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Supreme Court, Appellate Division, First Department, New York.


IN RE: Betsy F. Gotbaum, as Public Advocate for the City of New York, Petitioner-Appellant, v. New York Metropolitan Transportation Authority, Respondent-Respondent.

IN RE: Walter Mankoff, et al., Petitioners-Appellants, Assemblyman Richard N. Gottfried, etc., et al., Petitioners, v. New York Metropolitan Transportation Authority, Respondent-Respondent.

IN RE: New York Public Interest Research Group/Straphangers Campaign, Inc., et al., Petitioners-Appellants, v. New York Metropolitan Transportation Authority, et al., Respondents-Respondents.

Decided: June 23, 2005

ANDRIAS, J.P., MARLOW, SULLIVAN, ELLERIN, NARDELLI, JJ. Gibson, Dunn & Crutcher LLP, New York (Randy M. Mastro of counsel), for Madison Square Garden, L.P., appellant. Stewart Occhipinti, LLP, New York (Charles A. Stewart, III of counsel), for Betsy F. Gotbaum, appellant. Steptoe & Johnson LLP, New York (John D. Lovi of counsel), for Mankoff, appellants. Kennedy, Schwartz & Cure, P.C., New York (Daniel R. Bright of counsel), for New York Public Interest Research Group/Straphangers Campaign, Inc., appellants. Weil, Gotshal & Manges LLP, New York (James W. Quinn of counsel), for New York Metropolitan Transportation Authority, respondent. Proskauer Rose LLP, New York (Louis M. Solomon of counsel), for Jets Development, LLC, respondent.

Judgment, Supreme Court, New York County (Herman Cahn, J.), entered June 2, 2005, which denied four petitions and dismissed the corresponding proceedings brought pursuant to CPLR article 78 to annul the determination of respondent New York Metropolitan Transportation Authority (MTA) selecting Jets Development, LLC to develop the area known as the John D. Caemerer West Side Yards, unanimously affirmed, without costs.

 The Public Advocate was without capacity to bring a proceeding challenging the disputed MTA determination (see Community Bd. 7 v. Schaffer, 84 N.Y.2d 148, 155-156, 615 N.Y.S.2d 644, 639 N.E.2d 1 [1994] ).   Her duty is to be “a ‘watchdog’ over City government” (Matter of Green v. Safir, 174 Misc.2d 400, 403, 664 N.Y.S.2d 232 [1997], affd. in relevant part 255 A.D.2d 107, 679 N.Y.S.2d 383 [1998], lv. denied in part and dismissed in part 93 N.Y.2d 882, 689 N.Y.S.2d 425, 711 N.E.2d 639 [1999];  see also N.Y. City Charter §§ 24[f], 1109), but the MTA is not part of City government (see e.g. Matter of New York Post Corp. v. Moses, 10 N.Y.2d 199, 204, 219 N.Y.S.2d 7, 176 N.E.2d 709 [1961] ).

 The Mankoff petitioners lack standing because they do not fall within the zone of interest protected by Public Authorities Law § 1264, § 1265, and § 1267 (see e.g. Matter of Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals, 69 N.Y.2d 406, 515 N.Y.S.2d 418, 508 N.E.2d 130 [1987] ).   Even if these petitioners live in close proximity to the site at issue, that has nothing to do with whether the MTA received the highest price for the site;  rather, their interests as the site's neighbors are tied to environmental impacts such as congestion and air pollution.   Those interests are being adequately protected in a separate lawsuit.

