Matter of Troeller v New York City Dept. of Educ.
2012 NY Slip Op 31058(U)
April 16, 2012
Supreme Court, New York County
Docket Number: 113099/11
Judge: Alexander W. Hunter Jr
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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
index Number : 113099/2011
TROELLER, ROBERT J.
NYC DEPARTMENT OF EDUCATION
SEQUENCE NUMBER : 001
MOTION SEQ. NO.
MOTION CAL. NO.
PAPERS N U f y l m
Notlce of Motton/ Order to Show Cause - Affldavlta - Exhlblts ...
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0 NON-FINAL DISPOSITION
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0 SUBMIT ORDER/JZTI)G.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 33
In the Matter of the Application of
Robert 1. Troeller, as President of Local 89 1,
International IJnion of Operating Engineers, and
as a Rcsident Taxpayer of the City of New York,
Index No.: 1 13099/11
Decision and Judgment
For a Judgment pursuant to C.P.L.R. Article 78
-againstThe New York City Department of Education, and
Dennis M. Walcott, as Chancellor of the New
The application by petitioner for an order pursuant to C.P.L.R. Article 78, declaring
respondentsâ extension of the current services contract between the DOE and additional party
Temco Services, Inc. (âTemcoâ).without satisfying thc competitive bidding requirements as
violative of General Municipal Law 6 1 03 and Education Law Q 2556( 1 0), is denied.
The cross-motion by respondents The New York City Department of Education (âDOEâ)
and Dennis M. Walcott for an order pursuant to C.P.L.R. 7804(f), 7806, 321 l(a)(l), (a)(2),
(a)(3), and (a)(7) dismissing petitionerâs application is granted.
Petitioner is an unincorporated labor organization and the collective bargaining
representative of approximately 900 school Custodian Engineers employed by respondent the
DOE. Since 1962, Local 891 and the DOE have been parties lo a series of collective bargaining
agreements covering the terms and conditions of employment of Custodial Engineers. The DOE
is responsible for overseeing the provision of clcaning, heating, operations, and maintenance
services for the New York City public schools. Under the indirect system of custodial care, .
custodial engineers are assigned to a specific number of DOE facilities where they employ their
own subordinate staffs of custodial employees. Schools without a permanent custodian may be
managed by Custodial Engineers under a temporary system where a custodian is temporarily
assigned to operate additional facilities for a spccified number of weeks.
In June 2003, the DOE issued a request for proposals (âRFPâ) for Facilities Management
Services. Pctitioner did not submit a bid or a proposal. The DOE awarded the contract, which
was entered into on November 12, 2004, to Control Building Services, Inc. (âCBSâ). In May
2007, CBS assigned the contract to Ternco with the DOEâs consent. Thc contract was set to
expire in November 201 1. In or around July 201 1, the DOE issued an RFP seeking proposals
from private corporations to clean, operate, manage, and maintain its buildings. Petitioner
alleges that instead of awarding the contract to the lowest qualified bidder, the DOE sought to
extend the term of the current DOE-âTâemcocontract for an additional year.
Hy public notice on September 2 1,20 1 1, the DOE announced that it would extend the
term of the contract for an additional year from November 21,201 1 to November 21,201 2. The
current DOE-Temco contract only applies to facilities located in Regions 3 and 8 in Queens and
Petitioner argues that custodial services previously assigned to Custodial Engineers have
been contracted to Temco in violation of compctitive bidding statutes. Consequently, members
of Local 891 have lost work and income. The DOEâs decision has also led to increased costs
which translate into increased costs for taxpayers. Petitioner asserts that by extending the DOETemco contract, the DOE fails to perform a duty mandated by law and its actions were arbitrary
Respondents cross-move to dismiss the petition in its entirety on the grounds that
petitioner lacks standing and/or capacity to sue and fails to state a cause of action. Respondents
argue that as a non-bidder, petitioner cannot challenge the award of a contract by a public
authority becausc petitioner does not have a direct stake in the outcome of the bidding process
and therefore has no injury.
Additional party Temco joins in and adopts all oâ¬the arguments made by respondents.
In opposition, petitioner argues that it meets the test for associational standing in order to
bring this Article 78 proceeding. Local 891 members are displaced whenever a school at,which
he or she is employed is awardcd to a private contractor. Petitioner asserts that any member who
is employed at a school that is covered by an improperly awarded contract would have standing
to sue. The interests, job protection, advanced in the instant petition are germane to the
organizational purpose of Local 891. He also maintains that he has taxpayer standing to
challenge administrative actions that are inconsistent with General Municipal Law 5 103.
In reply, respondents reiterate that pctjtioner lacks standing because he did not bid for the
contract. Respondents further argue that petitioner does not have taxpayer standing because his
pleading is only brought pursuant to C.P.I,.R. Article 78 and not brought as a taxpayer action
pursuant to General Municipal Law tj 5 1.
Standing and/or capacity to sue is âa threshold question involving the authority of a
litigant to present a grievance for judicial review.ââ Town of Riverhead v. Nci7v York State Bd,
of Real Property Services, 5 N.Y.3d 36,41 (2005). To establish standing to challenge an
administrative action, a party must show an injury in fact that is different from that of the public
at large and that the injury falls within the zone of interests sought to be protected by the statute.
Society of the Plastics Industry, Inc. v, CounW of Suffolk, 77 N.Y.2d 761,774 (1991). In
order for a labor union to have associational standing, the union must show hat: 1) some or all of
its members have standing to sue; 2) the interests advanced in the case are sufficiently related to
its organizational purposes; and 3) the reliefrequested does not require the participation of the
individual members. Matter of Dental $ocy. of State of N.Y. v, Carey, 61 N.Y.2d 330;
Mulprew v. Uoard of Edec. of the Citv $chool Dist. of the City of N.Y., 75 A.D.3d 412 (1â
The purpose of competitive bidding statutes such as General Municipal Law 5 103â is to
âguard against favoritism, improvidence, extravagance, fraud, and corruption.â New York State
Ch., Inc,. v. New York State Thruway Autb., 88 N.Y.2d 56,68 (1996); Bee also, Jered
Constr, Corp,, v. New York State Tr. Autb., 22 N.Y.2d 187 (1968). The municipal contract
must be awarded to the lowest responsible bidder.
This court finds that petitioner does not have standing to maintain this action. Petitioner
has failed to establish that some or all of the members o f Local 891 have suffered an injury in
fact that is distinct from the general public. In addition, petitionerâs alleged injury does not fall
within the zone of interests to be protected by competitive bidding statutes. &, Matter of
Traqsactive Corp,, v. New York State Rept, of Social Sews., 92 N.Y.2d 579 (1998).
Petitioner maintains that Local 891 members employed at one of the schools that have been
transferred to Temco under the pilot program have suffered a loss of work and income.
However, individual members of the union would not have the standing to challenge
respondentsâ actions, therefore petitioner does not havc associational standing in the instant
matter. Petitionerâs arguments in support of taxpayer standing have been disregarded because the
petition wm not brought as a taxpayer action.
ADJUDGED that petitioncrâs application for an order pursuant to C.P.L.R. Article 78 is
General Municipal Law 5 103(1) provides that:
Except as otherwise expressly provided by an act of the legislature or by local law adopted
prior to September first, ninetecn hundred fifty-three, all contracts for public work involving
an expenditure of more than twenty thousand dollars and all purchase contracts involving an
expenditure of more than ten thousand dollars, shall be awarded by the appropriate ofiicer,
board or agency of a political subdivision ...to the lowest rcsponsible bidder hrnishing the
required security aRer advertisement for sealed bids in the manner provided by this section.
denied, without costs and disbursements to either party. Respondentsâ cross-motion to dismiss
petitionerâs application is granted.
Dated: April 16,20 I2
This judgment has not been entered by the County Clerk
and notice of entry cannot be served based hereon. To
obtain entry, counsel or authorized representative must
appear in person a the Judgment Clerkâs Desk (Room