| Bango v Gouverneur Volunteer Rescue Squad, Inc. |
| 2012 NY Slip Op 09132 [101 AD3d 1556] |
| December 27, 2012 |
| Appellate Division, Third Department |
| Terry Bango, Appellant, v Gouverneur Volunteer Rescue Squad,Inc., Respondent, et al., Defendants. |
—[*1] Pillinger Miller Tarallo, LLP, Syracuse (Jeffrey D. Schulman of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Demarest, J.), entered September22, 2011 in St. Lawrence County, which granted a motion by defendant Gouverneur VolunteerRescue Squad, Inc. for summary judgment dismissing the complaint against it.
Defendant Gouverneur Volunteer Rescue Squad, Inc. (hereinafter defendant) is anot-for-profit corporation that provides ambulance services to several towns in St. LawrenceCounty. While plaintiff was defendant's president, defendant's board of directors conducted aninternal disciplinary investigation into two of defendant's members. Shortly thereafter, thosemembers and one of their spouses alleged to defendant that plaintiff had improperly disclosedconfidential aspects of that investigation. Defendant brought disciplinary charges againstplaintiff, held a hearing and, by letter dated July 1, 2009, terminated plaintiff's membership. InJuly 2010, plaintiff commenced this action against defendant alleging that it improperlyterminated his membership in violation of defendant's bylaws.[FN*]Supreme Court granted defendant's motion for [*2]summaryjudgment dismissing the complaint against it. Plaintiff appeals.
Supreme Court properly dismissed the complaint against defendant as time-barred. Afour-month statute of limitations applies if the gravamen of plaintiff's action and the relief soughtmay be properly addressed in a CPLR article 78 proceeding (see Walton v New York State Dept. of Correctional Servs., 8 NY3d186, 194 [2007]; Wechsler v State of New York, 284 AD2d 707, 708 [2001], lvdenied 97 NY2d 607 [2001]; see also CPLR 217). Although plaintiff now attempts tolabel his allegations against defendant as sounding in breach of contract and only seekingmonetary damages, the complaint seeks reinstatement of his membership and restoration to theoffice of president as well as monetary damages. Plaintiff contends that CPLR article 78 is notapplicable because defendant is not a municipality, but that article is not strictly limited togovernment actors; it also applies to any "corporation" (CPLR 7802 [a]). Public and privatecorporations, "having accepted a charter and having thus become a quasi-governmental body, canbe compelled in an article 78 proceeding to fulfill not only obligations imposed upon them byState or municipal statutes but also those imposed by their internal rules" (Matter of Gray vCanisius Coll. of Buffalo, 76 AD2d 30, 33 [1980] [citations omitted]). Plaintiff's action,seeking review of the conduct of a not-for-profit corporation that allegedly terminated hismembership through improper procedures and a failure to follow its own internal rules, soughtrelief that was properly the subject of a CPLR article 78 proceeding (see Dormer v Suffolk County PoliceBenevolent Assn., Inc., 95 AD3d 1166, 1168 [2012]; Belmonte v Saratoga Youth Hockey,Inc., 18 AD3d 1065, 1066 [2005]). As the action was not commenced until a year afterdefendant terminated plaintiff's membership, Supreme Court properly dismissed the complaintagainst defendant as untimely (see Dormer v Suffolk County Police Benevolent Assn.,Inc., 95 AD3d at 1168).
Rose, J.P., Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: The complaint contained aseparate cause of action against individual defendants, but those individuals did not appear on theunderlying motion. They and the cause of action against them are not involved in this appeal.