IN RE: Paul BROWN

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

IN RE: Paul BROWN, as President of Building and Construction Trades Council of Buffalo and Vicinity, Building and Construction Trades Council of Buffalo and Vicinity, and Operating Engineers Local 17 Training Fund, Petitioners-Respondents, v. COUNTY OF ERIE, Tom Greenauer Development, Inc., and Associated Builders and Contractors, Inc., Respondents-Appellants.  (Appeal No. 2.)

Decided: March 27, 2009

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, AND GORSKI, JJ. Cheryl A. Green, County Attorney, Buffalo (Kristin Klein Wheaton of Counsel), for Respondent-Appellant County of Erie. Bond, Schoeneck & King, PLLC, Buffalo (Robert A. Doren of Counsel), for Respondents-Appellants Tom Greenauer Development, Inc. and Associated Builders and Contractors, Inc. Creighton, Pearce, Johnsen & Giroux, Buffalo (Catherine A. Creighton of Counsel), and Sherman, Dunn, Cohen, Leifer & Yellig PC, Washington, D.C., for Petitioners-Respondents. Andrew M. Cuomo, Attorney General, Albany (Michelle Aronowitz of Counsel), Amicus Curiae in Support of Petitioners-Respondents.

In 2006, respondent County of Erie (County) enacted Local Law 2-2006 (Local Law) requiring, in relevant part, that any contractor seeking to enter into a construction contract with the County must have “in place and provide written proof” that the contractor has a “New York State Certified Worker Training Program.”   When the County bid a public works project in 2007, however, no bidder, including the bidder who was awarded the contract, respondent Tom Greenauer Development, Inc. (Greenauer), submitted the requisite written proof of compliance with the Local Law.

In this CPLR article 78 proceeding, petitioners seek a determination that the contract between the County and Greenauer was invalid inasmuch as Greenauer did not have the requisite training program.   According to petitioners, Kandey Company, Inc. (Kandey), a nonparty, should have been awarded the contract because it had a collective bargaining agreement with a union (hereafter, Local 17) that is a member of petitioner Building and Construction Trades Council of Buffalo and Vicinity (Council), and petitioner Operating Engineers Local 17 Training Fund (Training Fund) provides apprentice training to members of Local 17.   We agree with the County and Greenauer that Supreme Court erred in denying their motions to dismiss the petition on the ground that petitioners lack standing to challenge the County's award of the contract to Greenauer.

 We conclude that the County and Greenauer met their initial burden on their respective motions by asserting that petitioners lack standing because they do not have an injury in fact that falls within the zone of interest sought to be promoted or protected by the local law (see generally Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 771-774, 570 N.Y.S.2d 778, 573 N.E.2d 1034), thus shifting the burden to petitioners to establish that they have standing.   We conclude that they failed to meet that burden inasmuch as they failed to establish “that the administrative action will in fact have a harmful effect on [them]” (Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 339 N.E.2d 865;  see Society of Plastics Indus., 77 N.Y.2d at 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034).   Standing to bring a CPLR article 78 proceeding requires “ ‘[t]he existence of an injury in fact-an actual legal stake in the matter being adjudicated’ ” (Silver v. Pataki, 96 N.Y.2d 532, 539, 730 N.Y.S.2d 482, 755 N.E.2d 842, rearg. denied 96 N.Y.2d 938, 733 N.Y.S.2d 377, 759 N.E.2d 376, quoting Society of Plastics Indus., 77 N.Y.2d at 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034), and the injury in fact must be “ ‘distinct from that of the general public’ ” (Matter of Benson v. Roswell Park Cancer Inst. Corp. Merit Bd., 305 A.D.2d 1056, 1057-1058, 759 N.Y.S.2d 828, lv. denied 100 N.Y.2d 501, 760 N.Y.S.2d 764, 790 N.E.2d 1193).   Contrary to petitioners' contention, it is not enough that “the issue may be one of wide public concern” (Rudder v. Pataki, 246 A.D.2d 183, 186, 675 N.Y.S.2d 653, affd. 93 N.Y.2d 273, 689 N.Y.S.2d 701, 711 N.E.2d 978).

Here, petitioners failed to establish that they suffered an injury in fact (see Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d 579, 588, 684 N.Y.S.2d 156, 706 N.E.2d 1180).   Petitioners cannot assert associational or organizational standing inasmuch as the Council's members, i.e., various unions, would not have had standing to bring this proceeding (see Society of Plastics Indus., 77 N.Y.2d at 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034).   Moreover, the allegation of petitioners that they were harmed because Local 17 was harmed is speculative, at best (see Matter of New York State Assn. of Criminal Defense Lawyers v. Kaye, 269 A.D.2d 14, 17, 710 N.Y.S.2d 146, affd. 96 N.Y.2d 512, 730 N.Y.S.2d 477, 755 N.E.2d 837).   Kandey is not a member of the Council or any union member of the Council, and there is no evidence that the Training Fund actually lost any contributions as a result of the County's award of the contract to Greenauer.

