Opinion
April 26, 1991
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order insofar as appealed from unanimously reversed on the law with costs, cross motion granted and complaint dismissed. Memorandum: Plaintiff, a physician, instituted this action alleging that defendant hospital wrongfully denied him staff privileges. He seeks damages and an injunction. Defendant appeals from that portion of an order that denied its cross motion to dismiss plaintiff's complaint for failure to state a cause of action.
An injunction action under Public Health Law § 2801-c is the exclusive remedy for an alleged violation of section 2801-b (1). As at common law, no cognizable claim for damages arises out of a hospital's wrongful denial of staff privileges to a physician (see, Guibor v. Manhattan Eye, Ear Throat Hosp., 46 N.Y.2d 736, 737; see also, Matter of Cohoes Mem. Hosp. v. Department of Health, 48 N.Y.2d 583, 587). Thus, plaintiff's damages claim must be dismissed for failure to state a cause of action (see, Dolgin v. Mercy Hosp., 127 A.D.2d 557; Kolker v. St. Francis Hosp., 145 Misc.2d 966, 968).
Additionally, plaintiff's injunction claim must be dismissed because of his failure to allege that he exhausted his administrative remedies. Before proceeding under Public Health Law § 2801-c, a physician is required to present his claim to the Public Health Council (see, Guibor v. Manhattan Eye, Ear Throat Hosp., supra, at 738, affg 56 A.D.2d 359, 363-364; see also, Matter of Cohoes Mem. Hosp. v. Department of Health, supra, at 588). Because plaintiff has failed to do so, his injunction claim is premature, and defendant's cross motion to dismiss must be granted (see, Guibor v. Manhattan Eye, Ear Throat Hosp., supra).