IN RE: MARY'S BUS SERVICE INC. et al.

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

IN RE: MARY'S BUS SERVICE INC. et al., Respondents, v. RONDOUT VALLEY CENTRAL SCHOOL DISTRICT, Appellant, et al., Respondents.

Decided: April 24, 1997

Before CARDONA, P.J., and MERCURE, CASEY, SPAIN and CARPINELLO, JJ. Raymond G. Kuntz P.C. (Mary Lou Philbin, of counsel), Bedford Village, for appellant. Greenberg & Gaiman (Robert S. Gaiman, of counsel), Rock Hill, for Mary's Bus Service Inc. and another, respondents.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 16, 1995 in Ulster County, which, in a proceeding pursuant to CPLR article 78, denied respondent Rondout Valley Central School District's motion to dismiss the petition against it for failure to file a notice of claim.

On July 6, 1994, respondent Rondout Valley Central School District (hereinafter the School District) retracted a bid award previously granted to petitioner Mary's Bus Service Inc. (hereinafter the Bus Service) to provide student transportation on 40 bus routes during the 1994-1995 school year.1  The bid award was subsequently granted to respondents Arthur F. Mulligan Transportation Inc., James C. Hoyt Transportation Inc. and GJM Transportation Inc. (hereinafter collectively referred to as respondents), as the next lowest bidders for the various routes.   The Bus Service was ultimately awarded one bus route.

In October 1994, the Bus Service and petitioner Mary Marl commenced this CPLR article 78 proceeding against the School District and respondents.   The crux of petitioners' allegations against the School District is that it overexpended tax moneys in the amount of $263,736 when it arbitrarily retracted the bid award.   It is further alleged that the School District, in contravention of General Municipal Law § 103, arbitrarily (1) changed the bid specifications without notice, (2) deprived the Bus Service of sufficient time to obtain a bond, and (3) refused to accept partial funds when the Bus Service was unable to come up with the entire amount of the bond.   In lieu of answering, the School District moved to dismiss the petition on the ground that petitioners failed to file a notice of claim.   Supreme Court denied the motion, prompting this appeal.

 The School District argues that petitioners' proceeding against it is barred by Education Law § 3813(1), which requires the filing of a notice of claim within three months after the accrual of a cause of action.   In determining the applicability of the three-month notice of claim requirement to proceedings involving school districts, however, there is a distinction between “proceedings which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest” (Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 379-380, 362 N.Y.S.2d 139, 320 N.E.2d 859 [emphasis supplied] ), because Education Law § 3813(1) is applicable to the former but not the latter (see, id.;   see also, Doyle v. Board of Educ. of Deer Park Union Free School Dist., 230 A.D.2d 820, 646 N.Y.S.2d 842).

 Notably, the intended beneficiary of General Municipal Law § 103-which requires competitive bidding for public contracts-is the public (i.e., taxpayers) (see, e.g., Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v. New York State Thruway Auth., 88 N.Y.2d 56, 67, 643 N.Y.S.2d 480, 666 N.E.2d 185;  Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth., 66 N.Y.2d 144, 148, 495 N.Y.S.2d 340, 485 N.E.2d 1005;  Matter of Construction Contrs. Assn. of Hudson Val. v. Board of Trustees, Orange County Community Coll., 192 A.D.2d 265, 267, 600 N.Y.S.2d 953;  Kinetic Concepts v. County of Erie, 172 A.D.2d 1031, 569 N.Y.S.2d 290).   Since the purpose of this statute is to protect the public, we find that the instant proceeding does not solely seek enforcement of a private right, but also falls within the vindication of a public interest category (see, e.g., Matter of Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. v. Sweeney, 89 N.Y.2d 395, 654 N.Y.S.2d 92, 676 N.E.2d 854;  Matter of De Paoli v. Board of Educ., Somers Cent. School Dist., 92 A.D.2d 894, 459 N.Y.S.2d 883;  Mesivta of Forest Hills Inst. v. City of New York, 79 A.D.2d 676, 677, 434 N.Y.S.2d 40, revd. on other grounds 58 N.Y.2d 1014, 1016, 462 N.Y.S.2d 433, 448 N.E.2d 1344).2  Accordingly, Supreme Court correctly found that no notice of claim was required.

 To the extent that the School District asserts on appeal that Marl lacks standing to bring this proceeding, we note that it failed to raise standing as a basis upon which to dismiss the petition.   Accordingly, this issue is not properly before this court (see, Matter of Van Wormer v. Leversee, 87 A.D.2d 942, 943, 451 N.Y.S.2d 237).

ORDERED that the judgment is affirmed, with costs.

FOOTNOTES

1.   In the July 6, 1994 letter, petitioner Mary Marl was informed that “[t]he withdrawal was based upon your being unable to provide a performance bond or a certified check in the amount specified in the bid specifications and awards” in contradiction of the express terms of the notice to bidders which did not require the posting of a bond until five days before the first day of school.   To the extent that the School District attempts to justify its decision to retract the bid award by referring to facts in its brief that are outside the record, we disapprove of this practice.

2.   To the extent that the School District relies on this court's decision in Matter of Kernan Lib. Off. Group v. Board of Educ. of City School Dist. of City of Schenectady, 187 A.D.2d 861, 589 N.Y.S.2d 953, we note, upon our review of the record and briefs in that case, that the issue of whether a public interest was being vindicated was not raised by the parties.

CARPINELLO, Justice.

CARDONA, P.J., and MERCURE, CASEY and SPAIN, JJ., concur.

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