Opinion
2012-05-23
In the Matter of Muhammad Shahid NAZIR, appellant, v. CHARGE & RIDE, INC., respondent.
Muhammad Shahid Nazir, Bayonne, New Jersey, appellant pro se. Rimland & Associates, New York, N.Y. (Matthew A. Kaufman of counsel), for respondent.
Muhammad Shahid Nazir, Bayonne, New Jersey, appellant pro se. Rimland & Associates, New York, N.Y. (Matthew A. Kaufman of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In a proceeding pursuant to CPLR article 78 to review a determination of Charge & Ride, Inc., dated April 15, 2010, which, after a hearing, expelled the petitioner from membership in and terminated the petitioner's affiliation with Charge & Ride, Inc., the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Rosengarten, J.), entered December 29, 2010, which granted the motion of Charge & Ride, Inc., pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, and dismissed the proceeding.
ORDERED that the order and judgment is affirmed, with costs.
“Generally, ‘one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law’ ” (Matter of Laureiro v. New York City Dept. of Consumer Affairs, 41 A.D.3d 717, 719, 837 N.Y.S.2d 746, quoting Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560;see Matter of Murray v. Downey, 48 A.D.3d 817, 818, 852 N.Y.S.2d 387; Matter of Dorme v. Slingerland, 41 A.D.3d 596, 838 N.Y.S.2d 159). “[E]xhaustion of administrative remedies is not required where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, when resort to an administrative remedy would be futile, or when its pursuit would cause irreparable injury” (Matter of Laureiro v. New York City Dept. of Consumer Affairs, 41 A.D.3d at 719, 837 N.Y.S.2d 746;see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d at 57, 412 N.Y.S.2d 821, 385 N.E.2d 560;Matter of Beyah v. Scully, 143 A.D.2d 903, 533 N.Y.S.2d 515). Since a quasi administrative membership determination made by a private corporation is subject to review pursuant to CPLR article 78 ( see Matter of Guldal v. Inta-Boro Two–Way Assn., Inc., 74 A.D.3d 1198, 904 N.Y.S.2d 476;Goldin v. Engineers Country Club, 54 A.D.3d 658, 659, 864 N.Y.S.2d 43;Matter of Murphy v. St. Agnes Hosp., 107 A.D.2d 685, 687, 484 N.Y.S.2d 40), the requirement that a petitioner exhaust his or her administrative remedies prior to seeking judicial review applies to such a determination as well ( see generally Matter of Gerard v. Section III of N.Y. State Publ. High School Athletic Assn., 210 A.D.2d 938, 939, 620 N.Y.S.2d 670;Matter of Reale v. Patrolmen's Benevolent Assn. of N.Y. City Transit Police Dept., 90 A.D.2d 755, 755, 456 N.Y.S.2d 56,revd. on other grounds59 N.Y.2d 901, 466 N.Y.S.2d 317, 453 N.E.2d 546).
As the petitioner never sought review of his case by the respondent's membership division, and there is no basis to conclude on this record that such an attempt would have been futile ( see Matter of Hanchard v. Facilities Dev. Corp., 85 N.Y.2d 638, 645, 628 N.Y.S.2d 4, 651 N.E.2d 872;Matter of Ward v. Bennett, 174 A.D.2d 681, 571 N.Y.S.2d 539,mod.79 N.Y.2d 394, 583 N.Y.S.2d 179, 592 N.E.2d 787;Petosa v. New York, 135 A.D.2d 800, 803, 522 N.Y.S.2d 904), the Supreme Court properly granted the respondent's motion to dismiss the petition for failure to exhaust administrative remedies and dismissed the proceeding, and we do not reach the merits of the petition.