Opinion
September 25, 1970
Appeal from the Onondaga Special Term.
Present — Goldman, P.J., Witmer, Gabrielli, Moule and Henry, JJ.
Order unanimously reversed, without costs, motion of respondents Finch and others denied, and oral motion of appellant Sardino granted in accordance with the following memorandum: This is an appeal from an order of Supreme Court granting the relief requested in a show cause order obtained by three police officers to stay a departmental hearing to be held on charges filed against them, to make certain records available to them, and to establish procedures to be followed at the hearing. Oral argument was had upon the return of the show cause order, at which time the Chief of Police moved for denial of the motion upon the ground, among others, that the court had no jurisdiction of the matter. Special Term denied his motion and granted the relief sought. The oral motion should have been granted since it is conceded that respondents made no effort to exhaust their administrative remedies prior to the institution of this action. The doctrine of exhaustion of administrative remedies requires "litigants to address their complaints initially to administrative tribunals, rather than to the courts, and * * * to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts." (2 Cooper, State Administrative Law, p. 561.) The petitioners in seeking this extraordinary relief fail to show that they will suffer irreparable injury unless the court entertains this action, or that they have no adequate remedy. The right of judicial review of the final action taken in the disciplinary proceeding (Civil Service Law, § 76, subd. 1) is a sufficient procedural safeguard of petitioners' rights. (See McGillicuddy v. Monaghan, 280 App. Div. 144, 145.) The judicial proceeding should not have been entertained. It was inconsistent with the policy of requiring exhaustion of administrative remedies before resort to judicial review. As stated in Matter of Richards v. Mangum ( 35 A.D.2d 124, 126): "The dual functions of this requirement are to conserve judicial resources and to protect the integrity of administrative hearings, determinations and appeals (2 Cooper, State Administrative Law, pp. 562-565; Jaffee, Judicial Control of Administrative Action, p. 424)". It is unnecessary to reach any other question, but in passing we comment on the failure to file a verified petition only to the extent of noting that such failure constituted a technical irregularity. (CPLR 7804, subd. [e]; 403, subd. [d]; Matter of State of New York v. Fuller, 31 A.D.2d 71.) Also, appellant incurred no prejudice and has waived the irregularity by his tardy objection. ( Matter of Smith v. Board of Stds. Appeals of City of New York, 2 A.D.2d 67; 3 Weinstein-Korn-Miller, N Y Civ. Prac., par. 3022.03.)