Upon the foregoing papers in this action by plaintiffs J.P.R. Cafeteria, Inc. (JPR) and Salvatore Piro (Piro), James C. Jennett (Jennett), and Nicholas Randazzo (Randazzo) (who are JPR's shareholders and officers) (collectively, plaintiffs) alleging misrepresentation, fraud, breach of contract, and unjust enrichment, defendants Panda House at Manhattan Beach, LLC (Panda House) and Len Kusnetz, as Panda House's president and shareholder (Kusnetz) move for an order, pursuant to CPLR 3016(b) and 3211(a) (7), dismissing plaintiffs' complaint as against them on the ground that it fails to state any viable cause of action with respect to them.

Defendants Kingsborough Community College Auxiliary Enterprises Corporation (KCCAEC) and its chairperson, William Keller (Keller), move for an order, pursuant to CPLR 3211(a) (7) and CPLR 3016(b), dismissing plaintiffs' action as against them on the [*2]ground that the pleading fails to state a cause of action, and/or pursuant to CPLR 3212, granting them summary judgment on the basis that there is no triable issue of fact. KCCAEC and Keller's motion, in the alternative, seeks an order, pursuant to CPLR 103 (c), converting plaintiffs' action to a CPLR article 78 proceeding.

Defendants Kingsborough Community College of the City of New York (KCC); Regina Peruggi, as KCC's President (Peruggi); Keller, in his capacity as Vice President for Finance and Administration of KCC; Norman Toback, as KCC's Dean of Student Services (Toback); Joanne Sagherian, as KCC's Director of Purchasing (Sagherian); and Jonathan Deutsch (Deutsch), Stuart Schulman (Schulman), Charles E. Kee (Kee), Peter Pobat (Pobat), Helianne Duke (Duke), and Anthony Tantuccio (Tantuccio), as voting members of KCC's Food Service Selection Committee (collectively, the KCC defendants) similarly move for dismissal of plaintiffs' action as against them, pursuant to CPLR 3211(a) (7) and 3016(b), and/or for summary judgment dismissing plaintiffs' complaint as against them, pursuant to CPLR 3212, on the same grounds as asserted by KCCAEC and Keller and upon the additional ground that plaintiffs have failed to comply with the notice of claim requirements of Education Law § 6224(1) and (2), a mandatory condition to the commencement of an action against them. The KCC defendants, in the alternative, also move, pursuant to CPLR 103( c ) for a conversion of this action to a proceeding under CPLR article 78.

Plaintiffs cross-move, pursuant to CPLR 3025(b), for leave to serve and file a proposed supplemental summons and verified complaint, which limits the named plaintiff to JPR; further clarifies JPR's claim for fraud in a proposed first cause of action; eliminates the breach of contract and unjust enrichment causes of action and, instead, alleges a proposed second cause of action for defamation and a proposed third cause of action for mandamus; clarifies that damages are being sought against certain of the individual defendants in their individual capacity, in addition to their representative capacity; and joins the two other unsuccessful bidders on the subject public contract as nominal parties defendants. Plaintiffs' cross motion further seeks: (1) leave to replead in the event that their complaint is dismissed, and (2) leave to serve a late notice of claim pursuant to General Municipal Law §§ 50-e and 50-i and Education Law § 6224. Plaintiffs' cross motion also seeks, in the event that this court determines that this action should have been brought by a CPLR article 78 proceeding, an order severing the branch of their action which seeks to set aside the subject public contract and converting that branch of their action into such a proceeding. In addition, plaintiffs' cross motion requests an order, pursuant to CPLR 3012(b) and 2005, deeming their late reply to the Panda House and Kusnetz's counterclaims to be timely, nunc pro tunc, and, thereupon, pursuant to CPLR 3211(a) (7) and 3016(a), dismissing Panda House and Kusnetz's eighth affirmative defense and first counterclaim for failure to allege defamation with the requisite particularity.