It is hereby ORDERED that the judgment so appealed from is reversed on the law without costs, the motions are granted and the petition is dismissed.

I respectfully dissent and would affirm.   In my view, petitioners have established an actual legal stake in the matter that is distinct from that of the general public (see Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d 579, 587, 684 N.Y.S.2d 156, 706 N.E.2d 1180;  Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 771-774, 570 N.Y.S.2d 778, 573 N.E.2d 1034).   The existence of an injury in fact, for the purpose of establishing standing, requires consideration of the alleged harm in light of the zone of interest to be protected by the law at issue (see Rudder v. Pataki, 93 N.Y.2d 273, 279-280, 689 N.Y.S.2d 701, 711 N.E.2d 978;  Transactive Corp., 92 N.Y.2d at 587, 684 N.Y.S.2d 156, 706 N.E.2d 1180;  Society of Plastics Indus., 77 N.Y.2d at 776-777, 570 N.Y.S.2d 778, 573 N.E.2d 1034).

Here, the enactment of Local Law 2-2006 (Local Law) by the Erie County Legislature is a direct result of the promotion of apprenticeship programs in accordance with the National Apprenticeship Act (29 USC § 50 et seq.;   see generally Associated Bldrs. & Contrs., Inc. v. Reich, 963 F.Supp. 35, 38 [D.D.C.1997] ) and Labor Law § 810.   The bidding requirements of the Local Law therefore are not intended to regulate the bidding process (cf. Transactive Corp., 92 N.Y.2d at 587-589, 684 N.Y.S.2d 156, 706 N.E.2d 1180) but, rather, those requirements are intended to encourage participation of both labor and industry in apprenticeship programs.   By providing that potential contractors may meet bidding requirements either internally or through apprenticeship program organizations, the Local Law specifically contemplates the participation of organizations such as petitioner Building and Construction Trades Council of Buffalo and Vicinity (Council), an umbrella organization providing education and training support, and petitioner Operating Engineers Local 17 Training Fund (Training Fund), which is a joint labor-management apprenticeship program fund similar to those of the Council's other members.   The admitted failure of respondent County of Erie (County) to abide by its own local law nullified the incentive for contractors to participate in labor-management apprenticeship programs, thereby divesting petitioners of their ability to participate in and promote such programs (see Matter of New York State Assn. of Community Action Agency Bd. Members v. Shaffer, 119 A.D.2d 871, 874, 500 N.Y.S.2d 838;  see generally Matter of Fischbach & Moore v. New York City Tr. Auth., 79 A.D.2d 14, 20, 435 N.Y.S.2d 984, lv. denied 53 N.Y.2d 604, 439 N.Y.S.2d 1028, 422 N.E.2d 583).   Thus, petitioners have standing because the Council has its own specific interest in this litigation, and it represents member unions whose participation in joint labor-management funds such as the Training Fund are directly affected by the County's dispensing with the incentive bidding requirements (see Society of Plastics Indus., 77 N.Y.2d at 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034;  New York State Assn. of Community Action Agency Bd. Members, 119 A.D.2d at 874, 500 N.Y.S.2d 838).   Viewed in light of the intended purpose of the Local Law, I cannot agree with the majority that the alleged harm is speculative, nor is it a “[g]rievance[ ] generalized to the degree that [it becomes a] broad policy complaint[ ]” (Rudder, 93 N.Y.2d at 280, 689 N.Y.S.2d 701, 711 N.E.2d 978;  cf. Society of Plastics Indus., 77 N.Y.2d at 777, 570 N.Y.S.2d 778, 573 N.E.2d 1034).

In addition, I agree with Supreme Court that the Local Law is not preempted by the Employee Retirement Income Security Act of 1974 (29 USC § 1001 et seq.;   see California Div. of Labor Stds. Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325, 117 S.Ct. 832, 136 L.Ed.2d 791).   Further, the failure of the County to comply with a substantive portion of a properly enacted local law cannot be waived as a technical irregularity (cf. Matter of Eldor Contr. Corp. v. Suffolk County Water Auth., 270 A.D.2d 262, 703 N.Y.S.2d 535).   Thus, in my view, invalidation of the contract was required by the Local Law.

MEMORANDUM: