Bothar Constr., LLC v. Dominguez

201 A.D.3d 1231

162 N.Y.S.3d 503

In the Matter of BOTHAR CONSTRUCTION, LLC, et al., Appellants,

v.Marie Therese DOMINGUEZ, as Commissioner of Transportation, et al., Respondents.

532559

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

Calendar Date: December 16, 2021

Decided and Entered: January 20, 2022

Couch White, LLP, Albany (Joel M. Howard III of counsel), for appellants.

Letitia James, Attorney General, Albany (Allyson B. Levine of counsel), for Commissioner of Transportation and others, respondents.

Adams LeClair, LLP, Rochester (Richard T. Bell Jr. of counsel), for Crane Hogan Structural Systems, Inc., respondent.

Before: Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a judgment of the Supreme Court (McGrath, J.), entered October 27, 2020 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents’ motions to dismiss the petition/complaint.

In May 2019, respondent Department of Transportation (hereinafter DOT) solicited bids to construct a 3.1–mile segment of the Empire State Trail in Onondaga County. Although petitioner CCI Companies, Inc. submitted the lowest bid, DOT rejected all bids without explanation. In August 2019, DOT rebid the project after modifying the bid specifications. Approximately three weeks later, DOT supplemented the specifications requiring potential bidders to include a project labor agreement.¹ CCI, as an open-shop employer,² elected not to submit a bid for this modified project. In September 2019, the project was awarded to the lowest bidder, respondent Crane Hogan Structural Systems, Inc. Shortly thereafter, CCI filed a protest with respondent Bureau of Contracts, a unit of respondent Office of the State Comptroller (hereinafter OSC), alleging that DOT illegally included the project labor agreement in the bid specifications, thus increasing the cost of the project by $1.6 million despite the purportedly smaller scope of specifications. In December 2019, OSC denied CCI's protest and approved the award of the contract to Crane Hogan.

In August 2020, petitioners commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment challenging OSC's protest determination, seeking a declaration that the project labor agreement constituted an unlawful waste of taxpayer funds and to vacate and annul the contract. Petitioners also moved to temporarily enjoin the performance of the contract and payment of state funds pursuant to the contract. Supreme Court (Platkin, J.) denied the motion for injunctive relief. Thereafter, respondents moved to dismiss the petition/complaint contending, among other things, that petitioners lacked standing and their claims were time-barred. Supreme Court (McGrath, J.) granted respondents’ motions finding that petitioners lacked standing. This appeal by petitioners ensued.

Respondents contend that this appeal should be dismissed as moot because the project is substantially complete. "Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy" ( Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] [citation omitted]). Where a change in circumstances involves the substantial completion of construction, "courts must consider several factors, including whether the challengers sought preliminary injunctive relief or otherwise attempted to preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation" ( Town of N. Elba v. Grimditch, 131 A.D.3d 150, 156–157, 13 N.Y.S.3d 601 [2015] [internal quotation marks, brackets and citations omitted], lv denied 26 N.Y.3d 903, 2015 WL 5150754 [2015] ). Although injunctive relief is theoretically available, as a project can be dismantled, courts consider how far the work has progressed toward completion in determining mootness (see Matter of Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 A.D.3d 1475, 1477, 944 N.Y.S.2d 660 [2012] ). A determination of mootness is fact-driven (see Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d at 173, 746 N.Y.S.2d 429, 774 N.E.2d 193 ).

Crane Hogan received approval of the contract and notice to proceed on December 20, 2019. It began construction in February 2020 by cutting down trees and removing vegetation. In March 2020, it began excavating the shoulder and roadway and replaced curbs and sidewalks. Construction has proceeded for two years and approximately $17.7 million out of the $19 million in funds allocated to the project have been disbursed. This project involves a six-lane major thoroughfare in the City of Syracuse, Onondaga County, and has been disruptive to traffic and adjacent businesses. Although petitioners sought injunctive relief in August 2020, this was eight months after the contract was awarded and six months after construction began. Petitioner did not seek any injunctive relief from this Court.

Petitioners did not make sufficient efforts to preserve the status quo and safeguard their rights. Petitioners only sought to stay construction once, six months after construction commenced (see Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004] ; Matter of Sierra Club v. New York State Dept. of Envtl. Conservation, 169 A.D.3d 1485, 1487, 94 N.Y.S.3d 741 [2019] ; Matter of Kowalczyk v. Town of Amsterdam Zoning Bd. of Appeals, 95 A.D.3d at 1477, 944 N.Y.S.2d 660 ]). Although petitioners assert that they did not delay seeking injunctive relief, as the typical construction season in New York runs from April to November and the statute of limitations was tolled at the time, the construction season is extremely dependent upon the weather and fluctuates according to the weather conditions. It is not unusual for construction to begin in February and continue through December. The ongoing construction was highly visible to the public and to petitioners. Furthermore, staying the statute of limitations did not...