KCCAEC is a not-for-profit corporation which supports KCC through revenue-generating activities. Before 1991, the individual plaintiffs (Piro, Jennett, and Randazzo) worked in the food service operations at KCC and, in 1991, they formed JPR to take an assignment of an unexpired term of a food services contract for the KCC then in place. In [*3]May 1992, JPR and KCCAEC entered into a contract to provide food services to KCC for a term of three years with two two-year extension options, which were exercised by KCCAEC. In 1998, KCCAEC published a request for proposals (RFP) to fill the food services contract at KCC and JPR submitted the successful bid. The contract, executed on July 19, 1999, was for a two-year period commencing on August 1, 1999 with three successive one-year renewal extension options, each of which was exercised by KCCAEC, and the last of which expired on August 1, 2004. During the term of the contract, JPR operated the cafeteria, VIP room, and vending machines at KCC.

In 2004, near the time of the expiration of the last extension of the 1999 contract, KCCAEC published a RFP. However, that 2004 RFP was withdrawn on the basis that a new long-term contract was to be held off until the appointment of a new president of KCC, and JPR was, instead, given an additional interim one-year extension of the 1999 contract through December 2005.

On September 30, 2005, KCCAEC issued a RFP for the selection of a vendor to provide food services at the KCC pursuant to a new long-term food services contract. KCCAEC, in conjunction with KCC, designed the RFP process. Notice of the RFP was published in the City Record and the State Contract Reporter and sent to vendors who had submitted responses to the 2004 RFP.

Part II, § 6.a. Proposal Evaluation (on page 19) of the RFP advised proposers that:

"[KCCAEC] will appoint a Selection Committee consisting

of a minimum of three persons. The Selection Committee

may appoint one or more consultants to advise on specific

issues arising during Proposal evaluation. The Selection

Committee will evaluate those Proposals that meet the

requirements. Once the Selection Committee has

completed its evaluation, it will make a recommendation

to the Board of Directors of [KCCAEC]. The Board will

make the final determination regarding award of the

Contract."

Pursuant to Part II,  6.b. Proposal Evaluation on page 19 of the RFP, the criteria on which each proposal was to be evaluated consisted of: (1) Qualifications and References (25%), (2) the Food Services Proposal (20%), (3) the Support Services Proposal (15%), (4) the Financial Proposal (20%), and (5) Ratings of Current Vendor sites (20%). Ratings were on a scale of 1 (lowest) to 5 (highest). In the RFP, at Part II, § 6d., KCCAEC reserved its rights, inter alia, to "award a Contract, if at all, to the Proposer with the highest score," and to "award a Contract to other than the Proposer(s) offering the lowest overall cost or the greatest financial return to [KCCAEC]."

In accordance with Part II, § 6.a. of the RFP, the Selection Committee was formed. It was a composed of 11 members: three students, four faculty members, and five members of the administration staff. The Selection Committee was charged with reviewing and evaluating the proposals and issuing a recommendation to the Food Service Committee, a [*4]standing committee of the KCC Association. If the Food Service Committee of the KCC Association concurred with the Selection Committee's recommendation, it would issue a further recommendation to the Budgets and Contracts Committee of the KCCAEC. If approved by the Budgets and Contracts Committee of the KCCAEC, it would be submitted for final approval by the full Board of Directors of the KCCAEC.

On December 14, 2005, JPR agreed to extension of its food services contract with KCCAEC to June 9, 2006. As required by Addendum No. 4 to the RFP, the vendors submitted their proposals by November 22, 2005. Four vendors, including JPR and Panda House, submitted proposals.

In April of 2006, site visits were conducted at the proposers' current places of operation in order to evaluate the cleanliness of the kitchen and serving areas, and the quality of service, and to evaluate the proposers' foods for taste and variety. All 11 members rated the Qualifications and References, Food Services Proposal, and Support Services Proposal evaluation categories. However, the food quality element of the Food Services Proposal was evaluated by Deutsch, a faculty committee member from the College's Tourism and Hospitality Department, and the sanitation and security elements of the Support Services Proposal were re-evaluated and rated by advisory committee members who were administrators at KCC.

The Financial Proposal category was evaluated and scored by Kee, a professor in the Accounting Department. Kee also evaluated the pricing and financial stability elements of the Qualifications and References and Food Services Proposal categories. For the Current Vendor sites category, the Selection Committee was divided into teams who visited at least one site for each of the proposers. Each team member rated the proposers' food quality, temperature, appearance, cleanliness and service. The Selection Committee was also divided into teams to check the reference element of the Qualifications and References category.

