| Matter of Jim Ludtka Sporting Goods, Inc. v City of Buffalo SchoolDist. |
| 2008 NY Slip Op 00848 [48 AD3d 1103] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Jim Ludtka Sporting Goods, Inc., Respondent, vCity of Buffalo School District et al., Appellants. |
—[*1] Chiacchia & Fleming, LLP, Hamburg (Christen A. Pierrot of counsel), forpetitioner-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John A.Michalek, J.), entered February 16, 2007 in a proceeding pursuant to CPLR article 78. Thejudgment, among other things, granted the petition.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul thedetermination pursuant to which respondents awarded an exclusive contract for the supply ofathletic apparel to AdPro Team Sports (AdPro), the successful bidder. Because petitioner hasfailed to name AdPro as a respondent, we reverse and dismiss the petition. "[T]he court may atany stage of a case and on its own motion determine whether there is a nonjoinder of necessaryparties" (Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272,282 [1974]; see City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d469, 475 [1979]; Matter of Dyno v Rose, 260 AD2d 694, 696-697 [1999], appealdismissed 93 NY2d 998 [1999], lv denied 94 NY2d 753 [1999]). We conclude thatAdPro 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 (seeCPLR 1001 [a]; Matter of BostonCulinary Group, Inc. v New York State Olympic Regional Dev. Auth., 18 AD3d 1103,1104 [2005], lv denied 5 NY3d 712 [2005]; Matter of Utica Sheet Metal Corp. vCounty of Tompkins, 40 AD2d 567 [1972]). In considering the factors enumerated in CPLR1001 (b) to determine whether the nonjoinder of AdPro may be excused, we further conclude thatdismissal is warranted because petitioner offered no excuse for failing to name AdPro at theoutset (see Matter of Spence v Cahill, 300 AD2d 992 [2002], lv denied 1 NY3d508 [2004]; Matter of Bianchi v Town of Greece Planning Bd., 300 AD2d 1043, 1044[2002]), petitioner could have avoided any prejudice to AdPro by naming AdPro as a respondentat the outset (see Matter of Llana v Town of Pittstown, 245 AD2d 968, 969 [1997], lvdenied 91 NY2d 812 [1998]), the interests of respondent school district and AdPro are notclearly united (cf. Matter of Long Is.Contractors' Assn. v Town of [*2]Riverhead, 17 AD3d590, 594 [2005]) and, as noted, AdPro's contract rights would be adversely affected shouldthe relief sought by petitioner be granted.
In light of our decision herein, we do not address respondents' remaining contentions.Present—Hurlbutt, J.P., Smith, Fahey, Peradotto and Pine, JJ.