Comptroller of New York v. Mayor of New York

852 N.E.2d 1144, 7 N.Y.3d 256
CourtNew York Court of Appeals
DecidedJune 29, 2006
StatusPublished
Cited by8 cases

This text of 852 N.E.2d 1144 (Comptroller of New York v. Mayor of New York) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Comptroller of New York v. Mayor of New York, 852 N.E.2d 1144, 7 N.Y.3d 256 (N.Y. 2006).

Opinion

OPINION OF THE COURT

Chief Judge Kaye.

In July 2003, in a novel revenue-raising venture, the City of New York created the Marketing Development Corporation (MDC), to develop innovative public-private partnerships — using the City’s well-known image and resources — to promote New York City around the globe and generate jobs, revenue and tourism. The dispute before us centers on a concession contract between the City, MDC and the Department of Citywide Administrative Services (collectively, the City), and Snapple Beverage Corporation — a marketer of popular beverages — in which Snapple drinks would be offered for sale in vending machines on City property, and Snapple through its own initiatives would market the City brand.

When the City presented only the vending — not the marketing — portion of the contract to the New York City Franchise and Concession Review Committee (FCRC) for a public hearing on December 8, 2003 and approval two days later, the Comptroller balked.1 The City then sent the concession agreement to the Comptroller for registration on February 20, 2004, and the Comptroller objected by letter on March 18, 2004. Citing New York City Charter § 328 (b) (ii) and (c), the Comptroller’s concerns rested on two grounds. First, he asserted that the agreement was tinged with official corruption on the part of City officials at MDC. Second, he alleged that filings by the Mayor and the Corporation Counsel — certifying that the procedures for soliciting the agreement were followed, and that the agency had the legal authority to award the contract — were improper because only the vending portion of the contract had been submitted for approval to FCRC. Only the second allegation is at issue on this appeal.

[261]*261By letter dated April 12, 2004, the Mayor responded to the Comptroller, directing him to register the contract pursuant to New York City Charter § 328 (c). On April 21, 2004, the Comptroller brought this combined special proceeding (CPLR art 78) and declaratory judgment action (CPLR 3001), seeking annulment of the contract with Snapple, a declaration that the contract was invalid and could not be implemented, and a declaration that New York City Charter § 362 (a) (defining “concession”) includes intangible property. The Comptroller sought summary judgment declaring that section 362 (a) applies to all types of property; the City cross-moved for summary judgment dismissing the proceeding in its entirety and raised a statute of limitations defense.2

Supreme Court determined that the entire contract had been filed, and Charter § 328 (b) (ii) did not permit the Comptroller to raise an objection attacking only part of it.3 The court rejected the City’s statute of limitations defense, concluding that the last actions the Comptroller challenged — the filing of the contract on February 20, 2004, and the Mayor’s overruling of his objections on April 12, 2004 — were within four months of the commencement of the proceeding for article 78 review and the declaratory judgment claim that grew out of it. Concluding that the statute of limitations had not yet begun to run on the claim regarding the definition of property, the court held that Charter § 362 (a), defining “concession” as “a grant made by an agency for the private use of city-owned property for which the city receives compensation,” did not limit the meaning of “property” to “real property” but included intangible property. The court observed that numerous other Charter provisions used the terms “real” or “personal” when narrowly defining the term property, but section 362 (a) did not and thus the word “property” should be construed broadly to include intellectual property.

The Appellate Division unanimously affirmed, concluding that Charter § 328 (b) (ii) permitted the Comptroller to object only to the existence or nonexistence of the certifications, not to [262]*262look beyond them to inspect the underlying process. Additionally, the Court agreed that the term “property” under Charter § 362 (a) includes intangibles such as intellectual property, recognizing that although the legislative history of the City Charter provision and concessions indicated the provision had been applied predominantly to real property, there was no sign of an intent to so limit its application.4 We now affirm.

As a preliminary matter, we reject the contention advanced by the City and Snapple that the statute of limitations bars the Comptroller’s claim that the contract is invalid because it could not be registered properly under Charter § 328. We disagree that December 10, 2003 — the date of the FCRC vote — was the trigger date for the statute of limitations. As noted recently in Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y. (5 NY3d 30, 34 [2005]), there are two requirements for determining when an agency action is “final and binding upon the petitioner” for article 78 statute of limitations purposes (see CPLR 217 [1]): the agency must have arrived at a definite position on the issue inflicting actual injury, and the injury may not be significantly ameliorated either by further administrative action or steps taken by the complaining party (id. at 34; see also Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540 [2006]).

Here, the agency determination became “final and binding” no earlier than February 20, 2004, the date the City filed the contract with the Comptroller for registration. At that point, the alleged procedural infirmity upon which the Comptroller bases his argument became irrevocable — the contracting parties had executed and filed a final, formal agreement subject to registration under section 328 (b). There was no further ameliorative administrative action expected, and the only steps left for the Comptroller were to set forth his objections on the ground that certification had not been made (§ 328 [b] [ii]), and to bring suit.

We agree with the City and Snapple, however, that the statute of limitations bars the Comptroller’s additional claim that the contract is void based on the Mayor’s failure to obtain total FCRC approval. That claim stems not from any injury asserted by the Comptroller under the Charter, but essentially from his role as an aggrieved voting member of the FCRC. On that claim, the statute began to run on December 8, 2003 — the [263]*263date the Mayor refused to submit the marketing portion of the contract to the FCRC. After that date, no further FCRC action — with respect to the marketing portion of the contract — or steps taken by the Comptroller, other than his vote, were anticipated.5

Turning to the substantive questions, we hold that under settled statutory interpretation principles, the term “property” in Charter § 362 (a) is not limited to “real property.”6 Those same principles of statutory interpretation, however, compel the conclusion that the Comptroller may not, under Charter § 328 (b) (ii), transform a procedure for registering a contract into a substantive investigation of a contract.

Whether the term “property” in section 362 (a) should be limited to real property is, we acknowledge, a close question. Indeed, following approval of the Charter by the voters, Charter drafters Frederick A.O. Schwarz, Jr. (chair of the New York City Charter Revision Commission [NYCCRC] established in January 1989) and Eric Lane (NYCCRC’s executive director and counsel) observed that,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Smith v. State of New York
2022 NY Slip Op 00344 (Appellate Division of the Supreme Court of New York, 2022)
McCrory v. VilLage of Scarsdale
67 A.D.3d 684 (Appellate Division of the Supreme Court of New York, 2009)
Catskill Regional Off-Track Betting Corp. v. New York State Racing & Wagering Board
56 A.D.2d 1027 (Appellate Division of the Supreme Court of New York, 2008)
Walton v. New York State Department of Correctional Services
863 N.E.2d 1001 (New York Court of Appeals, 2007)
City of New York v. City Merchandise, Inc.
211 F. App'x 44 (Second Circuit, 2007)
Nyc Comptroller v. Nyc Mayor
852 N.E.2d 1144 (New York Court of Appeals, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
852 N.E.2d 1144, 7 N.Y.3d 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/comptroller-of-new-york-v-mayor-of-new-york-ny-2006.