IN RE: E.W. TOMPKINS COMPANY (2006)

Appeal from a judgment of the Supreme Court (Williams, J.), entered July 28, 2005 in Saratoga County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent adopting a project labor agreement to be used in the construction of a public library.

The Clifton Park-Halfmoon Public Library District was established by the Legislature in 2001 (see L. 2001, ch. 370) and, thereafter, voters of the district approved construction of a 55,000 square foot library with an estimated project cost of $15 million.   In preparation for the construction project, respondent commissioned a detailed study regarding use of a project labor agreement (hereinafter PLA) and that study determined that a PLA would, among other things, minimize delays and reduce costs.   Respondent negotiated the terms of the PLA with the Greater Capital Region Building and Construction Trades Council and began receiving bids, with successful bidders agreeing to abide by the PLA. Petitioner, a nonunion construction company that bids on and performs public works contracts, brought this proceeding contending that the use of a PLA on the project was improper.   The relief requested by petitioner included that no contracts be awarded under the PLA, that the PLA be declared unlawful and that the construction project be stayed.   Supreme Court dismissed the petition, finding, among other things, that respondent set forth sufficient evidence to establish that the PLA advanced the central purposes of the competitive bidding statutes, that is, protection of the public fisc and prevention of favoritism, improvidence, fraud and corruption (see Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v. New York State Thruway Auth., 88 N.Y.2d 56, 68, 643 N.Y.S.2d 480, 666 N.E.2d 185 [1996] ).   Petitioner appeals.

 Initially, we observe that the bids had been submitted and contracts awarded by the time of Supreme Court's decision, petitioner did not seek a stay from this Court pending appeal, and counsel represented during oral argument that construction on the project has progressed substantially toward completion.   Moreover, the relief requested both in the original petition and in petitioner's brief on appeal is now either impossible to grant or wholly untenable.   Under such circumstances, this appeal is moot (see Matter of Paden v. Planning Bd. of Town of Mamakating, 270 A.D.2d 626, 626, 704 N.Y.S.2d 523 [2000];  Matter of Save the Pine Bush v. Cuomo, 200 A.D.2d 859, 860, 606 N.Y.S.2d 818 [1994], lv. dismissed 83 N.Y.2d 884, 613 N.Y.S.2d 124, 635 N.E.2d 293 [1994];  Matter of Harbour v. Riedell, 172 A.D.2d 920, 921, 568 N.Y.S.2d 206 [1991] ), which is an issue the Court can raise on its own motion (see Matter of Flowers v. Sullivan, 75 N.Y.2d 850, 850, 552 N.Y.S.2d 924, 552 N.E.2d 172 [1990];  Gaetani v. Grippen, 183 A.D.2d 989, 990, 583 N.Y.S.2d 326 [1992];  see also Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am. AFL-CIO, 72 N.Y.2d 307, 311, 532 N.Y.S.2d 722, 528 N.E.2d 1195 [1988], cert. denied 488 U.S. 966, 109 S.Ct. 492, 102 L.Ed.2d 529 [1988] ).   Nor do we find that the current case falls within an exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ).   Even if we were to address the merits, we would find petitioner's arguments unpersuasive.   Supreme Court analyzed the proof before it under Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v. New York State Thruway Auth., supra and other pertinent precedent, and the record supports the court's determination (see e.g. Matter of Empire State Ch. of Associated Bldrs. & Contrs. v. Board of Educ. of City of Buffalo, 269 A.D.2d 801, 801-802, 703 N.Y.S.2d 418 [2000];  Matter of Albany Specialties v. County of Orange, 240 A.D.2d 739, 740-741, 662 N.Y.S.2d 773 [1997], lv. denied 91 N.Y.2d 802, 667 N.Y.S.2d 682, 690 N.E.2d 491 [1997] ).

ORDERED that the appeal is dismissed, as moot, without costs.

LAHTINEN, J.

CARDONA, P.J., SPAIN, CARPINELLO and MUGGLIN, JJ., concur.