FAWCETT v. CITY OF BUFFALO 264 AFSCME 650 AFSCME 71 264

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

Matter of H. Kenneth FAWCETT and C.E.F. Enterprises, Petitioners-Appellants, v. CITY OF BUFFALO, Buffalo Water Board, Buffalo Municipal Water Finance Authority, American Anglian Environmental Technologies, L.P., Local 264-AFSCME, Local 650-AFSCME, Operating Engineers Local 71 and Teamsters Local 264, Respondents-Respondents.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, KEHOE and BALIO, JJ. James Ostrowski, Buffalo, for Petitioners-Appellants. Charles C. Martorana, Buffalo, for Respondents-Respondents City of Buffalo, Buffalo Water Board and Buffalo Municipal Water Finance Authority. Marilyn A. Hochfield, Buffalo, for Respondent-Respondent American Anglian Environmental Technologies, L.P. Jerry A. Gambino, Buffalo, for Respondents-Respondents Local 264-AFSCME and Operating Engineers Local 71. Robert J. Reden, Buffalo, for Respondent-Respondent Local 650-AFSCME. John A. Collins, Buffalo, for Respondent-Respondent Teamsters Local 264.

Petitioners, a licensed master plumber and his firm, commenced this CPLR article 78 proceeding against multiple respondents, including the City of Buffalo (City) and its Water Board and Municipal Water Finance Authority, alleging that respondents violated General Municipal Law § 103, the competitive bidding statute, and other statutes and ordinances.   Petitioners alleged that a contract awarded by the Water Board to respondent American Anglian Environmental Technologies, L.P. (AAET) should have been competitively bid because the contract was a “public works” contract for installation of water meters on properties throughout the City.   Petitioners also alleged that AAET is not qualified by law to do plumbing work itself or to manage or employ nonlicensed individuals engaged in such work.   Petitioners appeal from a judgment granting the motions of the City respondents and AAET to dismiss the petition on various grounds, including failure to state a cause of action and the Statute of Limitations.

 Supreme Court properly determined that the petition fails to state a cause of action.   The contract and surrounding circumstances establish that AAET is not engaged in plumbing work without a license.   Rather, AAET contractually assumed the responsibility for managing the municipal water system, including managing the “union employees”, i.e., those workers who are actually employed in civil service classifications by the City itself and who work in the City's Division of Water under the direct supervision of the City's Commissioner of Public Works.   Nor is there any merit to petitioners' alternative contention that, no matter who employs those workers engaged in installing water meters, the work necessarily involves plumbing work that may be done only by licensed plumbers.   Petitioners cite various State and municipal laws regulating the business, occupation or trade of plumbing, but nothing in those laws prohibits the City from directly employing workers for the purpose of carrying out its municipal responsibilities.

 Similarly, there is no merit to petitioners' contention that the August 19, 1997 management agreement between the Water Board and AAET must be set aside as violative of the competitive bidding requirements of General Municipal Law § 103.   There is an exception to competitive bidding requirements for contracts for services requiring specialized skills or training, including professional services or other services requiring technical expertise (see, Matter of Burroughs Corp. v. New York State Higher Educ. Servs. Corp., 91 A.D.2d 1078, 1079-1080, 458 N.Y.S.2d 702, lv. denied 58 N.Y.2d 609, 462 N.Y.S.2d 1025, 448 N.E.2d 1358;  Matter of Amherst Columbia Ambulance Serv. v. Gross, 80 A.D.2d 719, 720, 437 N.Y.S.2d 137;  Matter of Doyle Alarm Co. v. Reville, 65 A.D.2d 916, 410 N.Y.S.2d 466).   That principle has been applied to contracts for the provision of management services (see, Hurd v. County of Erie, 34 A.D.2d 289, 292-294, 310 N.Y.S.2d 953;  cf., Matter of Schulz v. Warren County Bd. of Supervisors, 179 A.D.2d 118, 123, 581 N.Y.S.2d 885, lv. denied 80 N.Y.2d 754, 587 N.Y.S.2d 906, 600 N.E.2d 633).

 In any event, the court properly determined that the proceeding was not commenced within four months after the determination to be reviewed became final and binding (see, Sutton v. Yates County, 193 A.D.2d 1126, 598 N.Y.S.2d 646, lv. denied 82 N.Y.2d 656, 602 N.Y.S.2d 805, 622 N.E.2d 306;  Nickerson v. City of Jamestown, 178 A.D.2d 1003, 578 N.Y.S.2d 338;  see also, CPLR 7801[1] ).   A determination is final and binding when it “ ‘has its impact’ ” on a petitioner who is thereby aggrieved (Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716, 499 N.Y.S.2d 934, 490 N.E.2d 853, quoting Mundy v. Nassau County Civ. Serv. Commn., 44 N.Y.2d 352, 357, 405 N.Y.S.2d 660, 376 N.E.2d 1305).   Here, the administrative determination became final and binding upon petitioners no later than September 1, 1997, when the management contract went into effect between the Water Board and AAET, but the proceeding was not commenced until January 1999.   Contrary to petitioners' contention, there is no basis for determining the timeliness of the proceeding, or for postponing its accrual, based on the date on which petitioners' attorney received the City Corporation Counsel's “legal opinion” concerning the propriety of the determination at issue.

Judgment unanimously affirmed without costs.

MEMORANDUM: