IN RE: Application of LEEWEN CONTRACTING CORPORATION

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of LEEWEN CONTRACTING CORPORATION, Petitioner–Appellant, For a Judgment, etc., v. The DEPARTMENT OF SANITATION OF the CITY OF NEW YORK, Respondent–Respondent.

Decided: May 25, 2000

WILLIAMS, J.P., TOM, RUBIN and ANDRIAS, JJ. Michael F. Kuzow, for Petitioner–Appellant. Elizabeth S. Natrella, for Respondent–Respondent.

Judgment, Supreme Court, New York County (Michael Stallman, J.), entered April 15, 1999, denying the petition and dismissing the proceeding seeking to vacate a decision of the Contract Dispute Resolution Board of the City of New York (CDRB), dated July 22, 1998, unanimously affirmed, without costs.

 The only issue raised by this appeal is whether respondent failed to comply with CPLR 7804(e), which states in pertinent part:  “The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration․”.  However, that issue was improperly raised for the first time by petitioner in its reply papers to the IAS court and we, therefore, decline to address it (see, Zelnik v. Bidermann Industries USA, Inc., 242 A.D.2d 227, 232, 662 N.Y.S.2d 19).

 In any event, Article 33A of the contract, governing contractual disputes of this type, provides that petitioner's presentation to that body is limited to the materials submitted to the Department of Sanitation and the Comptroller.   Although the CDRB “shall permit [petitioner] to present its case by submission of memoranda, briefs, and oral argument”, the CDRB's review is limited to the written record before respondent and the Comptroller and petitioner “may not, however, support its case with any documentation or other material not presented to the Agency Head or the Comptroller” (Article 33A, § 7B).   Thus, any oral argument had thereon before the CDRB is not the type of administrative proceeding contemplated by CPLR 7804(e).

MEMORANDUM DECISION.