IN RE: JIM LUDTKA SPORTING GOODS (2008)

 Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination pursuant to which respondents awarded an exclusive contract for the supply of athletic apparel to AdPro Team Sports (AdPro), the successful bidder.   Because petitioner has failed to name AdPro as a respondent, we reverse and dismiss the petition.  “[T]he court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” (Matter of Lezette v. Board of Educ. of Hudson City School Dist., 35 N.Y.2d 272, 282, 360 N.Y.S.2d 869, 319 N.E.2d 189;  see City of New York v. Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 475, 423 N.Y.S.2d 651, 399 N.E.2d 538;  Matter of Dyno v. Rose, 260 A.D.2d 694, 696-697, 687 N.Y.S.2d 497, appeal dismissed 93 N.Y.2d 998, 695 N.Y.S.2d 743, 717 N.E.2d 1080, lv. denied 94 N.Y.2d 753, 700 N.Y.S.2d 426, 722 N.E.2d 506).   We conclude that AdPro is a necessary party, inasmuch as there is no question that the relief sought, i.e., nullification of its contract with respondents, would inequitably affect its rights (see CPLR 1001[a];  Matter of Boston Culinary Group, Inc. v. New York State Olympic Regional Dev. Auth., 18 A.D.3d 1103, 1104, 796 N.Y.S.2d 188, lv. denied 5 N.Y.3d 712, 806 N.Y.S.2d 163, 840 N.E.2d 132;  Matter of Utica Sheet Metal Corp. v. County of Tompkins, 40 A.D.2d 567, 333 N.Y.S.2d 812).   In considering the factors enumerated in CPLR 1001(b) to determine whether the nonjoinder of AdPro may be excused, we further conclude that dismissal is warranted because petitioner offered no excuse for failing to name AdPro at the outset (see Matter of Spence v. Cahill, 300 A.D.2d 992, 752 N.Y.S.2d 511, lv. denied 1 N.Y.3d 508, 777 N.Y.S.2d 17, 808 N.E.2d 1276;  Matter of Bianchi v. Town of Greece Planning Bd., 300 A.D.2d 1043, 1044, 751 N.Y.S.2d 908), petitioner could have avoided any prejudice to AdPro by naming AdPro as a respondent at the outset (see Matter of Llana v. Town of Pittstown, 245 A.D.2d 968, 969, 667 N.Y.S.2d 112, lv. denied 91 N.Y.2d 812, 672 N.Y.S.2d 848, 695 N.E.2d 717), the interests of respondent school district and AdPro are not clearly united (cf. Matter of Long Is. Contractors' Assn. v. Town of Riverhead, 17 A.D.3d 590, 594, 793 N.Y.S.2d 494) and, as noted, AdPro's contract rights would be adversely affected should the relief sought by petitioner be granted.

In light of our decision herein, we do not address respondents' remaining contentions.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

MEMORANDUM: