60 Misc. 2d 579 | N.Y. Sup. Ct. | 1969
This is an application for a temporary injunction restraining the defendants from paying out or collecting moneys of the City of Troy for purchase of garbage equipment. The matter has been brought before this court by an order requiring the defendants to show cause why the injunction should not be granted. The underlying action giving rise to this application is a taxpayers’ action challenging the purchase of garbage disposal equipment in alleged violation of the
The applicable law is confined to the City Charter for the City of Troy, New York, effective January 1, 1964, and the General Municipal Law of the State of New York. Section 5.64 of the Charter provides as follows: ‘ ‘ Competition on Purchases and Sales. Purchases in excess of one thousand dollars, except purchases of real estate, shall be by contract to the lowest responsible bidder and all sales in excess of five hundred dollars, except sales of real property, shall be to the highest bidder, in both cases after public notice of the proposed purchases or sales and the receipts of sealed bids therefor unless the city council, by ordinance, determines that it is impossible or impractical to purchase or to sell in such manner. ’ ’
On May 12,1969, the City Council of the City of Troy approved an ordinance providing as follows:
“ The City of Troy in City Council Convened Ordains as follows:
‘ ‘ 1. That pursuant to § 564 of the City Charter of the City of Troy, it is hereby determined that it is impossible and impractical to purchase garbage disposal equipment after receipt of public bids therefore since the time in which to accomplish public bidding would exceed the time required to acquire necessary equipment with which to collect and dispose of garbage upon expiration of contractural agreements therefore.
“ 2. That the purchasing agent is hereby authorized to purchase equipment of the type described on the annexed exhibit at the best price and under the most advantageous circumstances for the City of Troy.
“ This ordinance is to take effect immediately.”
It appears from the papers presented upon this application that on May 12, 1969, the City Manager of Troy canceled an existing contract with a private garbage disposal company for collection of garbage in the City of Troy, such cancellation to become effective on May 17, 1969.
Section 12.12 of the City Charter provides as follows:1 ‘ Second Class Cities Law Superseded. Chapter 473 of the laws of 1906, known as the second class cities law, as amended generally by chapter 55 of the laws of 1909 and specifically by other statutes, and as superseded from time to time by various local laws adopted by the common council of the city of Troy, is hereby superseded in its entirety in so far as it applies to the city of Troy.”
Subdivision 2 of this section outlines the procedure for competitive bidding. The General Municipal Law applies generally to all municipal corporations, including counties, cities, towns and villages and in addition covers other political subdivisions. As appears from section 103, the requirements for competitive bidding must be enforced, absent an act of the Legislature or a local law adopted prior to September 1, 1953. The City Charter of Troy was approved on November 3, 1959; therefore, the General Municipal Law must govern.
Subdivision 4 of section 103 provides: “ Notwithstanding the provisions of subdivision one of this section, in the case of a public emergency arising out of an accident or other unforeseen occurrence or condition whereby circumstances affecting public buildings, public property or the life, health, safety or property of the inhabitants of a political subdivision or district therein, require immediate action which cannot await competitive bidding, contracts for public work or the purchase of supplies, material or equipment may be let by the appropriate officer, board or agency of a political subdivision or district therein.”
Nowhere in the papers before the court is there a specific reference to a public emergency. We must then turn back to the City Charter for its requirements. Section 3.14 provides as follows: ‘ ‘ Public Emergencies. In the case of any public emergency such as conflagration, riot, storm, earthquake or other unusual peril to the lives or properties of the citizens of Troy, it shall be the duty of the city manager to declare such public emergency and to summon all the forces of the city for the purpose of taking all possible protective measures. The manager shall also have power to summon deputize and otherwise employ such other persons as he may deem necessary in such protective measures. Any expense incurred under the provisions of this section shall be proper charges against the city.”
The court is constrained to adopt a course which must give first consideration to the citizens of Troy. Section 103 of the General Municipal Law, which governs the city’s conduct, provides in subdivision 4 for emergency situations. An ‘ ‘ unforeseen ” occurrence or condition is one which is not anticipated, which creates a situation which cannot be remedied by the exercise of reasonable care or which is fortuitous. (Rodin v. Director of Purchasing of Town of Hempstead, 38 Misc 2d 362.) Subdivision 4 provides an exception to bidding requirements where circumstances affecting the life, health or safety of the citizens of Troy require immediate action but situations of this kind must be such as cannot reasonably be foreseen in time to advertise for bids. The court does not at this juncture pass upon or consider the merits of the underlying action herein, for it may well develop upon a trial that the allegations of the com