IN RE: GERSTER SALES & SERVICE

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

IN RE: GERSTER SALES & SERVICE, INC., Ronald A. Gerster and Trane U.S. Inc., Petitioners-Appellants, v. POWER AUTHORITY OF STATE OF NEW YORK, State University of New York, Wendel Energy Services, LLC, McQuay International, Daikin Industries, Ltd. and MLP Plumbing & Mechanical, Inc., Respondents-Respondents.

Decided: November 13, 2009

PRESENT:  SCUDDER, P.J., MARTOCHE, SMITH, CARNI, AND GREEN, JJ. Magavern Magavern & Grimm LLP, Buffalo (James L. Magavern of Counsel), for Petitioners-Appellants. Terryl Brown Clemons, White Plains (Eileen P. Flynn of Counsel), for Respondent-Respondent Power Authority of State of New York. Andrew M. Cuomo, Attorney General, Albany (Paul Groenwegen of Counsel), for Respondent-Respondent State University of New York. Phillip M. Fries, Amherst, for Respondent-Respondent Wendel Energy Services, LLC. Bond, Schoeneck & King, PLLC, Syracuse (Thomas D. Keleher of Counsel), for Respondents-Respondents McQuay International and Daikin Industries, Ltd. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Daniel E. Sarzynski of Counsel), for Respondent-Respondent MLP Plumbing & Mechanical, Inc.

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 A.D.2d 811, 634 N.Y.S.2d 784;  Matter of Caprari v. Town of Colesville, 199 A.D.2d 705, 605 N.Y.S.2d 157;  cf. Matter of Michalak v. Zoning Bd. of Appeals of Town of Pomfret, 286 A.D.2d 906, 731 N.Y.S.2d 129).  “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 A.D.2d at 813, 634 N.Y.S.2d 784;  see Lukas v. Ascher, 299 A.D.2d 262, 750 N.Y.S.2d 592).   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 A.D.2d 849, 850, 548 N.Y.S.2d 111).

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

MEMORANDUM: