Kayfield Constr. Corp. v Morris, 15 AD2d 373; Abco Bus Co. v Macchiarola, 75 AD2d 831, 52 NY2d 938, 454 US 822; Matter of Progressive Dietary Consultants v Wyoming County, 90 AD2d 214; New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 64 NY2d 233; Molloy v City of New Rochelle, 198 NY 402; Carroll-Ratner Corp. v City Manager of New Rochelle, 54 Misc 2d 625, 36 AD2d 795; Matter of Tri-State Aggregates Corp. v Metropolitan Transp. Auth., 108 AD2d 645; Matter of Delta Chem. Mfg. Co. v Department of Gen. Servs., 81 AD2d 507; Matter of Law Bros. Contr. Corp. v O’Shea, 79 AD2d 1075.) III. Even if the postbid communications between Authority engineers and the bidders were improper, the court should not have directed an award. (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Chinatown Apts. v New York City Tr. Auth., 100 AD2d 824; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88; Luka v New York City Tr. Auth., 100 AD2d 323, 63 NY2d 667; Matter of Lisa v Board of Elections, 83 AD2d 949; Marchionne v New York State Dept. of Transp., 88 AD2d 655.) IV. The court below erred in drawing negative inferences from the papers alone and in denying the Authority’s application to supplement the record. (Matter of Cacchioli v Hoberman, 31 NY2d 287; Matter of Resco Equip. & Supply Corp. v City Council, 34 AD2d 1088; Riester v Town of Fleming, 32 AD2d 733; Ugarriza v Schmieder, 46 NY2d 471; Robinson v Strong Mem. Hosp., 98 AD2d 976; Citibank, N. A. v Dutka, 74 AD2d 520; Leider v 80 William St. Co. 22 AD2d 952.)

      Melvin J. Kalish and Lewis R. Lear for respondent-appellant.
    I. The decisions of the courts below directing an award to respondent are factually and legally sound and are clearly in the best interest of the public. (Matter of Fischbach & Moore v New York City Tr. Auth., 79 AD2d 14, 53 NY2d 604; Matter of Margrove, Inc.

      v Office of Gen. Servs., 51 Misc 2d 596, 27 AD2d 321, 19 NY2d 901; Matter of Baumann & Sons Buses v Board of Educ., 46 NY2d 1061; Matter of Delta Mfg. Chem. Co. v Department of Gen. Servs., 106 Misc 2d 617, 81 AD2d 507.) II. Appellants have violated the letter and spirit of the competitive bidding laws. (Matter of Carucci v Dulan, 24 AD2d 529; Riester v Town of Fleming, 32 AD2d 733; Matter of American Asphalt Distribs. v County of Otsego, 40 AD2d 571; Matter of Superior Hydraulic v Town Bd., 88 AD2d 404; Molloy v City of New Rochelle, 198 NY 402; Matter of Margrove, Inc. v Office of Gen. Servs., 51 Misc 2d 596, 27 AD2d 321, 19 NY2d 901; Matter of M. Cristo, Inc. v Office of Gen. Servs., 42 AD2d 481; Matter of Delta Chem. Mfg. Co. v Department of Gen. Servs., 106 Misc 617; Matter of Baumann & Sons Buses v Board of Educ., 46 NY2d 1061; Matter of Progressive Dietary Consultants v Wyoming County, 90 AD2d 214.) III. The authority cited by appellants in their brief does not support the argument that the decisions of the courts below should be reversed. IV. The arguments presented by appellants are not supported by the facts and circumstances of the instant case and are therefore without merit. V. The Transit Authority abused its discretion. Its actions were arbitrary and capricious and clearly contrary to the public’s best interest. VI. Public policy considerations dictate that the award be made to respondent as the responsible low bidder. The actions of the Transit Authority will undermine the integrity of the competitive bidding system. (Matter of Fischbach & Moore v New York City Tr. Auth., 79 AD2d 14.)
   OPINION OF THE COURT

Jasen, J.

The narrow issue presented on this appeal is whether the evidence on the record supports a holding that the Metropolitan Transportation Authority and the New York City Transit Authority acted unlawfully in rejecting all bids submitted in an initial round of bidding on a public works project.

The relevant facts are not in dispute. Respondents, the Metropolitan Transportation Authority and the New York City Transit Authority (Transit Authority), solicited bids for a public works contract for the massive rehabilitation of part of New York City’s subway system. Three bids were received, including that of petitioner, a joint venture, whose bid was the lowest and fell within the advertised estimated cost between $120 and $140 million. Shortly after opening the bids, the Transit Authority met with each of the three bidders for the stated purpose of determining why the prices submitted were as high as they were and whether the project costs might be reduced. Although the bidders were met separately, each was informed that the meetings with the others were taking place.

