IN RE: FRANCO BELLI PLUMBING AND HEATING AND SONS

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IN RE: FRANCO BELLI PLUMBING AND HEATING AND SONS, INC., appellant, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, respondent.

Decided: September 14, 2016

L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ. Klein Slowik PLLC, New York, N.Y. (Christopher M. Slowik of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Emma Grunberg of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City School Construction Authority dated March 12, 2012, which, inter alia, after a hearing, disqualified the petitioner from bidding, contracting, and subcontracting on any future project of the New York City School Construction Authority for a period of five years, the petitioner appeals from an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated June 12, 2014, which denied its motion pursuant to CPLR 2221(e) for leave to renew its petition, which was denied in a judgment of the same court dated December 21, 2012, or, in the alternative, pursuant to CPLR 5015(a)(2) to vacate the judgment.

ORDERED that the order is affirmed, with costs.

We agree with the Supreme Court's determination denying that branch of the petitioner's motion which was for leave to renew its petition pursuant to CPLR 2221(e), albeit on grounds different from those the court relied upon. In a judgment dated December 21, 2012, the court denied the petitioner's petition seeking to annul a particular determination of the New York City School Construction Authority and dismissed the CPLR article 78 proceeding (see Matter of Franco Belli Plumbing and Heating and Sons, Inc. v. New York City School Construction Authority, ––– AD3d –––– [Appellate Division Docket No. 2013–02286; decided herewith] ). Since “a judgment dismissing a CPLR article 78 petition is a final judgment terminating the proceeding,” CPLR 2221 is not the proper procedural mechanism to address the judgment (Matter of McCabe v. Town of Clarkstown Bd. of Appeals, 31 A.D.3d 451, 452, 817 N.Y.S.2d 507; see Matter of Synergy, LLC v. Kibler, 124 A.D.3d 1261, 1262, 1 N.Y.S.3d 630; Maddux v. Schur, 53 A.D.3d 738, 739, 861 N.Y.S.2d 814; Matter of Curry v. Vertex Restoration Corp., 252 A.D.2d 360, 675 N.Y.S.2d 537; Matter of Reed v. County of Westchester, 243 A.D.2d 714, 714–715, 664 N.Y.S.2d 567).

In addition, the Supreme Court properly denied that branch of the petitioner's motion which was to vacate the judgment pursuant to CPLR 5015(a)(2). In support of its motion, the petitioner submitted certain interrogatory responses dated May 14, 2013, and the transcript of a deposition conducted on July 16, 2013. Those submissions did not constitute newly discovered evidence within the meaning of CPLR 5015(a)(2) since they were not in existence at the time the judgment was issued (see Matter of Monasterska v. Burns, 121 A.D.3d 902, 902, 994 N.Y.S.2d 196; Davi v. Occhino, 116 A.D.3d 651, 653, 983 N.Y.S.2d 573; Chase Home Fin., LLC v. Quinn, 101 A.D.3d 793, 793, 954 N.Y.S.2d 897; Coastal Sheet Metal Corp. v. RJR Mech., Inc., 85 A.D.3d 420, 421, 923 N.Y.S.2d 841).

Moreover, in order for relief to be granted under CPLR 5015(a)(2), the movant must present “newly discovered evidence which, if introduced at trial, would have produced a different result” (Galasso, Langione & Botter, LLP v. Galasso, 127 A.D.3d 687, 688, 4 N.Y.S.3d 549; see Stipo v. Carpenito, 92 A.D.3d 864, 865, 939 N.Y.S.2d 508; Tornheim v. Blue & White Food Prods. Corp., 88 A.D.3d 869, 869, 931 N.Y.S.2d 244). Contrary to the petitioner's contention, certain photographs that were introduced into evidence at the administrative hearing and which were part of the record in the underlying CPLR article 78 proceeding upon which the judgment was based cannot serve as a basis for vacatur under CPLR 5015(a)(2). Accordingly, the Supreme Court properly determined that no basis existed for granting relief under CPLR 5015(a)(2).

The petitioner's remaining contentions either are without merit or need not be reached in light of our determination.