Matter of Daniels v New York State Dept. of Disabled Am. Veterans

Matter of Daniels v New York State Dept. of Disabled Am. Veterans 2007 NY Slip Op 03765 [40 AD3d 219] May 1, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Monday, October 1, 2007

In the Matter of Edward M. Daniels et al., Appellants,
v
New York State Department of Disabled American Veterans et al., Respondents.

—[*1] Kaye Scholer LLP, New York (Mark A. Beckman of counsel), for appellants.

Jeffrey Berson, New York, for respondents.

Orders, Supreme Court, New York County (Charles J. Tejada, J.), entered August 29 and 31, 2005, which vacated earlier temporary restraining orders regarding the election of officers of New York State Department of Disabled American Veterans (DAV) Chapter 126, and order, same court and Justice, entered January 19, 2006, which dismissed the petition, unanimously affirmed, without costs.

Respondent DAV is a not-for-profit organization created primarily for the purpose of providing aid and care to disabled veterans. DAV invalidated an election in which petitioner Bello was purportedly elected commander of Chapter 126, and suspended both Bello and the Chapter. Petitioners contend that DAV's actions were arbitrary and capricious.

Immediately after the suspension, DAV began an internal grievance procedure related to the election and Bello's conduct in connection therewith. Believing the grievance mechanism to be invalid, Bello refused to cooperate, and instead brought this proceeding after efforts to solicit rulings of various officials in both the state and national DAV levels were unsuccessful. It is thus clear that petitioners did not exhaust their administrative remedies; indeed, Bello repeatedly endeavored to circumvent DAV's internal procedures. It is well settled that when a nongovernmental entity such as DAV provides timely and adequate relief, "an aggrieved member must first exhaust that organization's remedies before seeking redress from a court" (Madden v Atkins, 4 NY2d 283, 291 [1958]; see also Morgan v New York Racing Assn., 72 AD2d 740 [1979]).

Moreover, since "a motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading" (Guggenheimer v [*2]Ginzburg, 43 NY2d 268, 272 [1977]), the court was warranted in dismissing the petition. Concur—Mazzarelli, J.P., Nardelli, Buckley, Catterson and Malone, JJ.