89 Misc. 2d 279 | N.Y. Sup. Ct. | 1977
Petitioner seeks judgment pursuant to CPLR article 78 declaring void and unenforceable a certain construction contract entered into between respondent Dominick Dan Alonzo, Inc., and the State of New York.
It appears that petitioner is a not-for-profit corporation duly organized under the laws of New York and has a membership comprised of general contractors engaged in public works construction. This proceeding involves its challenge to the award of a public building contract by the State to respondent Alonzo, Inc., without advertising for competitive bidding and without separate bidding categories as required by statute.
The contract in question provides for the performance of
Obviously, there has been a failure on the part of the State to comply with the notice and public bidding requirements mandated by. statute. (Public Buildings Law, § 8, subds 2, 6; State Finance Law, § 144, subd 1.) However, respondents contend that the procedure used in awarding the contract here is a lawful exercise of the sovereign power to meet an emergency. (NY Const, art III, § 25; cf. General Municipal Law, § 103, subd 4.) The issue thus presented is whether the Department of Correctional Services was indeed confronted with a situation which may be denominated an emergency so as to excuse the State from compliance with statutes clearly designed to promote the public interest in competitive bidding.
In support of their position the respondents present certain statistics demonstrating a developing problem in prison overcrowding and potential dangers arising therefrom. It is noted that the inmate population under the supervision of Corree
Although the State Finance Law does not deal with emergencies in the matter of State contracts, a reference to the General Municipal Law definition is helpful, since the underlying purpose of both statutes, insofar as they relate to bidding, is similar. An emergency must involve an accident or unforeseen occurrence requiring immediate action; it is unanticipated or fortuitous; it is a sudden or unexpected occasion for action and involves a pressing necessity. (General Municipal Law, § 103, subd 4; 40 NY Jur, Municipal Corporations, § 834; Grimm v City of Troy, 60 Misc 2d 579; Black’s Law Dictionary [4th ed], p 615.) The court is not persuaded that an emergency of the type necessary to excuse public bidding exists in the Department of Correctional Services. The overcrowding problem became obvious at Attica as far back as 1971. As early as January of 1976 the executive budget for the Department of Correctional Services noted the 1975-1976 increase in prison population and projected a 1,500 bed shortfall by March of 1977. Further, it appears from the affidavit of the deputy commissioner that the shortfall is not as serious as originally projected in the executive budget. The court has been furnished with the voluminous and detailed specifications used in connection with the closed bidding on the Otis-ville work. This is additional proof of the ability of the State officials involved to expedite the necessary work preliminary
The contention by respondents that the petitioner has no standing to bring this proceeding is rejected. (State Finance Law, art 7-A; Empire Elec. Contrs. Assn. v Fabber, 71 Misc 2d 167; 8 Weinstein-Korn-Miller, NY Civ Prac, par 7802.01, n 2.)
Finally, it appearing that there was no fraud, collusion or wrongdoing on the part of respondent Alonzo, Inc., there should not be a total forfeiture but only a refund to the State of the amount, if any, representing the bargain lost by the award of the contract without competitive bidding, such damages to be determined at a hearing. (Elia Bldg. Co. v New York State Urban Dev. Corp., 54 AD2d 337.)