In its proposal, Panda House agreed to make capital improvements to the food service space of at least $250,000. Kee's financial analysis of the proposals further indicated that Panda House's proposal would yield the best financial benefit in other ways, including minimum guarantee payments in excess of those called for by the RFP and higher percentage of gross cafeteria and vending sales. The financial information provided also indicated that Panda House was a profitable enterprise. Panda House also proposed to construct a food court, as well as a Blimpie's restaurant and a Starbucks coffee bar. In addition, Panda House promised to replace all of the existing vending machines (which were old) and to provide additional vending machines in other areas of KCC. According to the rating sheets, Panda House scored the highest in every evaluation category, including the financial proposal category.

JPR's proposal, on the other hand, was scored the lowest in every category in the RFP. Other than also proposing a Starbucks coffee bar, JPR did not propose any substantive capital improvements. Instead, JPR only promised to spend an estimated $100,000 to replace its old vending machines and to provide other kitchen equipment. In addition, the financial analysis indicated that JPR would yield the lowest revenues. Furthermore, JPR's financial statements [*5]showed that JPR had reported a loss in two of the last three years and had a high negative retained earnings for the year 2004. JPR also did not score as well as Panda House with respect to taste and variety of the menu.

On May 23, 2006, the Selection Committee recommended Panda House's proposal to the Food Service Committee of the KCC Association. On the same date, the Food Service Committee approved the recommendation of the Selection Committee and forwarded it to the Budgets and Contracts Committee of the KCCAEC, which approved it on May 25, 2006. In June of 2006, the final decision to award the food services contract to Panda House was made by the Board of Directors of KCCAEC.

On June 7, 2006, the food services contract with Panda House was executed by Keller, in his capacity as chairperson of the board of KCCAEC. On August 1, 2006, Panda House began performance under the food services contract, and it has now been the food service vendor at KCC for nearly one year. At least $250,000 in capital improvements have been made by Panda House to the food service area, including new equipment. A food court has been constructed by Panda House and is operational. A Blimpie's restaurant and a Starbucks coffee bar have been constructed by Panda House and are also operational. Vending machine leases have been entered into by Panda House, and vending machine service is being provided by it.

On July 27, 2006, plaintiffs instituted this action against KCC, KCCAEC, Keller, certain officers of KCC involved in the evaluation of the proposals, voting members of the Selection Committee, Panda House, and Kusnetz.^[FN1] Plaintiffs' complaint contains four causes of action, purporting to allege claims of misrepresentation, fraud, breach of contract, and unjust enrichment.

With respect to Panda House and Kusnetz's motion, it is noted that there are no allegations whatsoever in plaintiffs' original complaint that contend that Panda House took any actions or failed to take any actions that caused plaintiffs to suffer damages. Even liberally construing plaintiffs' complaint and giving plaintiffs the benefit of every favorable intendment (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Maldonado v Olympia Mech. Piping & Heating Corp., 8 AD3d 348, 349-350 [2004]), plaintiffs' complaint merely alleges that the food services contract was awarded to Panda House, who, it claims, was not the most qualified bidder. This does not constitute a basis for any legally cognizable claim as against Panda House.

Plaintiffs allege, however, that Panda House is a necessary party herein in order for it to rescind the contract. However, as Panda House points out, plaintiffs seek damages from it and Kusnetz. While plaintiffs' amended complaint sets forth a proposed mandamus claim, [*6]the requested relief is available only through the KCC defendants or KCCAEC and cannot be asserted as against Panda House or Kusnetz in the context (see Fraser v Patrolmen's Benevolent Assn. of City of New York, 179 AD2d 563, 564 [1992]). Moreover, a review of record satisfied this Court that vacatur of the award of the contract to Panda House is not warranted. Thus, plaintiffs' complaint as against Panda House and Kusnetz must be dismissed and, as JPR's proposed amended complaint does not state any cognizable claim against Panda House and Kusnetz, no leave to amend it as against Panda House and Kusnetz may be granted (see CPLR 3211[a] [7], 3212[b]; Ruddock v Boland Rentals, 5 AD3d 368, 370 [2004]; AYW Networks v Teleport Communications Group, 309 AD2d 724, 725 [2003]).

