Skyline Credit Ride, Inc. v. Board of Elections OATH Index No. 878/12, mem. dec. (Feb. 28, 2012)

Skyline Credit Ride, Inc. v. Board of Elections OATH Index No. 878/12, mem. dec. (Feb. 28, 2012) Petition dismissed as untimely. The petitioner was late in submitting its Notice of Claim to the Comptroller. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS CONTRACT DISPUTE RESOLUTION BOARD In the Matter of SKYLINE CREDIT RIDE, INC. Petitioner - against - BOARD OF ELECTIONS Respondent MEMORANDUM DECISION FAYE LEWIS, Administrative Law Judge/Chair CHARLES AYES, AIA, Assoc. Dir. for Construction Review, Mayor s Office of Contract Services ROBERT D. LANG, ESQ., Prequalified Panel Member Presently pending before the Contract Dispute Resolution Board ( CDRB or the Board ) is the petition of Skyline Credit Ride, Inc. ( Skyline ), seeking a finding that it timely brought its claim against the New York City Board of Elections ( respondent ) for $118,581.74. Skyline submitted its petition on November 23, 2011, asking the Board to review the Comptroller s determination and find that the Comptroller s dismissal of the claim for untimeliness was unsupported. Respondent submitted its answer on January 19, 2012, and on January 30, Skyline made another submission which the Board accepted over respondent s objection. For the reasons set forth below, the Board finds petitioner s claims are time-barred and the petition is dismissed. BACKGROUND This dispute arises out of Contract No. 00301012005A ( the Contract ) between respondent and Skyline for ground transportation services for respondent s employees from

-2- January 1, 2005 through December 31, 2008 (Contract, Invitation to Bid at 4). The parties entered into the Contract in September 2004. Throughout its performance of the Contract, Skyline submitted invoices to respondent for its work (Pet. Boxes 1-4). Though respondent made payments to Skyline, they consistently were for smaller amounts than Skyline requested (Pet. Exs. K, J). The invoice and payment information is detailed in the chart below. 1 Invoice No. Invoice Date Dates work performed Amount Requested Amount Received Date Received 589464 06/30/09 06/04/09 $59.60 $0.00 N/A 571088 12/31/08 10/23/08-12/30/08 $31,931.61 $28,778.61 02/27/09 568051 11/30/08 10/01/08-11/26/08 $157,145.23 $139,046.73 02/20/09 564936 10/31/08 08/21/08, 08/27/08, 09/05/08 - $195,324.61 $174,392.61 12/26/08 10/30/08 563225 09/30/08 05/23/08, 08/05/08-10/02/08 $115,801.93 $104,616.43 12/05/08 558732 08/31/08 07/07/08-08/28/08 $99,082.80 $88,220.00 10/27/08 555646 07/31/08 06/03/08-07/31/08 $97,361.55 $83,611.50 09/30/08 552404 06/30/08 05/02/08-06/25/08 $47,037.30 $42,970.00 07/31/08 549138 05/31/08 04/14/08-05/29/08 $53,362.83 $49,147.50 06/27/08 545808 04/30/08 03/12/08-04/30/08 $58,363.38 $53,002.50 05/30/08 542459 03/31/08 02/07/08-03/27/08 $51,140.00 $46,182.83 05/12/08 539161 02/29/08 10/12/07, 12/12/07-12/20/07, $61,872.28 $57,907.25 04/04/08 01/12/08-02/28/08 535782 01/31/08 12/11/07-01/30/08 $77,184.93 $71,474.50 03/11/08 532312 12/31/07 09/26/07, 11/14/07-12/28/07 $50,800.08 $47,383.00 01/25/08 530382 11/30/07 03/05/07, 10/09/07-11/28/07 $48,622.28 $45,325.90 01/23/08 525280 10/31/07 07/30/07, 08/14/07, 08/23/07, $70,424.22 $67,268.60 11/29/07 08/27/07, 09/11/07-10/31/07 523387 09/30/07 08/07/07-09/26/07 $36,107.54 $32,970.05 10/29/07 518739 08/31/07 07/12/07-08/30/07 $51,361.59 $48,578.00 10/05/07 515315 07/31/07 06/18/07-08/02/07 $59,549.13 $55,786.00 09/07/07 513677 06/30/07 5/02/07, 05/21/07-06/28/07 $28,988.91 $27,486.91 08/24/07 508776 05/31/07 10/10/06, 04/11/07-05/30/07 $33,264.86 $31,724.99 07/03/07 505073 04/30/07 01/12/07, 03/20/07-04/26/07 $13,641.99 $12,962.99 05/27/07 501714 03/31/07 12/11/06, 01/24/07, 01/30/07, $17,670.99 $16,663.99 05/10/07 02/12/07-03/29/07 498237 02/28/07 01/19/07-03/01/07 $30,381.72 $29,047.72 04/16/07 494671 01/31/07 12/13/06-01/31/07 $42,501.87 $40,403.37 04/10/07 484131 10/31/06 08/03/06-11/01/06 $86,187.71 $81,859.71 12/22/06 478888 08/31/06 05/18/06, 06/19/06, 07/07/06-08/31/06 $115,273.06 $109,388.21 10/24/06 1 Skyline submitted a chart listing an additional invoice, invoice 492913, dated December 31, 2006. This was left out of the chart above because it was not among the invoices submitted as evidence.

