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Gerster Sales & Service, Inc. v. Power Authority of State of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


November 13, 2009

IN THE MATTER OF GERSTER SALES & SERVICE, INC., ET AL., APPELLANTS,
v.
POWER AUTHORITY OF STATE OF NEW YORK ET AL., RESPONDENTS.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John M. Curran, J.), entered March 4, 2009 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 6, 2010

It is hereby ordered that said appeal is unanimously dismissed without costs.

Memorandum

Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, to annul respondent university's determination awarding a contract to respondent Wendel Energy Services, LLC for the installation of new air cooling equipment in certain state university buildings. According to petitioners, their cooling equipment had been improperly excluded during the bidding process. We conclude that petitioners' appeal from the judgment dismissing the petition as time-barred must be dismissed as moot. The evidence in the record before us establishes that the contract in question had been awarded prior to the commencement of the proceeding and it is undisputed that the project is now completed (see Matter of Fallati v Town of Colonie, 222 AD2d 811 [1995]; Matter of Caprari v Town of Colesville, 199 AD2d 705 [1993]; cf. Matter of Michalak v Zoning Bd. of Appeals of Town of Pomfret, 286 AD2d 906 [2001]). "Since petitioner[s] did not seek injunctive relief during the pendency of this appeal, we find the controversy herein to be rendered moot" (Fallati, 222 AD2d at 813; see Lukas v Ascher, 299 AD2d 262 [2002]). We reject petitioners' contention that the appeal is not moot because, inter alia, the petition also sought money damages. Inasmuch as the primary relief sought, i.e., annulling the determination awarding the contract and rebidding the contract, "is no longer possible, money relief cannot be incidentally granted" (Matter of United Pioneer Corp. v Office of Gen. Servs. of State of N.Y., 155 AD2d 849, 850 [1989]).

Present: Scudder, P.J., Martoche, Smith, Carni and Green, JJ.

20091113

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