Plaintiffs' cross motion with respect to Panda House and Kusnetz seeks an order deeming its reply to Panda House and Kusnetz's answer (which was dated August 17, 2006), timely served, nunc pro tunc. Plaintiffs had served a reply to the counterclaims set forth in that answer on February 20, 2007, but it was rejected by Panda House and Kusnetz as untimely. Plaintiffs allege that there was a law office failure by their prior counsel in failing to timely serve a reply.

CPLR 3012(d) permits the court to extend the time for a party to plead "on such terms as may be just." CPLR 2005 provides that the court "shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure." Since the period of delay is a minimal one and there is no undue prejudice to Panda House or Kusnetz, the court will direct Panda House and Kusnetz to accept service of plaintiffs' late reply nunc pro tunc (see Wagenknecht v Government Empls. Ins. Co., 97 AD2d 407, 409 [1983]; Spickerman v State of New York, 85 AD2d 60, 61-62 [1982]).

Plaintiffs' cross motion also seeks dismissal of Panda House and Kusnetz's eighth affirmative defense and first counterclaim, which purport to set forth a defamation claim. This defense and counterclaim allege that plaintiffs made libelous and slanderous statements to employees and agents of KCC and the media concerning the honesty and integrity of Panda House and Kusnetz and that plaintiffs have also made libelous and defamatory statements to CUNY staff and KCC staff, with the express intent to damage Panda House's reputation and business relationships. This statement, however, falls short of satisfying the pleading requirement for defamation set forth in CPLR 3016(a) in that it fails to set forth the particular words alleged to be defamatory, the particular persons to whom the defamatory comments were made, and the time, place, and manner of the defamatory statements (see Simpson v Cook Pony Farm Real Estate, 12 AD3d 496, 497 [2004]; Sirianni v Rafaloff, 284 AD2d 447, 448 [2001]; Gill v Pathmark Stores, 237 AD2d 563, 564 [1997]). As such, dismissal of this eighth affirmative defense and counterclaim is required (see CPLR 3016[a]).

As to the KCC defendants, it is noted that plaintiffs did not file a notice of claim against them. Plaintiffs' allegation, in the proposed amended complaint, that JPR served a notice of claim on the New York City Comptroller on September 6, 2006 and on the Corporation Counsel on September 11, 2006, is devoid of merit as that notice of claim pertains to a different related action by JPR against Panda House, which is presently pending [*7]before Justice Martin Schneier (JPR Cafeteria, Inc. v Panda House, LLC, Index No. 19151/06). JPR now seeks leave to serve a late notice of claim, pursuant to General Municipal Law § 50-e(5) and Education Law § 6224. JPR, however, has not proffered any excuse for its delay other than that in an effort to save its business, the complaint was quickly drafted by its predecessor counsel (see Matter of Smith v Otselic Valley School Dist., 302 AD2d 665, 665 [2003]; Matter of Baglivi v Town of Southold, 301 AD2d 597, 598 [2003]; Akhmechet v City of New York, 6 Misc 3d 1038 [A], *3 [2005]). Thus, dismissal of the claims asserted in plaintiffs' complaint against the KCC defendants (i.e., plaintiffs' misrepresentation, fraud, breach of contract, and unjust enrichment claims) is warranted (see CPLR 3212[b]).

With respect to KCCAEC and Keller, plaintiffs' third cause of action for breach of contract alleges that defendants entered into an oral contract with them, agreeing to allow JPR to compete for the vending contract by submitting a proposal in response to the RFP, which it breached. The undisputed facts, however, disclose that there was no oral contract, but merely an RFP, in response to which JPR submitted its proposal. Thus, since plaintiffs do not plead the existence of any actual oral contract between them and defendants which was breached, this cause of action must be dismissed ^[FN2] (see generally Maldonado, 8 AD3d at 350; Atkinson v Mobil Oil Corp., 205 AD2d 719, 720 [1994]).

