Opinion
2012-12-27
Terry BANGO, Appellant, v. GOUVERNEUR VOLUNTEER RESCUE SQUAD, INC., Respondent, et al., Defendants.
Hrabchak, Gebo & Langone, PC, Watertown (Mark G. Gebo of counsel), for appellant. Pillinger Miller Tarallo, LLP, Syracuse (Jeffrey D. Schulman of counsel), for respondent.
Hrabchak, Gebo & Langone, PC, Watertown (Mark G. Gebo of counsel), for appellant. Pillinger Miller Tarallo, LLP, Syracuse (Jeffrey D. Schulman of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.
McCARTHY, J.
Appeal from an order of the Supreme Court (Demarest, J.), entered September 22, 2011 in St. Lawrence County, which granted a motion by defendant Gouverneur Volunteer Rescue Squad, Inc. for summary judgment dismissing the complaint against it.
Defendant Gouverneur Volunteer Rescue Squad, Inc. (hereinafter defendant) is a not-for-profit corporation that provides ambulance services to several towns in St. Lawrence County. While plaintiff was defendant's president, defendant's board of directors conducted an internal disciplinary investigation into two of defendant's members. Shortly thereafter, those members and one of their spouses alleged to defendant that plaintiff had improperly disclosed confidential aspects of that investigation. Defendant brought disciplinary charges against plaintiff, held a hearing and, by letter dated July 1, 2009, terminated plaintiff's membership. In July 2010, plaintiff commenced this action against defendant alleging that it improperly terminated his membership in violation of defendant's bylaws.
Supreme Court granted defendant's motion for summary judgment dismissing the complaint against it. Plaintiff appeals.
The complaint contained a separate cause of action against individual defendants, but those individuals did not appear on the underlying motion. They and the cause of action against them are not involved in this appeal.
Supreme Court properly dismissed the complaint against defendant as time-barred. A four-month statute of limitations applies if the gravamen of plaintiff's action and the relief sought may be properly addressed in a CPLR article 78 proceeding ( see Walton v. New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 194, 831 N.Y.S.2d 749, 863 N.E.2d 1001 [2007];Wechsler v. State of New York, 284 A.D.2d 707, 708, 726 N.Y.S.2d 760 [2001],lv. denied97 N.Y.2d 607, 738 N.Y.S.2d 290, 764 N.E.2d 394 [2001];see alsoCPLR 217). Although plaintiff now attempts to label his allegations against defendant as sounding in breach of contract and only seeking monetary damages, the complaint seeks reinstatement of his membership and restoration to the office of president as well as monetary damages. Plaintiff contends that CPLR article 78 is not applicable because defendant is not a municipality, but that article is not strictly limited to government actors; it also applies to any “corporation” (CPLR 7802[a] ). Public and private corporations, “having accepted a charter and having thus become a quasi-governmental body, can be compelled in an article 78 proceeding to fulfill not only obligations imposed upon them by State or municipal statutes but also those imposed by their internal rules” ( Matter of Gray v. Canisius Coll. of Buffalo, 76 A.D.2d 30, 33, 430 N.Y.S.2d 163 [1980] [internal citations omitted] ). Plaintiff's action, seeking review of the conduct of a not-for-profit corporation that allegedly terminated his membership through improper procedures and a failure to follow its own internal rules, sought relief that was properly the subject of a CPLR article 78 proceeding ( see Dormer v. Suffolk County Police Benevolent Assn., Inc., 95 A.D.3d 1166, 1168, 945 N.Y.S.2d 144 [2012];Belmonte v. Saratoga Youth Hockey, Inc., 18 A.D.3d 1065, 1066, 795 N.Y.S.2d 378 [2005] ). As the action was not commenced until a year after defendant terminated plaintiff's membership, Supreme Court properly dismissed the complaint against defendant as untimely ( see Dormer v. Suffolk County Police Benevolent Assn., Inc., 95 A.D.3d at 1168, 945 N.Y.S.2d 144).
ORDERED that the order is affirmed, with costs.
ROSE, J.P., LAHTINEN, SPAIN and KAVANAGH, JJ., concur.