Opinion
No. 3181 Index No. 653900/22 Case No. 2023-05121
12-05-2024
In the Matter of Olga Wildfeuer, M.D., Petitioner-Appellant, v. The American Board of Pediatrics, Inc., Respondent-Respondent.
O'Connell & Aronowitz, P.C., Albany (Brian M. Culnan of counsel), for appellant. Seyfarth Shaw LLP, New York (Robert T. Szyba of counsel), for respondent.
O'Connell & Aronowitz, P.C., Albany (Brian M. Culnan of counsel), for appellant.
Seyfarth Shaw LLP, New York (Robert T. Szyba of counsel), for respondent.
Before: Webber, J.P., Moulton, Mendez, Pitt-Burke, O'Neill Levy, JJ.
Judgment (denominated an order), Supreme Court, New York County (Suzanne J. Adams, J.), entered on or about August 22, 2023, which granted respondent's cross-motion to dismiss the petition/complaint seeking to annul a June 21, 2022 decision of respondent upholding its decision to temporarily revoke petitioner's general pediatrics certification, and dismiss this hybrid article 78 proceeding, unanimously affirmed, without costs.
Whether a private association's determination of an individual's eligibility for membership is subject to judicial review is contingent upon a showing of economic necessity for membership and monopoly power over the profession (see Matter of Wachsman v Medical Socy. of State of N.Y., 128 A.D.2d 789, 789 [2d Dept 1987]). Supreme Court correctly concluded that petitioner failed to adequately allege either element. Accordingly, the petition does not sufficiently allege that respondent's determination temporarily revoking petitioner's certification constitutes state action (see Matter of Salter v New York State Psychological Assoc., 14 N.Y.2d 100, 104-107 [1964]).
Furthermore, although arbitrary action of a private association may still be subject to judicial scrutiny (see Jacobson v New York Racing Assn., 33 N.Y.2d 144, 150 [1973]; Caposella v Pinto, 265 A.D.2d 362, 363 [2d Dept 1999]; Thornton v American Kennel Club, 182 A.D.2d 358, 358 [1st Dept 1992]), Supreme Court correctly concluded that the documentary evidence submitted in support of the motion to dismiss, considered with the petition itself and the exhibits submitted with it, establish that respondent's determination was not arbitrary or inconsistent with its own rules.
Because petitioner failed to adequately allege that respondent's determination constituted state action, Supreme Court properly dismissed the cause of action alleging that respondent had violated her right to due process (see Sumner v Hogan, 73 A.D.3d 618, 620 [1st Dept 2010]; Thornton, 182 A.D.2d at 358-359). In any event, as the court found, petitioner was given adequate notice and an opportunity to be heard (see Tyk v New York State Educ. Dept., 19 A.D.3d 427, 428-429 [2d Dept 2005], appeal dismissed 5 N.Y.3d 823 [2005]).