Matter of Troeller v New York City Dept. of Educ.

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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 Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON412012012 I [* 1] I SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 33 Justice INDEX NO. index Number : 113099/2011 TROELLER, ROBERT J. MOTION DATE VS. NYC DEPARTMENT OF EDUCATION SEQUENCE NUMBER : 001 MOTION SEQ. NO. ARTICLE 78 MOTION CAL. NO. PAPERS N U f y l m Notlce of Motton/ Order to Show Cause - Affldavlta - Exhlblts ... Aoswerlng Affidavit8 - Exhlblta 7 I 4 -, / O - / I 1 2 1 3 Replylng Affldavits AtFXANDER W.. WNTEB P J-s*c- 0 NON-FINAL DISPOSITION Check one: L,,,/ , DISPOSITION Check if appropriate: r] 00 NOT POST 0 SUBMIT ORDER/JZTI)G. REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 33 X 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, ____-----___---_I__----------------- -----------_------~----------- Petitioner, 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 respondents extension of the current services contract between the DOE and additional party Temco Services, Inc. ( Temco ).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 ( DOE ) 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 petitioner s 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. [* 3] In June 2003, the DOE issued a request for proposals ( RFP ) 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. ( CBS ). In May 2007, CBS assigned the contract to Ternco with the DOE s 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- T emcocontract 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 Brooklyn, respectively. 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 DOE s 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 and capricious. 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 o ┬Čthe 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. 2 [* 4] I Standing and/or capacity to sue is a threshold question involving the authority of a litigant to present a grievance for judicial review. 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 (1 Dept. 2010). The purpose of competitive bidding statutes such as General Municipal Law 5 103 is to guard against favoritism, improvidence, extravagance, fraud, and corruption. 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, petitioner s 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 respondents actions, therefore petitioner does not havc associational standing in the instant matter. Petitioner s arguments in support of taxpayer standing have been disregarded because the petition wm not brought as a taxpayer action. Accordingly, ADJUDGED that petitioncr s application for an order pursuant to C.P.L.R. Article 78 is I 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 the lowest rcsponsible bidder hrnishing the required security aRer advertisement for sealed bids in the manner provided by this section. 3 [* 5] denied, without costs and disbursements to either party. Respondents cross-motion to dismiss petitioner s application is granted. Dated: April 16,20 I2 ENTER:. UNFILED JUDGMENT 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 Clerk s Desk (Room t 141E). 4