Plaintiffs' fourth cause of action purports to allege a claim of unjust enrichment by stating that Panda House was unjustly enriched as a result of the actions of defendants. " To state a cause of action for unjust enrichment, a plaintiff must allege that it conferred a benefit upon the defendant and that the defendant will obtain such benefit without adequately compensating plaintiff therefor'" (Smith v Chase Manhattan Bank, USA, NA, 293 AD2d 598, 600 [2002], quoting Nakamura v Fujii, 253 AD2d 387, 390 [1998]). Here, plaintiffs identify no alleged benefit whatsoever which they have conferred upon any of the defendants and for which they were not adequately compensated. The documented evidence only discloses that JPR's proposal was rejected in favor of Panda House's proposal. This does not constitute the basis for an unjust enrichment claim and, thus, dismissal of this claim is required.^[FN3]

With respect to plaintiffs' first and second causes of action for misrepresentation and fraud, respectively, which are further clarified in JPR's first cause of action for fraud in its proposed amended complaint, plaintiffs allege that defendants did not intend to award the contract to the most qualified bidder, and that plaintiffs relied upon the false impression created by the RFP that the award of the contract would be given to the most qualified bidder, expending funds in excess of $100,000. Specifically, plaintiffs allege that KCCAEC misrepresented that they would have an opportunity to showcase their culinary skills, but [*8]were not afforded an opportunity to do so; that defendants engaged in bid-rigging and tampering with the proposals submitted by the prospective vendors, and made misrepresentations about them; and that officials and employees of KCC and KCCAEC engaged in a variety of types of misconduct to defeat the public bidding process and its objective, the award of public projects to the lowest responsible bidder.

These claims do not allege a fraud cause of action. To state a cause of action for fraud, the plaintiffs must allege that a knowingly false representation of a material fact was made for the purpose of inducing plaintiffs' reliance to its detriment (Ogelkan v Tyree Brothers Environmental Services, Inc., 29 AD3d 877, 878 [2006]).

Plaintiffs' fraud claims merely allege that they were misled into submitting their proposal to obtain the contract in reliance upon the published RFP and that they have been damaged by an alleged failure to comply with the terms set forth therein. Plaintiffs' attempt to challenge the fairness of the bidding process and to allege claims of misconduct in the process is properly the subject to a CPLR article 78 proceeding.

Plaintiffs, in effect, acknowledge that a CPLR article 78 proceeding is the appropriate vehicle to address their claims by asserting, in their proposed amended complaint, a proposed third cause of action for "mandamus." Plaintiffs' proposed "mandamus" cause of action alleges that KCCAEC and KCC caused the RFP to be published, pursuant to Education Law § 6218, but that the award of the contract to Panda House was arbitrary, capricious, and contrary to the provisions of Education Law § 6218.

Education Law § 6218 provides that contracts involving a liability of more than $20,000 entered into by the city university board of trustees "shall be awarded to the lowest responsible bidder." Thus, an unsuccessful bidder may bring an action in mandamus to challenge the misconduct of the governmental agency where such conduct defeats the purpose of the competitive bidding statute (see Sodexho Mgt., Inc. v Nassau Health Care Corp., 23 AD3d 370, 370 [2005]). An unsuccessful bidder for an RFP published by a constituent of the CUNY system pursuant to Education Law § 6218 is subject to such a challenge (see Matter of Professional Security Bureau, Ltd. v City Univ. of NY, 151 Misc 2d 225, 228 [1991]).

While Education Law § 6218 governs procurements by CUNY and its various educational institutions, defendants assert that the RFP was issued by KCCAEC, which is not itself an educational corporation. Instead, KCCAEC is a corporation organized under the Not-For-Profit Corporation Law for the purpose of providing auxiliary, non-educational services, such as food service, to KCC. Procurements by corporations under the Not-For-Profit Corporation Law are subject to the standard of good faith and prudent dealings in Not-For-Profit Corporation Law § 717, and a CPLR article 78 proceeding may be maintained against a not-for-profit corporation (see Matter of Sines v Opportunities for Broome, Inc., 156 AD2d 878, 879 [1989]).

Here, while the Board of Directors of KCCAEC made the final determination and awarded the contract to Panda House, KCCAEC concedes that it is an affiliate of KCC and that it enlisted the help of KCC to complete the RFP process and, given KCC's intimate [*9]involvement with the competitive RFP process used and the award of the contract, the court finds that review subject to CPLR article 78 is appropriate herein. Indeed, both KCCAEC and Keller, and the KCC defendants assert that if the court finds that competitive public bidding was required, this action should be converted to a CPLR article 78 proceeding.^[FN4]

Thus, the court, pursuant to CPLR 103 (c), converts this plenary action to a CPLR article 78 proceeding (granting plaintiffs' cross motion for leave to amend in this respect and KCCAEC and Keller's alternative motion and the KCC defendants' alternative motion). Since the KCC defendants have submitted voluminous documentation on this issue and both sides have fully submitted their arguments with respect to this challenge, the court will address the issues raised by such a proceeding.

