HORNBLOWER YACHTS, LLC v. HARVEY, ROSE

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

884
CA 14-00252
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.

IN THE MATTER OF HORNBLOWER YACHTS, LLC,
PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

ROSE HARVEY, COMMISSIONER, NEW YORK STATE OFFICE
OF PARKS, RECREATION AND HISTORIC PRESERVATION,
ANDY BEERS, EXECUTIVE DEPUTY COMMISSIONER, NEW
YORK STATE OFFICE OF PARKS, RECREATION AND
HISTORIC PRESERVATION, NEW YORK STATE OFFICE
OF PARKS, RECREATION AND HISTORIC PRESERVATION,
MAID OF THE MIST CORPORATION, GIL C. QUINIONES,
PRESIDENT AND CHIEF EXECUTIVE OFFICER, NEW YORK
POWER AUTHORITY AND NEW YORK POWER AUTHORITY,
RESPONDENTS-RESPONDENTS.

KING & SPALDING LLP, NEW YORK CITY (EDWARD G. KEHOE OF COUNSEL), AND
JOHN P. BARTOLOMEI & ASSOCIATES, NIAGARA FALLS, FOR
PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS ROSE HARVEY, COMMISSIONER, NEW
YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION,
ANDY BEERS, EXECUTIVE DEPUTY COMMISSIONER, NEW YORK STATE OFFICE OF
PARKS, RECREATION AND HISTORIC PRESERVATION AND NEW YORK STATE OFFICE
OF PARKS, RECREATION AND HISTORIC PRESERVATION.

DAMON MOREY LLP, BUFFALO (BRIAN D. GWITT OF COUNSEL), FOR
RESPONDENT-RESPONDENT MAID OF THE MIST CORPORATION.

NEW YORK POWER AUTHORITY, WHITE PLAINS (JAVIER E. BUCOBO OF COUNSEL),
FOR RESPONDENTS-RESPONDENTS GIL C. QUINIONES, PRESIDENT AND CHIEF
EXECUTIVE OFFICER, NEW YORK POWER AUTHORITY AND NEW YORK POWER
AUTHORITY.

Appeal from a judgment of the Supreme Court, Niagara County
(Catherine R. Nugent Panepinto, J.), entered September 3, 2013 in a
proceeding pursuant to CPLR article 78. The judgment dismissed the
petition.

It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding
 -2- 884
CA 14-00252

seeking, among other things, to compel respondent New York State
Office of Parks, Recreation and Historic Preservation (Parks) to
conduct competitive, public bidding with respect to a public
concession license to operate scenic boat tours and to conduct related
services on the Niagara River (hereafter, license). Parks had granted
the license to respondent Maid of the Mist Corporation (MOTM) in 2002
for a 40-year term, and this proceeding was commenced when Parks and
MOTM thereafter sought to amend the provisions of the license. We
agree with petitioner that Supreme Court erred in determining that it
lacks standing to seek the relief requested (see Albert Elia Bldg. Co.
v New York State Urban Dev. Corp., 54 AD2d 337, 341-342). With
respect to the substantive merits, however, we conclude that the court
properly dismissed the petition inasmuch as petitioner failed to
demonstrate “a ‘clear legal right’ to the relief requested” (Matter of
Council of City of N.Y. v Bloomberg, 6 NY3d 380, 388). Contrary to
petitioner’s contention, we conclude that Parks, Recreation and
Historic Preservation Law § 3.09 does not require competitive, public
bidding for the work authorized by the amendment of the license.
Contrary to petitioner’s additional contention, we conclude that the
amendment was in furtherance of MOTM’s 2002 license and the business
conducted thereunder, and the amendment did not “so alter[ ]” the
terms, “the essential identity or [the] main purpose of the [2002
license] that it constitute[d] a new undertaking” rendering the work
authorized by the amendment subject to competitive, public bidding
(Albert Elia Bldg. Co., 54 AD2d at 343).

Entered: October 3, 2014 Frances E. Cafarell
Clerk of the Court