Subsequent to the meetings, the second lowest bidder advised the Transit Authority by letter that significant cost reductions were possible and suggested another meeting to discuss the possibility of preparing revised contract documents. Several days thereafter, it was petitioner that met again with the Transit Authority. Petitioner was informed that its bid, though the lowest, was far in excess of the revised estimated cost and that, therefore, all the bids might be rejected. Nevertheless, petitioner was told that it was deemed technically and financially qualified to undertake the project and, indeed, was afforded the opportunity to reduce its bid for consideration. Within the next two weeks, petitioner once again met with the Transit Authority and offered to reduce its bid price by two million dollars, a proportionately small amount. The reduction was deemed insufficient by the Transit Authority’s Chief Engineer who, on the following day, recommended that all the bids be rejected and that the contract, with modifications, be readvertised for a second round of bidding. The recommendation was adopted by the President of the Transit Authority and the three bidders were notified. Thereafter, the Transit Authority circulated a notice soliciting new bids for the project and indicating an estimated cost range between $100 and $120 million, $20 million lower than that originally advertised.

Petitioner commenced this article 78 proceeding seeking an injunction against a second round of bidding and a judgment directing respondents to award the contract to petitioner as the lowest responsible bidder. Special Term granted the petition concluding that the Transit Authority’s postbid communications with the three bidders, its revision of the advertised cost estimate and its purpose of obtaining bid prices lower than that originally received rendered the decision to reject all first round bids arbitrary and capricious. The Appellate Division agreed with Special Term, two justices dissenting, that the contract should be awarded to petitioner, but modified the judgment to reduce the contract price by two million dollars on the basis of petitioner’s prior offer to the Transit Authority to so lower its bid. The court held that the record demonstrates an "appearance of impropriety” on the part of the respondents which "might have” a detrimental effect "on the broad interest of the public in the entire public bidding process”. (111 AD2d, at p 234.) The two dissenters argued that the mere "appearance” of impropriety is not sufficient ground to disturb the decision of the Transit Authority absent a showing of actual favoritism, fraud or similar evil which competitive bidding is intended to prevent. We agree and now reverse the order below.

As this court has stated on prior occasion, the purpose of the laws in this State requiring competitive bidding in the letting of public contracts is "to guard against favoritism, improvidence, extravagance, fraud and corruption.” (Jered, Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 193; see also, Matter of Fischbach & Moore v New York City Tr. Auth., 79 AD2d 14, lv denied 53 NY2d 604.) These laws were not enacted to help enrich the corporate bidders but, rather, were intended for the benefit of the taxpayers. They should, therefore, be construed and administered "with sole reference to the public interest”. (10 McQuillin, Municipal Corporations § 29.29, at 302 [3d rev ed]; see also, Matter of Signacon Controls v Mulroy, 32 NY2d 410, 413.) This public interest, we have noted, is sought to be promoted by fostering honest competition in the belief that the best work and supplies might thereby be obtained at the lowest possible prices. (Jered Contr. Corp. v New York City Tr. Auth., supra, at pp 192-193; see also, Le Cesse Bros. Contr. v Town Bd., 62 AD2d 28, 31 [Simons, J.], affd 46 NY2d 960; Matter of Sweet Assoc. v Gallman, 36 AD2d 95, 99, affd 29 NY2d 902.)

Indeed, this policy is reflected explicitly in the statutory provisions which mandate that public work contracts be awarded "to the lowest responsible bidder”. (Public Authorities Law § 1209 [1]; General Municipal Law § 103 [1]; see also, General Municipal Law § 100-a.) Dishonesty, favoritism and material or substantial irregularity in the bidding process, which undermines the fairness of the competition, impermissibly contravene this public interest in the prudent and economical use of public moneys. (See, e.g., Gerzof v Sweeney, 16 NY2d 206; Le Cesse Bros. Contr. v Town Bd., supra; Matter of M. Cristo, Inc. v Office of Gen. Servs., 42 AD2d 481; Matter of Margrove, Inc. v Office of Gen. Servs., 27 AD2d 321, affd 19 NY2d 901; cf. People v Stephens, 71 NY 527.)