In addressing the petition, it is noted that "the laws requiring competitive bidding were designed to benefit taxpayers rather than corporate bidders and, thus, should be construed and administered "with sole reference to the public interest"'" (Matter of Acme Bus Corp. v Board of Educ. of Roosevelt Union Free School Dist., 91 NY2d 51, 54 [1997], quoting Matter of Conduit & Found. Corp., 66 NY2d at 148 [internal citation omitted]). It is true that "a contract procured through fraudulent and collusive bidding is void as against public policy" (Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 193 [1968]). However, the Court of Appeals has stated that in the awarding of public contracts, "a spectral appearance of impropriety' is insufficient proof to disturb a board's determination under the competitive bidding statutes" (Matter of Acme Bus Corp., 91 NY2d at 55, quoting Matter of Conduit & Found. Corp., 66 NY2d at 150; see also Matter of Sicoli & Massaro, Inc. v Grand Is. Cent. School Dist., 309 AD2d 1229, 1230-1231 [2003]). The "[p]etitioner has the burden to demonstrate actual impropriety, unfair dealing or some other violation of statutory requirements when challenging an award of a public contract" (Matter of Acme Bus Corp., 91 NY2d at 55; see also Matter of Conduit & Found. Corp., 66 NY2d at 149-150; Matter of Sicoli & Massaro, Inc., 309 AD2d at 1230).

Here, JPR asserts that Panda House was pre-ordained by Keller and Dobrin to be the winner of the advertised contract. JPR contends that Keller, Toback, and other members of the Selection Committee engaged in misconduct in connection with the bidding procedure by: (1) falsely representing that JPR had problems with infestation of mice, roaches, and other vermin, (2) not affording JPR an opportunity to defend against the false allegations that it had infestation problems, (3) concealing the fact that an affiliate under common control with Panda House had infestation of mice, roaches, and other vermin at a facility operated by it at Queens College, (4) not conducting a bona fide inspection of JPR's facility and operations, (5) permitting Panda House's bid to be considered notwithstanding that no Panda [*10]House representative was present at a meeting that was mandatory for all the other bidders, and (6) permitting Panda House to assign the bid to a newly created subsidiary, whose sole asset was the bid, notwithstanding the fact that the financial disclosures made in support of the bid were made by Panda House.

In support of its contention, JPR has submitted the sworn affidavit of Milton Augustine (Augustine), a student director of the KCC Association,^[FN5] who states that in March 2006, Keller (who, as noted above, is KCC's Vice President) and Toback (who, as noted above, is KCC's Dean of Students) gave a presentation with regard to their evaluation of food services companies bidding for the cafeteria services contract. He claims that Keller stated to the group that JPR's service was "out," meaning that its bid was not going to be accepted, and that Panda House was going to receive the contract. He asserts that when questioned as to why the Selection Committee was taking this position, Toback responded that, among other things, JPR had "failed several health inspections," and that Toback also stated that there "were roaches and vermin"^[FN6] at the JPR facility. Augustine further states that Toback, when asked if any similar complaints were lodged against Panda House, responded that there were no significant complaints or concerns with Panda House. Augustine claims that based on what Keller and Toback had stated, he cast a vote in favor of Panda House. He claims that he would never have voted to approve Panda House's proposal if he was not given this misleading information. JPR claims that these false statements about it biased the selection process and caused it to be passed over for the contract.

In response, Sagherian (who, as noted above, was KCC's Director of Purchasing), denies that there was any presentation in March 2006 by Toback or Keller. KCC has submitted the minutes of the KCC Association's meeting, which indicate that it met only on March 23, 2006 and then on May 30, 2006. According to the minutes of the March 23, 2006 meeting, there was no presentation by Toback or Keller, and it was first announced at that meeting that the RFPs for the food service contract had been submitted and were in the process of being reviewed. It is noted that Augustine's name is not listed on the attendance roster for the March 23 meeting. The minutes of the May 30, 2006 meeting simply state that the KCC Association was informed that "[t]he Food Service Committee met on May 22 . . [*11]. and approved the recommendation of the Selection Committee to accept Panda House as the recipient of the Food Service contract."

