| Goldin v Engineers Country Club |
| 2008 NY Slip Op 06695 [54 AD3d 658] |
| September 2, 2008 |
| Appellate Division, Second Department |
| Wendy Goldin et al., Appellants, v Engineers Country Clubet al., Respondents. |
—[*1] Kaufman Dolowich & Voluck, LLP, Woodbury (Andrew l. Richards of counsel), forrespondent Engineers Country Club. Gordon & Rees LLP, New York (Mercedes Colwin of counsel), for respondents JonathanGold, Sheldon Ratner, Leslie Giffords, Milton Grunwald, Les Genatt, Stuart Lubow, and MarcMatza.
In an action, inter alia, to recover damages for discrimination by a place of publicaccommodation on the basis of sex in violation of Executive Law § 296, the plaintiffsappeal from an order of the Supreme Court, Nassau County (Feinman, J.), dated March 22, 2007,which granted the motion of the defendant Engineers Country Club, and the separate motion ofthe defendants Jonathan Gold, Sheldon Ratner, Leslie Giffords, Milton Grunwald, Les Genatt,Stuart Lubow, and Marc Matza to dismiss the complaint insofar as asserted against each of thempursuant to CPLR 3211 (a).
Ordered that the order is affirmed, with one bill of costs to the defendants appearingseparately and filing separate briefs.
The plaintiffs, husband and wife Wendy Goldin and Kenneth Deutsch, were members of thedefendant Engineers Country Club (hereinafter the Club). Due to an extramarital affair, there wasongoing friction between the plaintiffs and another couple who were also Club members.Although both couples initially were suspended from the Club, the other couple's membershipeventually was reinstated while the plaintiffs remained suspended. The plaintiffs commenced thisaction against the Club and Jonathan Gold, Sheldon Ratner, Leslie Giffords, Milton Grunwald,Les Genatt, Stuart Lubow and Marc Matza (collectively the individual defendants), who weremembers of the Club's board of directors. The Club and the individual defendants moved todismiss the complaint insofar [*2]as asserted against each of thempursuant to CPLR 3211 (a) (5) and (7). The Supreme Court granted those branches of themotions which were to dismiss the complaint on the ground that the action was barred by therelevant statute of limitations. We affirm, albeit on different grounds.
Contrary to the conclusion reached by the Supreme Court, the complaint was not barred bythe statute of limitations. A proceeding pursuant to CPLR article 78, which is subject to afour-month statute of limitations, is the proper vehicle for challenging a decision to suspend orexpel a member of a not-for-profit corporation such as a country club, based on a violation of theclub's bylaws or established rules (seee.g. Matter of Kelly v Northport Yacht Club, Inc., 44 AD3d 858 [2007]; Matter of Marandino v WestchesterCountry Club, Inc., 33 AD3d 800, 800-801 [2006]; Schiffer v Tarrytown BoatClub, 219 AD2d 704 [1995]; Matter of Purpura v Richmond County Country Club,114 AD2d 460, 461 [1985]). However, in the instant case, the plaintiffs no longer claim such aviolation. Rather, the complaint alleged discrimination based on sex under the Human RightsLaw (Executive Law § 296), which allows parties to commence an action againstdiscriminatory places of public accommodation, and the applicable statute of limitations is threeyears (see Koerner v State of N.Y., Pilgrim Psychiatric Ctr., 62 NY2d 442, 446 [1984];Bistrisky v New York State Dept. ofCorrectional Servs., 23 AD3d 866, 867 [2005]; see also CPLR 214). As such,the plaintiffs' action was timely commenced.
Nevertheless, the complaint should have been dismissed because it failed to state a cause ofaction (see CPLR 3211 [a] [7]). On a motion to dismiss pursuant to CPLR 3211 (a) (7),the court must "accept the facts as alleged in the complaint [to be] true, accord [the] plaintiff[ ]the benefit of every possible favorable inference, and determine only whether the facts as allegedfit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Schenkman v New York Coll. of HealthProfessionals, 29 AD3d 671, 672 [2006]). Applying these principles here, the plaintiffs'conclusory assertion that the defendants discriminated against the plaintiff Goldin based on sex isunsupported by any factual allegations and insufficient to state a cause of action to recoverdamages for discrimination based on sex. The plaintiffs failed to plead any facts demonstratinghow they were denied the privileges of membership on the basis of sex, particularly in light ofthe fact that the plaintiffs, a male and female, were both suspended while the other coupleinvolved in the dispute, also a male and a female, were reinstated (see Executive Law§ 296 [2] [a]). Further, the plaintiffs' cause of action alleging that the individual defendantsaided and abetted the unlawful discrimination was properly dismissed, because an individualcannot be held to have aided and abetted his or her own actions (see Executive Law§ 296 [6]; Strauss v New YorkState Dept. of Educ., 26 AD3d 67 [2005]). Fisher, J.P., Dillon, Angiolillo and Balkin,JJ., concur.