B.C.I. Indus. Catering, Inc. v. Town of Huntington

• Decision Date: 11 May 1998
• Citation: 250 A.D.2d 675,674 N.Y.S.2d 373
• Parties: , 1998 N.Y. Slip Op. 4635 In the Matter of B.C.I. INDUSTRIAL CATERING, INCORPORATED, Respondent, v. TOWN OF HUNTINGTON, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 373

674 N.Y.S.2d 373

250 A.D.2d 675, 1998 N.Y. Slip Op. 4635

In the Matter of B.C.I. INDUSTRIAL CATERING, INCORPORATED, Respondent, v. TOWN OF HUNTINGTON, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

May 11, 1998.

Lawrence W. Cregan, Town Attorney, Huntington (John C. Bace, of counsel), for appellants.

Poli & LaMura, Northport (John G. Poli, III, of counsel), for respondent.

Before SULLIVAN, J.P., and PIZZUTO, ALTMAN and FRIEDMANN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a resolution of the Town Board of the Town of Huntington, dated March 26, 1996, which awarded a food service license and concession contract for the Dix Hills Ice Rink, Swimming Pool, and Golf Course to D & J Refreshments, the appeal is from an order of the Supreme Court, Suffolk County (Gerard, J.), entered May 22, 1997, which, upon granting the respondent's motion for reargument, vacated its earlier determination, annulled the Town Board's resolution, and remitted the matter to the Town Board for re-examination of its determination not to award the food service license and concession contract to the respondent, and to give the respondent an opportunity to address the objections of the Town Board.

ORDERED that on the court's own motion, the appellants' notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c] ); and it is further,

ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

The respondent and D & J Refreshments (hereinafter D & J) submitted bids for a food service license and concession contract to be awarded by the Town of Huntington (hereinafter the Town). The Town accepted D & J's bid and the respondent subsequently commenced this proceeding to review the Town's determination. While initially denying the petition, upon reargument, the Supreme Court annulled the determination and remitted the matter to the Town Board.

The appellants correctly contend that the Supreme Court erred in applying General Municipal Law § 103, the competitive-bidding statute, to the selection process in this case. By its terms, the statute applies only to contracts for public work or purchase contracts (see, Matter of Exley v. Village of Endicott, 51 N.Y.2d 426, 431, 434 N.Y.S.2d 922, 415 N.E.2d 913). "[A] contract in the nature of a lease by a public entity as lessor or by which a franchise or license is granted need not, generally, be subjected to the competitive bidding process, for such a contract does not...