United Pioneer Corp. v. Office of General Services

Appellate Division of the Supreme Court of New York

United Pioneer Corp. v. Office of General Services

155 A.D.2d 849, 548 N.Y.S.2d 111, 1989 N.Y. App. Div. LEXIS 14366

Appellate Division of the Supreme Court of the State of New York·Decided November 22, 1989·Published·Cited by 5 cases

Opinion

— Mahoney, P. J.

Appeal from a judgment of the Supreme Court (Conway, J.), entered January 31, 1989 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to, inter alla, annul a contract between respondent Office of General Services and respondent Entrol Corporation and compel the award of said contract to petitioner.

Petitioner was the low, but unsuccessful, bidder for a two-year contract, beginning September 1, 1987, to supply men’s clicker coats to the State Department of Correctional Services. It commenced this proceeding to have the contract as awarded declared void and to then be awarded the contract. Supreme Court dismissed the petition, holding that the contract had [850] been awarded in compliance with existing law and procedure. From the judgment entered thereon, petitioner appeals.

It appears to us that the appeal should be dismissed as moot. The term of the subject contract ended on August 31, 1989 and petitioner cannot be awarded a contract that has expired with full performance (see, e.g., Matter of General Bldg. Contrs. v Egan, 106 AD2d 688, 690, lv denied 65 NY2d 601). We reject petitioner’s claim that the appeal is not moot because money damages may be available as incidental relief under CPLR 7806. Since the primary relief sought, an award of the contract to petitioner, is no longer possible, monetary relief cannot be incidentally granted (see, Matter of Schwab v Bowen, 41 NY2d 907). Accordingly, we dismiss the appeal as moot.

Appeal dismissed, as moot, without costs. Mahoney, P. J., Kane, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.

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— Mahoney, P. J.

Appeal from a judgment of the Supreme Court (Conway, J.), entered January 31, 1989 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to, inter alla, annul a contract between respondent Office of General Services and respondent Entrol Corporation and compel the award of said contract to petitioner.

Petitioner was the low, but unsuccessful, bidder for a two-year contract, beginning September 1, 1987, to supply men’s clicker coats to the State Department of Correctional Services. It commenced this proceeding to have the contract as awarded declared void and to then be awarded the contract. Supreme Court dismissed the petition, holding that the contract had [850] been awarded in compliance with existing law and procedure. From the judgment entered thereon, petitioner appeals.

It appears to us that the appeal should be dismissed as moot. The term of the subject contract ended on August 31, 1989 and petitioner cannot be awarded a contract that has expired with full performance (see, e.g., Matter of General Bldg. Contrs. v Egan, 106 AD2d 688, 690, lv denied 65 NY2d 601). We reject petitioner’s claim that the appeal is not moot because money damages may be available as incidental relief under CPLR 7806. Since the primary relief sought, an award of the contract to petitioner, is no longer possible, monetary relief cannot be incidentally granted (see, Matter of Schwab v Bowen, 41 NY2d 907). Accordingly, we dismiss the appeal as moot.

Appeal dismissed, as moot, without costs. Mahoney, P. J., Kane, Mikoll, Yesawich, Jr., and Mercure, JJ., concur.

United Pioneer Corp. v. Office of General Services, 155 A.D.2d 849, 548 N.Y.S.2d 111, 1989 N.Y. App. Div. LEXIS 14366 (N.Y. Ct. App. 1989).

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