Application of L v. The N.Y. city Dep't of Educ., 4710N

• Decision Date: 05 April 2011
• Docket Number: 104001/08,4710N
• Citation: 2011 NY Slip Op 02742
• Parties: Application of L & M Bus Corp., et al., Petitioners-Respondents, v. The New York City Department of Education, et al., Respondents-Appellants. Local 1181-1061, Amalgamated Transit Union, AFL-CIO, Intervenor-Appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 02742

Application of L & M Bus Corp., et al., Petitioners-Respondents, v. The New York City Department of Education, et al., Respondents-Appellants Local 1181-1061, Amalgamated Transit Union, AFL-CIO, Intervenor-Appellant.

4710N

104001/08

Supreme Court Of The State Of New York

Appellate Division

First Judicial Department

Decided on April 5, 2011

Sweeny, J.P., Renwick, Richter, Manzanet-Daniels, JJ.

Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for New York City Department of Education, The Board of Education of the City of New York and David N. Ross, appellants.

Meyer, Suozzi, English & Klein, P.C., New York (Richard A. Brook of counsel), for Local 1181-1061, Amalgamated Transit Union, AFL-CIO, appellant.

Wasserman Grubin & Rogers, LLP, New York (John F. Grubin of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered July 13, 2009, insofar as it granted petitioners' motion for reasonable costs and attorneys' fees as against respondents and intervenor, unanimously reversed, on the facts, without costs, and the motion denied.

Petitioners brought this CPLR article 78 proceeding to challenge, inter alia, two bid specifications in the request for bids to transport "Pre-K and Early Intervention Program Participants" issued by respondent Department of Education (DOE). The two specifications are: (1) that the vendor hire, and assume all the prior payroll costs of, transportation workers named on two "Master Seniority Lists" of workers employed under previous transportation contracts with DOE ("Employee Protection Provisions" [EPP]), and (2) that the vendor procure insurance covering sexual molestation, harassment, assault or similar acts. The court granted petitioners' motion as against respondents for costs and attorneys' fees incurred in responding to their opposition to the challenge to the insurance requirement and as against respondents and intervenor for reasonable costs and attorneys' fees incurred in responding to their opposition to the challenge to the EPP.

In its December 2008 decision on the petition, the court found, inter alia, that the EPP were not shown to be rationally related to the purposes of competitive bidding or essential to the public interest. The following month, petitioners brought the instant motion for costs and attorneys' fees on the ground of frivolous conduct. On appeal from the decision on the petition,this Court, inter alia, affirmed the striking of the EPP (71 AD3d 127, 133-134 [2009]). However, we denied petitioners' motion for costs and attorneys' fees. The Court of Appeals has granted leave to appeal (15 NY3d 889 [2010]).

Having denied petitioners' previous motion for costs and attorneys' fees in connection with the EPP issue, we find that the instant award of costs and attorneys' fees on the ground of frivolous conduct was unwarranted. Respondents' and intervenor's arguments were not "completely without merit in law" (see 22 NYCRR 130-1.1[c][1]); petitioners cite no existing law that addresses, let alone precludes, EPP in public bidding contracts (see General Municipal Law § 103; cf. Cattani v Marfuggi, 74 AD3d 553, 555 [2010], lv dismissed 15 NY3d 900 [2010])....