Kooleraire Service & Installation Corp. v. Board of Education

Appeal from a judgment of the Supreme Court in favor of defendant, entered September 13, 1968, in New York County, upon a decision of the court, dismissing the complaint, at a Trial Term, without a jury. Memorandum: Judgment entered September 13, 1968, herein appealed from, affirmed, without costs or disbursements. The facts are fairly stated in the dissenting opinion and need not now be restated. The essential point of difference is over the significance of and effect to be given article 44, which is set forth in the dissenting opinion. When parties deal at arm’s length, as here, with comparative equality of bargaining power, they are free to include in their contract such terms and conditions as they will. If such provisions are not in contravention of law or clear evidence of overreaching they should be given validity. Although section 93c-3.0 of the Administrative Code, if advanced separately, could not bind the defendant, no legal impediment exists which prevents the defendant from including the language of that -section or such portion as it wished in article 44 of the. contract (cf. People ex rel. Elkind v. Rosenblum, 184 Misc. 916, affd. 269 App. Div. 859, affd. 295 N. Y. 929; Education Law, ■§§ 2556, 2580, 408). This it did, thereby establishing as a condition precedent the requirement that the Comptroller’s certificate be attached to the contract. Plaintiff does not claim ignorance of the existence of the condition but argues waiver by defendant of article 44 and estoppel by reason of defendant’s acts in preventing certification. In the absence of a showing of bad faith on the part of defendant in preventing certification, and a clear showing that plaintiff had materially changed its position, to its damage, in reliance upon the acts of defendant, defendant should not be estopped from claiming nonfulfillment of the condition precedent. Nor can it be held that defendant by its actions waived the benefit of article 44. Defendant has a public obligation and is bound to exercise its best judgment in carrying out its duties. Defendant’s request that certification not be made for reasons which defendant considered sufficient, should not lightly be disregarded, nor its motive in relying upon article 44 be too technically appraised where, on the record, its good faith is not seriously questioned. A real difficulty here is that the trial court in effect severed the defenses and tried separately the contract issue. Nevertheless, on the record, that will not serve to preclude affirmance of the judgment.