Nevertheless, where good reason exists, the low bid may be disapproved or, indeed, all the bids rejected. Neither the low bidder nor any other bidder has a vested property interest in a public works contract (see, Abco Bus Co. v Macchiarola, 75 AD2d 831, 833-834 [Hopkins, J., dissenting], revd 52 NY2d 938, cert denied 454 US 822; Depot Constr. Corp. v City of New York, 46 NY2d 859, 861; 10 McQuillin, supra § 29.77, at 413) and statutory law specifically authorizes the rejection of all bids and the readvertisement for new ones if deemed to be "for the public interest so to do” (Public Authorities Law § 1209 [1]; see also, General Municipal Law § 103 [1]; Matter of Carter v Blake, 63 AD2d 760, lv denied 45 NY2d 705). Although the power to reject any or all bids may not be exercised arbitrarily or for the purpose of thwarting the public benefit intended to be served by the competitive process (Matter of Fischbach & Moore v New York City Tr. Auth., supra; Matter of Carucci v Dulan, 24 AD2d 529), the discretionary decision ought not to be disturbed by the courts unless irrational, dishonest or otherwise unlawful. (Abco Bus Co. v Macchiarola, 52 NY2d 938, revg 75 AD2d 831, supra; Square Parking Sys. v Metropolitan Transp. Auth., 92 AD2d 782, appeal dismissed 59 NY2d 608; Matter of Carter v Blake, supra; 10 McQuillin, supra § 29.77, at 414.)

Moreover, it cannot be gainsaid that a realistic expectation of obtaining lower contract prices upon a second round of bidding constitutes a reasonable, bona fide ground for rejecting all first round bids and serves the public’s interest in the economical use of public moneys. (See, Orelli v Ambro, 41 NY2d 952; Matter of Tri-State Aggregates Corp. v Metropolitan Transp. Auth., 108 AD2d 645; Square Parking Sys. v Metropolitan Transp. Auth., supra; Matter of Law Bros. Contr. Corp. v O’Shea, 79 AD2d 1075; Matter of Knickerbocker Reporting v State Dept. of Public Serv., 78 AD2d 728, lv denied 52 NY2d 705; Matter of Carter v Blake, supra; cf. General Municipal Law § 100-a.) Nor is the decision to reject all bids rendered arbitrary and capricious solely on the basis of nondiscriminatory postbid changes in the contract specifications (see, Varsity Tr. v Saporita, 71 AD2d 643, affd 48 NY2d 767) or postbid communications with the individual bidders for the bona fide purpose of ascertaining how contract costs might be reduced (cf. Matter of Fischbach & Moore v New York City Tr. Auth., supra). Only upon a showing of actual impropriety or unfair dealing — i.e., "favoritism, improvidence, extravagance, fraud and corruption” (Jered Contr. Corp. v New York City Tr. Auth., supra, at p 193) — or other violation of the statutory requirements, can the decision to reject all bids and readvertise for a second round of bidding be deemed unlawful (cf. Gerzof v Sweeney, supra; Le Cesse Bros. Contr. v Town Bd., supra). Consequently, where the party challenging the decision does not satisfy the burden of making such a demonstration, that decision should remain undisturbed. (See, Janvey & Sons v County of Nassau, 60 NY2d 887, 889, revg 90 AD2d 807.)

Here, where the court below found only that the postbid activity of the Transit Authority created an "appearance of impropriety” and "cast a doubt” upon its fair dealing with the bidders, the respondents’ decision to seek a rebid ought not to have been disturbed. It may be true, as the majority at the Appellate Division found, that it would have been wiser for the Transit Authority to meet with all the bidders at the same time, instead of separately, in order to avoid the possible appearance of unfair dealing. Likewise, other bid interactions between the Transit Authority and certain bidders may have been more discreet. Nevertheless, as noted in the dissenting opinion of Justice Niehoff, absent some finding that the respondents had, in fact, engaged in some unfair or unlawful practice tainting the impartiality of the competitive bidding process, it was error to grant the petition.

The Transit Authority clearly was empowered to reject all the first round bids, and its expectation of obtaining lower bid prices upon readvertisement was a rational basis for deciding to do so. Petitioner failed to demonstrate that the respondents acted unlawfully with regard thereto or with regard to other postbid conduct. Consequently, the petitioner having neither requested to add to the record nor having sought a hearing on the facts (see, Siegel, NY Prac §§ 554, 556), but, instead, having chosen to rely solely on its documentary submissions which were insufficient to meet its burden, the petition should have been dismissed.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur.

On respondents’ appeal, order reversed, with costs, and petition dismissed. Petitioner’s cross appeal dismissed as academic.

      . Respondents substantially admitted the factual allegations contained in the article 78 petition, denying, however, the legal conclusions drawn therein. At Special Term, the parties relied solely upon their pleadings, documentary submissions and oral argument. No contention was made that the record before the court was insufficient and no request was made for an evidentiary hearing. (See, CPLR 409; Siegel, NY Prac § 556.)

      . Indeed, petitioner argues in its brief (Brief of "Respondent-Cross Appellant”, at 72) to this court that permitting respondents to do so at this point would be improper as there is no basis "now [to] complain that [Special Term] lacked sufficient pertinent evidence to make a decision.”