Furthermore, as explained by Sagherian's affidavit, the KCC Association as a whole was not involved in the recommendation of the food vendor. Rather, only the Food Service Committee of the KCC Association was involved in the selection process. While Augustine was a member of the KCC Association, its Board of Directors, its standing committee charged with reviewing its budget, and its ad hoc committee which reviewed the certified audit of the KCC Association's books, he was not a member of the Food Service Committee. This is evidenced by the fact that Augustine's name is notably not listed on the membership list of the Food Service Committee members. Thus, since the approval of the KCC Association was not required, Augustine did not have a vote with respect to the selection of the food service provider.

Moreover, the KCC defendants have annexed numerous reports of inspections conducted by Food Sanitation Consultation Service, Inc. (KCC's sanitation and safety consultant) at JPR's facilities at KCC. These reports indicate the presence of mouse droppings, dead insects, flies, live roaches, and vermin, and several other critical and continuing health and safety conditions.

JPR points to the fact that an affiliate of Panda House also had health code violations while operating the cafeteria at Queens College, which included evidence of roaches in the facility, a food protection certificate not held by the supervisor of food operations, and milk or milk product undated, improperly dated, or expired. This affiliate was also the subject of a WCBS news special report on August 28, 2004, which found dead cockroaches, mice, a leaking waste pipe, and three pounds of chicken stored at unsafe temperatures. JPR claims that concerns over Panda House's affiliate's health code violations were summarily dismissed and not investigated by Keller, Toback, and other members of the Selection Committee, and that Keller and Toback made untruthful statements of fact to conceal Panda House's "abysmal health and sanitation record."

Sagherian's affidavit indicates that with respect to the Health Department violations by Panda House's affiliate, this issue was not suppressed, but was investigated. She attests that she and Keller spoke a number of times with the Queens College personnel, and determined that Queens College itself was partially at fault since it was responsible for exterminating. Sagherian states that while this issue was taken into account in Panda House's scores, it did not outweigh the overall superiority of Panda House's proposal and its high evaluation scores in every category. Sagherian further notes that if this issue had been solely determinative, JPR would likewise have been disqualified due to the unfavorable health conditions which were found by KCC's consultant in its inspection reports.

JPR also complains that the entire Selection Committee made several visits to sites operated by Panda House, but Keller and Pobat made only perfunctory stops at the JPR facility. It claims that it was not permitted to "showcase its culinary skills." However, there was no such requirement contained in the RFP. Moreover, PR had been at KCC for many years and, in all that time, had had ample opportunity to demonstrate its culinary skills. In [*12]any event, albeit not as thorough or detailed as JPR would have desired, the Selection Committee did, in fact, conduct an on-site visit to JPR's operation at KCC.

JPR further claims that throughout the period when Keller, Toback, and the Selection Committee purported to consider the applicants for the RFP, Panda House received preferential treatment. To demonstrate this, JPR relies upon its allegation that Panda House failed to show up at a mandatory October 12, 2006 meeting of applicants. It claims that this lapse would have disqualified any other candidate. This unsubstantiated allegation that Panda House was not present at the mandatory October 12, 2006 meeting, however, is disproven by the documentary evidence. A list of attendees at the meeting and the sign-in/sign-out sheet for the October 12, 2006 meeting evidences that Panda House, in fact, attended the October 12, 2006 meeting.

JPR also challenges the fact that Panda House subsequently assigned the contract at issue to its affiliate, Panda House at Manhattan Beach. However, Panda House's cover letter to its proposal states: "If awarded the bid, the contract would be assigned to a new Panda House affiliated LLC entity (tentatively called Panda House at Manhattan Beach LLC')." KCCAEC was free to accept this portion of Panda House's proposal, and elected to do so, and Panda House at Manhattan Beach, LLC, which entered into the contract, is contractually obligated to perform as promised.