 The non-profit petitioners in Straphangers cannot sue under State Finance Law § 123-b(1) because they are not taxpayers (see e.g. Weimer v. Bd. of Educ., 52 N.Y.2d 148, 153 n. 3, 436 N.Y.S.2d 853, 418 N.E.2d 368 [1981];  Matter of Sullivan v. Siebert, 70 A.D.2d 975, 417 N.Y.S.2d 129 [1979] ).   The individual petitioners in Straphangers cannot sue the MTA under State Finance Law § 123-b(1) because the MTA is separate from the State (see e.g. New York Post Corp., 10 N.Y.2d at 203-204, 219 N.Y.S.2d 7, 176 N.E.2d 709;  Matter of Lancaster Dev. Inc. v. Power Auth. of the State of New York, 145 A.D.2d 806, 535 N.Y.S.2d 654 [1988], lv. denied 74 N.Y.2d 612, 547 N.Y.S.2d 846, 547 N.E.2d 101 [1989] ).   Petitioners lack common-law taxpayer standing because they “do not seek review of any legislative action,” and “no ‘impenetrable barrier’ exists” to judicial scrutiny (Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d 579, 589, 684 N.Y.S.2d 156, 706 N.E.2d 1180 [1998], citing Boryszewski v. Brydges, 37 N.Y.2d 361, 364, 372 N.Y.S.2d 623, 334 N.E.2d 579 [1975] )-the unsuccessful bidder can bring, and has brought, suit.

In Straphangers, the individual users of mass transit, the organizations representing such users, and the union representing the MTA's employees lack standing because the injuries they fear (e.g., fare hikes and/or job losses) are not “actual or imminent” (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 [1992] ), the link between those injuries and the MTA's acceptance of the Jets' proposal is too attenuated (id.), and it is speculative rather than likely that those future injuries will be redressed by annulling the MTA's selection of the Jets (id. at 561, 112 S.Ct. 2130).

 Turning to the Madison Square Garden (MSG ) petition, it is true, of course, that the MTA must treat bidders fairly (see e.g. Matter of Tri-State Aggregates Corp. v. Metro. Transp. Auth., 108 A.D.2d 645, 646, 485 N.Y.S.2d 754 [1985] ).   However, MSG was not treated unfairly.   A request for proposals (RFP) need not spell out every single factor (see Matter of Transactive Corp. v. New York State Dept. of Social Servs., 236 A.D.2d 48, 53, 665 N.Y.S.2d 701 [1997], affd. 92 N.Y.2d 579, 684 N.Y.S.2d 156, 706 N.E.2d 1180 [1998] ).   Furthermore, “[t]here exists no legal requirement ․ that the final contracts must conform to the original RFP” (Starburst Realty Corp. v. City of New York, 131 Misc.2d 177, 186, 498 N.Y.S.2d 673 [1985], mod. on other grounds 125 A.D.2d 148, 512 N.Y.S.2d 60 [1987], lv. denied 70 N.Y.2d 605, 519 N.Y.S.2d 1028, 513 N.E.2d 1308 [1987] ).   An RFP is a more flexible alternative to competitive bidding (see e.g. Jo & Wo Realty Corp. v. City of New York, 157 A.D.2d 205, 212, 555 N.Y.S.2d 271 [1990], affd. 76 N.Y.2d 962, 563 N.Y.S.2d 727, 565 N.E.2d 476 [1990] ).

 The MTA was not obligated to accept MSG's proposal because it offered more cash up-front (see e.g. Jo & Wo, 157 A.D.2d at 210, 226, 555 N.Y.S.2d 271;   Matter of New City Jewish Ctr. v. Flagg, 111 A.D.2d 814, 490 N.Y.S.2d 560 [1985], affd. 66 N.Y.2d 980, 499 N.Y.S.2d 395, 489 N.E.2d 1297 [1985] ).

While MSG's purportedly inadequate provision of space for the Quill Bus Depot was an improper post hoc rationalization for the challenged MTA determination (see e.g. Matter of Missionary Sisters of the Sacred Heart, Ill. v. New York State Div. of Hous. & Community Renewal, 283 A.D.2d 284, 288, 724 N.Y.S.2d 742 [2001] ), the other factors raised by the MTA in this proceeding were mentioned at the March 31, 2005 board meeting and did constitute the reasons for the determination.   Inasmuch as the determination had a rational basis, it should not be disturbed (see e.g. Mun. Testing Lab., Inc. v. New York City Tr. Auth., 233 A.D.2d 105, 649 N.Y.S.2d 426 [1996] ).

We have considered petitioners' remaining arguments and find them unavailing.