-3- On August 3, 2010, in response to its queries about the underpayments, Skyline received a fax from respondent which stated, This Agency s records indicate that all payments are complete and on time. Therefore, the Agency respectfully requests verification of any real or imagined debt (Pet. Ex. M). On August 17, 2010, Skyline submitted a Notice of Dispute relating to the alleged underpayments to respondent s President (Pet. Ex. C). It sent a follow-up Notice of Dispute to respondent s Executive Director on September 24, 2010 (Pet. Ex. D). In October and November of 2010, Skyline sent letters to respondent requesting a response to its Notice of Dispute (Pet. Exs. E, F). On February 2, 2011, Skyline initiated an Article 78 proceeding against respondent (Pet. Ex. L at 3 n.7). On February 10, 2011, respondent sent Skyline a letter confirming a conversation and meeting held the previous day (Pet. Ex. I; Resp. Ex. A). The letter stated that after receipt of the August and September letters, respondent began a review of all the materials and the Contract. Respondent had finished its review and accordingly scheduled the meeting at which it informed Skyline that due to errors, miscalculations, incorrect billings, and liquidated damages, Skyline had been overpaid and owed respondent $22,891.69. The letter concluded with a demand that Skyline remit payment in that amount and acknowledge that respondent did not owe Skyline additional payments. An analysis of respondent s calculations was attached. (Pet. Ex. I; Resp. Ex. A). Skyline received no other written communication from respondent addressing its Notice of Dispute. On April 19, 2011, Skyline filed a Notice of Claim with the Comptroller (Pet. Ex. G). The Comptroller requested additional information on June 7, 2011 (Pet. Ex. H). On June 15, 2011, the Comptroller asked Skyline to explain why its Notice of Claim was timely as the Agency Head had issued its determination on February 10, 2011 (Pet. Ex. I). Skyline responded that the letter it received from respondent dated February 10, 2011, did not constitute an agency head determination because it did not comply with the Procurement Policy Board Rules ( PPB Rules ). Thus, Skyline asserted that the February 10, 2011 letter did not trigger the 30-day time period to seek review by the Comptroller (Pet. Ex. I). See 9 RCNY 4-09(d)(3) (requiring the agency head determination to include a statement on how it may be appealed). The Comptroller disagreed and, on October 25, 2011, the Comptroller issued a determination denying Skyline s claim as it had not been submitted to the Agency

-4- Head or the Comptroller within the timelines specified in the PPB Rules (Pet. Ex. L). The Comptroller found that the February 10, 2011 letter was a final response to the dispute and accordingly the submission to the Comptroller was untimely. The Comptroller also found that the dispute arose during the period from October 2006 through February 2009, when Skyline received payments for the invoices, less the deducted amounts. Thus, Skyline s submission of the Notice of Dispute to respondent in August 2010 was time-barred. Skyline filed its petition to the CDRB on November 23, 2011. ANALYSIS As an initial matter, Skyline has failed to request relief that this Board has the authority to grant. The Board s purview is limited to reviewing the Agency Head s decision and does not include review of the findings made by the Comptroller. 9 RCNY 4-09(g); Premier Home Health Care Services, Inc. v. Human Resources Admin., OATH Index No. 2514/11, mem. dec. at 1 n.1 (Oct. 17, 2011); Pile Foundation Construction Co. v. Dep t of Environmental Protection, OATH Index No. 1785/09, mem. dec. at 7 (Apr. 15, 2009), aff d, 2010 NY Slip Op 31067(U) (Sup. Ct. N.Y. Co. 2010); A.J. Pegno Construction Corp./Tully Construction Co., Inc. v. Dep t of Environmental Protection, OATH Index No. 1436/08, mem. dec. at 3 (May 21, 2008). Accordingly, the PPB Rules require the petition to include a brief statement of the substance of the dispute; the amount of money, if any, claimed; and the reason(s) the vendor contends that the dispute was wrongly decided by the Agency Head. 9 RCNY 4-09(g)(1) (emphasis added). In this case, the petition included little discussion of what the underlying dispute was about and why Skyline should prevail, and, rather than requesting that this Board grant it the $118,581.74 Skyline claims it is owed, Skyline requested that the Board find the Comptroller s decision unsupported (Pet. at 9). However, respondent has made no objection on these grounds, and the Board is willing to liberally construe the petition to contain a request for the $118,581.74. See C.P.L.R. 3026 (Lexis 2011). Having done so, the Board concludes that the petition must be dismissed as time-barred. The time frames for dispute resolution established by the contract and the PPB Rules may not be disregarded without good cause. Start Elevator, Inc. v. Dep t of Correction, OATH Index No. 1160/11, mem. dec. at 3 (Feb. 28, 2011), aff d, Index No. 104620/11 (Sup. Ct. N.Y. Co. Jan. 9, 2012); Delcor Assoc. v. Dep t of Housing Preservation & Development, OATH Index

