| Dormer v Suffolk County Police Benevolent Assn., Inc. |
| 2012 NY Slip Op 03979 [95 AD3d 1166] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Richard Dormer et al., Appellants, v Suffolk County PoliceBenevolent Association, Inc., et al., Respondents, et al., Defendants. |
—[*1] Davis & Ferber, LLP, Islandia, N.Y. (Lloyd M. Berko of counsel), for respondents.
In an action, inter alia, for a judgment declaring that the plaintiffs' expulsion from thedefendant Suffolk County Police Benevolent Association, Inc., was "illegal and improper," theplaintiffs appeal (1) from an order of the Supreme Court, Suffolk County (Cohen, J.), datedOctober 5, 2010, which granted the motion of the defendants Suffolk County Police BenevolentAssociation, Inc., and John E. Frayler for summary judgment dismissing the complaint insofar asasserted against them as time-barred, and (2), as limited by their brief, from so much of ajudgment of the same court entered August 1, 2011, as, upon the order, dismissed the complaintinsofar as asserted against the defendants Suffolk County Police Benevolent Association, Inc.,and John E. Frayler as time-barred.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants Suffolk County Police BenevolentAssociation, Inc., and John E. Frayler.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeal from the intermediate order are brought up forreview and have been considered on the appeal from the judgment (see CPLR 5501 [a][1]).
By letters dated October 14, 2008, the plaintiff Richard Dormer, who was then the PoliceCommissioner of Suffolk County, and the plaintiff Roger Shannon, who was then the DeputyPolice Commissioner of Suffolk County, were notified that they were expelled from thedefendant Suffolk County Police Benevolent Association, Inc. (hereinafter the PBA). By lettersdated November 21, 2008, the plaintiffs were notified that they were expelled from the defendantSuperior Officers Association of the Police Department of the County of Suffolk (hereinafter theSOA).
On April 28, 2009, the plaintiffs commenced this action against, among others, the [*2]PBA and its president, the defendant John E. Frayler (hereinaftertogether the PBA defendants) and the SOA and its president and vice president (hereinaftertogether the SOA defendants). The plaintiffs alleged that they were expelled from the PBA andthe SOA in retaliation for following official directives which required them to transferresponsibility for patrolling certain roadways on Long Island from the Suffolk County PoliceDepartment to the Office of the Sheriff. The plaintiffs sought a judgment declaring that theirexpulsions were "illegal and improper," and they also asserted causes of action to recoverdamages, inter alia, for breach of contract based on lost membership benefits.
The SOA defendants moved for summary judgment dismissing the complaint insofar asasserted against them. The Supreme Court granted the motion. Rejecting the plaintiffs' contentionthat the action sounded in breach of contract, rather than conduct which is subject to review in aCPLR article 78 proceeding, the Supreme Court agreed that the gravamen of the complaintinsofar as asserted against the SOA defendants was the plaintiffs' expulsion from membership inthe SOA, which was properly the subject of a CPLR article 78 proceeding. The court determinedthat the causes of action against the SOA defendants were barred by the applicable four-monthstatute of limitations, as the plaintiffs commenced this action more than four months after theywere notified by letter dated November 21, 2008, that they were expelled from the SOA(see CPLR 217).
Thereafter, the PBA defendants moved for summary judgment dismissing the complaintinsofar as asserted against them, based on contentions similar to the contentions that the SOAdefendants asserted in their motion for summary judgment. In opposition, the plaintiffs arguedthat, although the motion of the SOA defendants for summary judgment had been granted, thecauses of action against the PBA defendants were distinguishable, because the plaintiffs'expulsion from the PBA included the loss of a contract in the form of a life insurance policy,which established that the complaint sounded in contract and was the proper subject of a plenaryaction and not a CPLR article 78 proceeding.
The Supreme Court granted the motion of the PBA defendants on the ground that the causesof action asserted against them were time-barred under the four-month statute of limitationswhich applies in a CPLR article 78 proceeding (see CPLR 217).
Notwithstanding the allegations in the complaint that the PBA breached an implied contractand that the loss of a life insurance policy constitutes a contractual right which was breached byDormer's expulsion from the PBA, the gravamen of the complaint concerns the conduct of anot-for-profit corporation whose allegedly illegal and improper actions in expelling two membersare properly reviewable under CPLR article 78 (see CPLR art 78; Connors, PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3001:18; State Div. ofHuman Rights v New York State Dept. of Correctional Servs., 90 AD2d 51, 66 n 7 [1982];Matter of Gray v Canisius Coll. of Buffalo, 76 AD2d 30, 33 [1980]; Matter ofWeidenfeld v Keppler, 84 App Div 235, 239 [1903], affd 176 NY 562 [1903]).Further, since the plaintiffs seek to reinstate their membership with full benefits nunc pro tunc,they seek relief that was properly the subject of a proceeding pursuant to CPLR article 78 (seeBroderick v Board of Educ., Roosevelt Union Free School Dist., 253 AD2d 836, 837 [1998];Page v Macchiarola, 126 AD2d 713, 713-714 [1987]; cf. Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd.,86 AD3d 83, 89-90 [2011]).
The PBA defendants also established that although the plaintiffs were notified of theirexpulsion from the PBA by letters dated October 14, 2008, they failed to commence this actionuntil April 28, 2009, which rendered the action time-barred under the four-month statute oflimitations which applies under CPLR article 78 (see CPLR 217 [1]). Accordingly, thePBA defendants established their prima facie entitlement to judgment as a matter of lawdismissing the complaint as time-barred (cf. Solnick v Whalen, 49 NY2d 224 [1980];see Broderick v Board of Educ., Roosevelt Union Free School Dist., 253 AD2d at 837;Schiffer v Tarrytown Boat Club, 219 AD2d 704, 704 [1995], cert denied 519 US864 [1996]). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). As a result, the Supreme Court properly grantedthe PBA defendants' motion for summary judgment dismissing the complaint insofar as assertedagainst them.[*3]
The plaintiffs' remaining contentions are without merit.Angiolillo, J.P., Dickerson, Leventhal and Miller, JJ., concur.