698 41 MISCELLANEOUS REPORTS, 3d SERIES
regulations and not the HAP contract which mandate annual
inspections and compliance with the HQS (24 CFR 982.405; Cit-
adel, 39 Misc 3d at 885-886).
On the other hand, where a public official or governmental
body breaches a contract resulting in damages to the plaintiff,
‘‘the claim must be resolved through the application of
traditional rules of contract law.’’ (Abiele Contr. v New York City
School Constr. Auth., 91 NY2d 1, 8 [1997]; Citadel Estates, 39
Misc 3d at 884.) In Abiele, the Court held that the plaintiff
could maintain a plenary action for a breach of contract where
the School Construction Authority terminated a contract with a
private contractor to build a school. Similarly, a dispute concern-
ing the sum due under a contract to transport handicapped
children to school should be properly resolved in a breach of
contract action as opposed to a mandamus to compel payment.
(Matter of Steve’s Star Serv. v County of Rockland, 278 AD2d
498, 500 [2d Dept 2000].)
Ultimately, whether a plenary action or a special proceeding
is appropriate is dependent upon whether the petitioner as-
serted that the governmental action was in violation of lawful
procedure or was arbitrary and capricious and an abuse of
discretion, in which case an article 78 proceeding is the ap-
propriate vehicle. (Abiele, 91 NY2d at 8; see 35-41 Clarkson LLC
v New York City Hous. Auth., 2012 WL 5992094, 2012 US Dist
LEXIS 170555 [SD NY, Nov. 30, 2012, No. 11 Civ 6770 (PKC)].)
Only if the focus of the controversy is on an agency’s breach of
an express contractual right, or on the agency’s violation of the
implied obligations of good faith, fair dealing and cooperation,
would a plenary action be appropriate. (Abiele at 7-8; see DDEH