-5- No. 1872/10, mem. dec. at 2 (Apr. 13, 2010); Kreisler Borg Florman v. Dep t of Design & Construction, OATH Index Nos. 338/07, 339/07 & 340/07, mem. dec. at 4 (Jan. 26, 2007); Alta Indelman, Architect/Builders Group, LLC v. Dep t of Sanitation, OATH Index No. 1092/05, mem. dec. at 7 (June 16, 2005). Part V of the contract (Pet. Ex. A at 89) and section 4-09(d)(1) of the PPB Rules require Skyline to submit its Notice of Dispute to the Agency Head within thirty days of receiving written notice of the determination or action that is the subject of the dispute. 9 RCNY 4-09(d)(1). The rules require the Agency Head to issue its decision within thirty days of receipt of all materials and information, or such longer time as may be agreed to by the parties. 9 RCNY 4-09(d)(3). Thereafter, if Skyline wants further review, it must submit a Notice of Claim to the Comptroller within thirty days of receipt of a decision by the Agency Head. 9 RCNY 4-09(e)(1). If the Agency Head does not make a determination within the timeframe required by the rules, its failure shall be deemed a non-determination without prejudice that will allow application to the next level. 9 RCNY 4-09(b). Skyline asserts that it submitted its Notice of Dispute timely because the August 3, 2010 fax (Pet. Ex. M), was the first communication in writing that it received from respondent in response to its attempts to resolve the underlying dispute caused by Respondent s deductions from the invoices presented to it by Petitioner pursuant to the contract. (Opp. to Resp. Request that Pet. be Dismissed at 4). Accordingly, Skyline contends that its submission of the Notice of Dispute on August 17, 2010, was timely because it was within 30 days of its receipt of the August 3 fax. Skyline further argues that its Notice of Claim was timely as the letter dated February 10, 2011, did not qualify as an Agency Head decision. It contends that the statement in the letter that [t]he Board is continuing to research and review to determine certain amounts, indicates that it was not a final determination (Opp. to Resp. Request that Pet. be Dismissed at 6). As additional support for this understanding, Skyline noted a telephone conversation in which a city attorney allegedly told Skyline that an Agency Head Determination would be forthcoming. Skyline further asserts that the letter did not provide a reasoned explanation for its determination, as required by PPB Rule 4-09(b), and did not contain a statement concerning how it may be appealed, as required by PPB Rule 4-09(d)(3). Moreover, Skyline contends, the letter could not constitute an Agency Head decision as it was not issued within 30 days of receipt of the

