Citiwide News, Inc. v. New York City Transit Authority

99 A.D.2d 1026, 473 N.Y.S.2d 816, 1984 N.Y. App. Div. LEXIS 17463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1984
• Status: Published

Opinions

Judgment of the Supreme Court, New York County (Edward J. Greenfield, J.), entered October 14, 1983, denying petitioner’s application under CPLR article 78 and dismissing the petition, is reversed, on the law, without costs, the petition granted, and it is held that the construction segment of the newsstand franchise agreement is a public work requiring competitive bidding under subdivision 1 of section 1209 of the Public Authorities Law. 11 Although the construction obligation, which requires the franchisee to build over 100 newsstands at an approximate cost of $2.5 million, is small in comparison to the $62 million in revenues that will be paid the authority, it is, nonetheless, an indirect expenditure of public money and therefore a public work within the purview of subdivision 1 of section 1209. This is so because if the franchisee were not required to construct the stands, then the authority could exact a correspondingly higher return under the franchise agreement. H Moreover, the conclusion that the construction constitutes a public work is further supported by the fact that, at the end of the 15-year term of the franchise agreement, the newsstands will be the property of the authority. The authority should not be permitted to circumvent the salutary requirement of competitive bidding by offsetting the cost of a public work against revenues due under a franchise agreement. We are buttressed in our conclusion by the fact that the successful franchisee increased its initial proposal from $25,470,000 to $62,210,000 before being awarded the license. A proposal with this magnitude of change should be held to a strict interpretation of the competitive bidding requirement. Concur — Kupferman, J. P., Carro and Asch, JJ.