BUILDING COMPANY v. CITY OF NEW YORK (1997)

Order, Supreme Court, New York County (Walter Tolub, J.), entered August 8, 1996, which granted defendant City's motion to reargue a prior order, inter alia, directing defendant Kislak to execute a confidentiality agreement before conducting its audit of plaintiff, and, upon reargument, vacated such directive, unanimously affirmed, without costs.

 Plaintiff's request for a hearing to determine the identity of the auditing entity, denied by a prior order of the same court, entered February 15, 1996, that was never appealed or the subject of renewal or reargument by plaintiff, is not properly raised on this appeal.   In any event, no purpose would be served by such a hearing inasmuch as defendant City, which has the authority to designate an agent to conduct the audit (217 A.D.2d 417, 629 N.Y.S.2d 240, lv. denied 86 N.Y.2d 708, 634 N.Y.S.2d 442, 658 N.E.2d 220), expressly consented to nonparty Betesh's arrangement with defendant Kislak, the designated auditor, to perform Kislak's obligations to the City, and the relationship between Kislak and Betesh is now known to plaintiff.   Concerning the motion court's withdrawal of its directive to Kislak to execute a confidentiality agreement, since this Court had already affirmed dismissal of the complaint against Kislak (id.), and there was no statutory basis for a modification of that order (cf., CPLR 5015), especially to grant relief not sought in the complaint and not previously litigated in the action (see, Ward-Carpenter Engrs. v. Sassower, 193 A.D.2d 730, 598 N.Y.S.2d 534), the court no longer had jurisdiction over Kislak to compel it to execute a confidentiality agreement.   Even if there were jurisdiction, since the contract between plaintiff and defendant City did not condition the audit on the execution of a confidentiality agreement by the auditor, no basis would exist to impose such a condition (see, Kahn v. New York Times Co., 122 A.D.2d 655, 663, 503 N.Y.S.2d 561).   We have considered plaintiff's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.