JPR additionally asserts that Keller hand-picked members of the Selection Committee, whom he controlled, and which were selected by him in order to arrive at a pre-determined conclusion, i.e., that Panda House would win the bidding. The record (as noted above), however, reflects that the Selection Committee was composed of faculty members, students, and administration staff members. There is no evidentiary support for JPR's assertion. JPR also asserts that in derogation of CUNY policies, two faculty members from the same department were picked to sit on the Selection Committee. Such assertion, though, does not support JPR's claim of bias. JPR does not point to any policy of CUNY, KCC, or KCCAEC which prohibits this, and there is no indication that the two professors, who were both from the Tourism and Hospitality Department, lacked the expertise to make appropriate evaluations.

JPR further claims that Dobrin had a close relationship with one or more of the principals of Panda House. This is specifically denied by Kusnetz, in his sworn affidavit, and there are no evidentiary facts submitted to support JPR's claim. In addition, although Panda House omitted certain information from its November 15, 2005 submission, so too did JPR, and both vendors were given the opportunity to rectify the omissions, as was expressly permitted by the RFP. Furthermore, contrary to JPR's argument, a comparison of the scores on the evaluation sheets prepared by the individual members of the Selection Committee with the Committee's report and recommendation do not show that points were switched between Panda House's proposal and JPR's proposal.

JPR also claims that it had won the bidding for the earlier 2004 RFP, but that CUNY, under the direction of Dobrin, had refused to approve the contract. Such claim, however, does not support any conspiracy claim by JPR. Initially, it is noted that Dobrin, as an [*13]employee of CUNY's central office, had no role in the food vendor selection and award process. Moreover, JPR had no right to the award of that contract since, as specifically authorized by statutory law, the 2004 RFP expressly advised proposers that KCCAEC had the right to reject all proposals (see Education Law § 6218 [d]; Matter of Conduit & Found. Corp., 66 NY2d at 149).

Thus, JPR's allegation of bid-rigging and tampering, secret meetings, improper accommodation of Panda House, use of false and misinformation about JPR, supposed friendship between Panda House's principal and CUNY officials, and animus towards JPR, are not supported by any evidence in the record. Apart from mere speculation and unsubstantiated innuendo, JPR raises no identifiable favoritism, improvidence, fraud, impropriety, or corruption stemming from the process used to award the subject food service contract (see Matter of Acme Bus Corp., 91 NY2d at 56; Matter of New York State Ch., Inc., Associated Gen. Contrs. v New York State Thruway Auth., 88 NY2d 56, 68 [1996]). Rather, it appears that the selection was based solely upon a comparison of the proposals submitted.

KCCAEC has provided a plausible and rational explanation for its awarding of the contract to Panda House over JPR (see Matter of Sicoli & Massaro, Inc., 309 AD2d at 1231). KCCAEC reasonably chose the lowest responsible bidder which scored the overall highest ratings in each of the categories set forth in the RFP. Thus, inasmuch as there was a rational basis for KCCAEC to accept Panda House's proposal over JPR's proposal, and JPR has failed to demonstrate that KCCAEC acted unlawfully or engaged in any unfair or unlawful practice which tainted the impartiality of the competitive bidding process, the KCCAEC's determination should not be disturbed (see Matter of Acme Bus Corp., 91 NY2d at 56; Matter of Conduit & Found. Corp., 66 NY2d at 150).

Accordingly, Panda House and Kusnetz's motion to dismiss plaintiffs' action as against them, is granted. Plaintiffs' cross motion is granted insofar as it seeks an order, pursuant to CPLR 3012(b) and 2005, deeming their late reply to Panda House and Kusnetz's counterclaims to be timely, nunc pro tunc, and thereupon, pursuant to CPLR 3211(a) (7) and 3016(a), dismissing Panda House and Kusnetz's eighth affirmative defense and first counterclaim for failure to allege defamation with the requisite particularity. KCCAEC and Keller's motion and the KCC defendants' motion are granted to the extent that summary judgment dismissing plaintiffs' complaint as against them is granted. KCCAEC and Keller's motion, the KCC defendants' motion and plaintiffs' cross motion are also granted to the extent that this action is converted, pursuant to CPLR 103(c), to a CPLR article 78 proceeding, and, following such conversion, the petition is denied and the proceeding is dismissed. Plaintiffs' cross motion is denied in all other respects. The surviving counterclaims interposed by KCCAEC, Panda House and KCC are severed. The remaining parties are directed to appear for conference in Commercial Division I at 9:45 A.M. on October 17, 2007.

This constitutes the decision and order of the court.

E N T E R, [*14]

J. S. C.