Laborers' Int'l Union v. NYS Dept. Transp.

• Decision Date: 14 November 2000
• Citation: 719 N.Y.S.2d 354
• Parties: (A.D. 3 Dept. 2001) In the Matter of LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 17, et al., Respondents, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Appellant. 87419 : THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

Page 354

719 N.Y.S.2d 354 (A.D. 3 Dept. 2001)

In the Matter of LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 17, et al., Respondents, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Appellant.

87419

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: November 14, 2000

Decided and Entered: January 18, 2001

Eliot Spitzer, Attorney-General (Frank K. Walsh of counsel), Albany, for Appellant.

Meyer, Suozzi, English & Klein (Marty G. Glennon of counsel), Mineola, for Respondents.

Before: Cardona, P.J., Mercure, Crew III, Peters and Rose, JJ.

Mercure, J.

Appeals (1) from an order of the Supreme Court (Ceresia Jr., J.), entered September 30, 1999 in Albany County, which, in a proceeding pursuant to CPLR article 78, partially denied respondent's motion to dismiss the petition, and (2) from a judgment of said court, entered September 30, 1999 in Albany County, which granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent denying petitioners' request for the production of a certain document under the Freedom of Information Law.

Respondent is the owner of Stewart Airport in Orange County. On March 26, 1998, respondent and Cargex Newburgh Properties Inc., the "construction arm of Federal Express" (hereinafter FedEx), entered into a ground lease (hereinafter the lease) for construction of an approximately 125,443-square-foot building with associated vehicle parking, truck docking and related improvements for use as a FedEx sorting and distribution facility at the airport. FedEx immediately gave public notice of the nature and scope of its proposed construction project, sought bids from all subtrades and commenced work on the project.

Shortly after entering into the lease, respondent submitted the lease to the Comptroller and the Attorney-General for final approval. On April 15, 1998, petitioner L. Todd Diorio, vice-president of petitioner Laborers' International Union of North America, Local No. 17 (hereinafter the Union), requested a copy of the lease from respondent pursuant to the Freedom of Information Law (Public Officers Law art. 6) (hereinafter FOIL). Reasoning that "the subject lease is not yet approved and disclosure would impair present or imminent contract awards or collective bargaining negotiations", respondent denied the request pursuant to Public Officers Law § 87(2)(c). On administrative appeal, the Union consented to the redaction of the dollar amount of the lease and argued that, absent that information, the request would not fall within Public Officers Law § 87(2)(c). On July 7, 1998, respondent's appeal unit reaffirmed the denial of access to the lease until such time as it was "fully executed", i.e., approved by the Comptroller.¹

On September 17, 1998, petitioners commenced this CPLR article 78 proceeding seeking, as relevant to this appeal, judgment requiring respondent to disclose the lease. Respondent immediately provided petitioners with a copy of the executed lease, which had been approved by the Comptroller on July 10, 1998, and moved to dismiss the petition on the ground among others, of mootness. Supreme Court denied that motion, directed respondent to serve an answer and ultimately rendered judgment in favor of petitioners to the extent of granting their request for production of the lease but permanently stayed enforcement because the lease had already been produced. Respondent appeals from both the order partially denying its motion to dismiss and Supreme Court's final judgment.²

We affirm. Initially, we agree with Supreme Court's conclusion that, although the branch of the proceeding seeking to compel production of the lease was rendered moot by respondent's production of the instrument immediately upon commencement of the proceeding, the circumstances presented in this case bring it within the exception to the mootness doctrine. In order for that doctrine to apply, the following three prongs must be satisfied: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715; see, Matter of Daily News v Teresi, 275 AD2d 812, 813, 712 NYS2d 704, 705). Given respondent's concession concerning its "longstanding practice of * * * withhold[ing] draft leases from public access until such time as they have been approved by both the [Attorney-General] and [the Comptroller]", it seems quite clear that there is a great likelihood of repetition of the issue presented in this case. Second, respondent's substantial control over the timing of the contract, the approvals and the ultimate production of the demanded material places it in a position to almost invariably render a proceeding moot, just as it did in this case. Third, although prior cases have prohibited State officials' shielding of leases and contracts that have not yet been formally approved (see, Matter of Cross-Sound Ferry Servs. v Department of Transp., 219 AD2d 346, 349; Community Bd. 7 of Borough of Manhattan v Schaffer, 150 Misc 2d 770, 772-773, affd 183 AD2d 422, revd on other grounds 84 NY2d 148), none presented the issue in the particular context of the present case. We view the issue presented here as both novel and substantial...