-6- Notice of Dispute, as required by PPB Rule 4-09(d)(3), but instead was issued almost six months later. As the letter did not constitute an Agency Head decision, Skyline contends that its submission of the Notice of Claim was timely. It argues that PPB Rule 4-09(b) did not impose a requirement that Skyline proceed to the next level upon the expiration of the Agency Head s time period, but rather made application to the Comptroller permissible. Further, Skyline maintains that due to respondent s admission in the February 10, 2011 letter that it was unable to respond to Skyline s Notice of Dispute in a timely fashion due to staffing problems, it was reasonable for Skyline to forebear from pursuing an application to the next level under the PPB Rules. We agree that the February 10, 2011 letter is not sufficient to constitute an Agency Head determination, because it did not contain a statement on how it may be appealed. However, we do not agree that Skyline had an unlimited amount of time in which to submit a Notice of Claim. PPB Rule 4-09(b), states [failure to issue a decision] shall be deemed a non-determination without prejudice that will allow application to the next level (emphasis added). Thus, as we explained in Barele v. Human Resources Administration, OATH Index No. 1470/11 mem. dec. at 4 (May 16, 2011), petitioner is not free to interpret the agency head s failure to issue a decision as an indefinite toll of petitioner s time to submit its Notice of Claim to the Comptroller. The statement that the non-determination will allow application to the next level merely means that petitioner is not required to appeal; it may abandon its claim at any time. Cf. Start Elevator v. City of New York, Index No. 104620/11 at 9 (Sup. Ct. N.Y. Co. Jan. 9, 2012) (examining the language in PPB Rule 4-09(g) which permits application to CDRB within 30 days, and finding that where an application is made, it must be made within the 30-day time period). Thus, Skyline was required to submit its Notice of Claim within 30 days after the Agency Head s time for issuing a determination expired. Skyline s additional argument, that the language in the February 10, 2011 letter was reasonable grounds to extend its timeframe for submitting is Notice of Dispute, is unconvincing. The February 10, 2011 letter was issued after Skyline s deadline for filing its Notice of Claim had expired, and thus cannot be a basis for its failure to file on time. While the PPB Rules do permit the parties to agree to extend the deadline for the Agency Head to issue its determination, thereby extending the deadline in which to file a Notice of Dispute, 9 RCNY 4-09(d)(3),

-7- Skyline has presented no evidence of any such agreement. To the contrary, Skyline s initiation of the Article 78 proceeding indicates its objection to the lack of response from the Agency Head. It is undisputed that Skyline failed to submit its Notice of Claim within 30 days of the Agency Head s non-determination. Its failure to do so is sufficient to establish that its claim is time-barred. See Maracap Construction Industries, Inc. v. Dep t of Transportation, OATH Index No. 711/08, mem. dec. at 5 (May 9, 2008) (finding the Agency Head s inaction should have been deemed a rejection of petitioner s claim, triggering the timeline for filing its claim with the Comptroller); Prime Construction Force v. Dep't of Parks & Recreation, OATH Index No. 942/06, mem. dec. at 5 (Apr. 4, 2006) (finding petition time-barred where Commissioner did not issue an opinion and petitioner failed to file a Notice of Dispute with the Comptroller within 30 days of the Commissioner s non-determination); Demo-Tech Corp. v. Dep't of Housing Preservation & Development, OATH Index No. 659/03, mem. dec. at 5-6 (Nov. 25, 2002) (finding where no response was issued by the Agency Head, petitioner should have deemed the inaction a denial of its claim and filed with the Comptroller 30 days thereafter, its failure to do so rendered the petition time-barred); see also JCH Delta Contracting, Inc. v. City of New York, 44 A.D.3d 403, 404 (1st Dep t 2007) ( The lack of an adverse determination by the responsible agency on plaintiff's claims did not preclude plaintiff from seeking administrative review in a timely manner since the contract provided that the agency's failure to render a decision within 20 days of the filing of the claim was deemed a rejection of the claim ). City contractors disputes should not be allowed to stagnate, out of fairness to the City, and to preserve the integrity of the evidence upon which the eventual Agency Head determination must be made. Dynamic Painting Corp. v. Dep t of Transportation, OATH Index No. 901/04, mem. dec. at 8 (May 21, 2004). The time limits in Part V of the contract and the PPB rules, like statutes of limitations generally, afford protection to defendants against defending stale claims after a reasonable period of time had elapsed during which a person of ordinary diligence would bring an action. The statutes embody an important policy of giving repose to human affairs. David D. Siegel, New York Practice 33 at 41 (4th Ed. 2005) (quoting Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 429 (1969)). For all the reasons discussed above, Skyline s submission of its Notice of Claim nine months after submission of its Notice of Dispute was untimely. Because we have found that the

-8- Notice of Claim was untimely, there is no need to address the arguments regarding the timeliness of the Notice of Dispute. CONCLUSION Accordingly, the petition is dismissed. All concur. February 28, 2012 APPEARANCES: PIKE & PIKE, P.C. Attorneys for Petitioner BY: ROBERTA PIKE, ESQ. MICHAEL A. CARDOZO, ESQ. CORPORATION COUNSEL Attorney for Respondent BY: DAVID COOPERSTEIN, ESQ. Faye Lewis Administrative Law Judge