| Matter of Bill's Towing Serv., Inc. v County of Nassau |
| 2011 NY Slip Op 02873 [83 AD3d 698] |
| April 5, 2011 |
| Appellate Division, Second Department |
| In the Matter of Bill's Towing Service, Inc.,Respondent, v County of Nassau, Respondent, and C&R Automotive, Inc., DoingBusiness as AAA-1 Towing, Appellant. |
—[*1] Pinks, Arbeit & Nemeth, Hauppauge, N.Y. (Robert S. Arbeit of counsel), forpetitioner-respondent.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of theCounty of Nassau accepting a bid by C&R Automotive, Inc., doing business as AAA-1 Towing,for a towing and impound contract, C&R Automotive, Inc., doing business as AAA-1 Towing,appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Murphy,J.), dated September 1, 2010, which denied its motion pursuant to CPLR 3211 (a) (5) and 7804(f) to dismiss the proceeding as barred by the statute of limitations and, in effect, granted thepetition to the extent of reopening the bidding process for the subject contract.
Ordered that the order and judgment is modified, on the law, by deleting the provisionthereof, in effect, granting the petition to the extent of reopening the bidding process for thesubject contract; as so modified, the order and judgment is affirmed, with costs to the appellant,and the matter is remitted to the Supreme Court, Nassau County, for further proceedingsconsistent herewith, and the appellant's time to answer the petition is extended until 20 days afterservice upon it of a copy of this decision and order (see CPLR 7804 [f]).
The County of Nassau published a formal bid proposal for a towing and impound contract forvarious zones within the County. On May 26, 2009, all bids were opened at a public meeting.C&R Automotive Inc., doing business as AAA-1 Towing (hereinafter the appellant), was thehighest bidder, and the County accepted the appellant's bid.
The petitioner, the second highest bidder, commenced this proceeding pursuant to CPLRarticle 78, inter alia, to review the acceptance of the appellant's bid by the County, and to annulthe award of the contract to the appellant. The petitioner alleged that the appellant and itsfacilities did not satisfy the terms and conditions of the bid proposal. The appellant moved todismiss the petition on the ground that it was barred by the statute of limitations. The SupremeCourt denied the appellant's motion and, in effect, granted the petition to the extent of reopeningthe bidding process. We modify.
A proceeding pursuant to CPLR article 78 "must be commenced within four months after thedetermination to be reviewed becomes final and binding upon the petitioner" (CPLR 217 [1]).[*2]"A determination generally becomes binding when theaggrieved party is 'notified' " (Matter of Village of Westbury v Department of Transp. of Stateof N.Y., 75 NY2d 62, 72 [1989]). The burden rests on the party seeking to assert the statuteof limitations as a defense to establish that the petitioner was provided notice of thedetermination more than four months before the proceeding was commenced (see Berkshire Nursing Ctr., Inc. vNovello, 13 AD3d 327, 328 [2004]). The appellant failed to do so here. While thepetitioner was aware that the appellant submitted the highest bid on May 26, 2009, there was noevidence that the petitioner was advised that the bid was accepted by the County on that date, oron any other date more than four months before this proceeding was commenced (cf. Matter of Boston Culinary Group, Inc. vNew York State Olympic Regional Dev. Auth., 18 AD3d 1103 [2005]).
However, it was error for the Supreme Court to reach the merits of the petition and, in effect,grant it to the extent of reopening the bidding process without affording the appellant anopportunity to submit an answer and objections in point of law (see CPLR 7804 [f]; Matter of Bethelite Community Church,Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y., 8NY3d 1001, 1002 [2007]; Matter ofCivil Serv. Empls. Assn. Inc. v Diana, 48 AD3d 803, 804 [2008]; Matter of Smiler v Board of Educ., 15AD3d 409, 410 [2005]). On the record before us, it cannot be said that "the facts are so fullypresented in the papers of the respective parties that it is clear that no dispute as to the facts existsand no prejudice will result from the failure to require an answer" (Matter of Nassau BOCESCent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100,102 [1984]; see Matter of Timmons vGreen, 57 AD3d 1393, 1394-1395 [2008]).
We note that the Supreme Court, in granting the petition to the extent of reopening thebidding process, did not make a finding that the County's acceptance of the bid and award of thecontract to the appellant "was made in violation of lawful procedure, was affected by an error oflaw or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]). Upon remittal,that standard should be applied in determining the merits of the petition. Covello, J.P., Hall, Lottand Cohen, JJ., concur.