Opinion
2002-07441
Argued May 23, 2003.
June 16, 2003.
In an action, inter alia, for a judgment declaring an agreement dated June 21, 2001, invalid based on violations of General Municipal Law § 103 and Nassau County Charter § 2206, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Austin, J.), dated June 25, 2002, which granted the defendants' separate motions to dismiss the complaint insofar as asserted against them for failure to state a cause of action pursuant to CPLR 3211(a)(7).
Louis D. Stober, Jr., LLC, Garden City, N.Y. (Danielle N. Nucci of counsel), for appellants.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (David B. Goldin of counsel), for respondent County of Nassau.
Farrell Fritz, P.C., Uniondale, N.Y. (Jennifer M. Mone of counsel), for respondent Nassau Heritage.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment in favor of the defendants declaring that the agreement dated June 21, 2001, is valid and is not in violation of General Municipal Law § 103 and Nassau County Charter § 2206.
The defendant County of Nassau entered into an operational agreement (hereinafter the agreement) with the defendant Nassau Heritage (hereinafter Heritage), dated June 21, 2001, pursuant to which Heritage was granted an exclusive license to manage and operate the museum complex known as the Mitchel North site in Nassau County. Pursuant to the agreement, Heritage was obligated to provide for, inter alia, fund-raising, marketing, promotion, custodial services for the County's aerospace collections, curatorial services, and public education. The plaintiffs commenced this action alleging that the agreement is violative of General Municipal Law § 103 and Nassau County Charter § 2206. We disagree.
The agreement is of a hybrid nature predominantly providing for professional services requiring specialized skill and expertise. Thus, the agreement falls outside the ambit of the competitive bidding statutes (see Matter of Exley v. Village of Endicott, 51 N.Y.2d 426, 431-432; Matter of Schulz v. Warren County Bd. of Supervisors, 179 A.D.2d 118, 122-123; Hurd v. Erie County, 34 A.D.2d 289, 292, citing People ex rel. Smith v. Flagg, 17 N.Y. 584, 587). Although the agreement gives Heritage the right, inter alia, to undertake certain capital improvements at the site, the essential character of the agreement as one requiring the provision of specialized services not subject to statutory competitive bidding requirements is not altered (see Matter of Citiwide News v. New York City Tr. Auth., 62 N.Y.2d 464, 471-472; Matter of B.C.I. Indus. Catering v. Town of Huntington, 250 A.D.2d 675, 676). The agreement also does not violate Nassau County Charter § 2206, which provides an express exception for personal service contracts (see Matter of Long Is. Signal Corp. v. County of Nassau, 51 Misc.2d 320, 331). Accordingly, the Supreme Court properly determined that the complaint fails to state a cause of action since the complaint contains only bare legal conclusions and factual claims which are flatly contradicted by the documentary evidence (see Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 162; Gertler v. Goodgold, 107 A.D.2d 481, 485, affd 66 N.Y.2d 946).
We note, however, that since this is, in part, a declaratory judgment action, the Supreme Court should have entered a judgment declaring that the agreement is not violative of General Municipal Law § 103 and Nassau County Charter § 2206 (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
SANTUCCI, J.P., FLORIO, SCHMIDT and ADAMS, JJ., concur.