This case is not published in a printed volume and its disposition appears in a table in the reporter.
O'Hara, O'Connell & Ciotoli (Dennis G. O'Hara, Esq., and Steven C. Judge, Esq. of counsel), attorneys for Petitioner
Hodgson Russ LLP (Christian J. Soller,
Esq., of counsel) and Mark J. McCormick, Esq., attorneys for Respondents
McCormick; Mark J. McCormick, Esq., attorney for Respondents Northern New York
Sports Officials' Council, Northern New York Soccer Officials' Association, and
Northern New York Girls' Basketball Association.
David R. Demarest, J.
Jude M. Davis ("Petitioner") commences this proceeding by Verified Petition filed December 17, 2007, pursuant to Article 78 of the New York Civil Practice Law and Rules ("C.P.L.R."), seeking a declaration that the actions of Respondents ("Respondents"): the Northern New York Soccer Officials Association ("NNYSOA") and its President, Michael Ruddy ("Ruddy"); the Northern New York Girls Basketball Officials' Association ("NNYGBOA") and its President Mark McCormick ("McCormick"); and, the Northern New York Sport Officials' Council ("NNYSOC"), are null and void on the grounds Respondents' actions were arbitrary and capricious and an abuse of discretion. In addition, Petitioner seeks a stay of the suspension handed down by Respondents. Respondents have not answered the Petition, but have moved for its dismissal, arguing: 1) none of Respondents is a "body or officer" as defined by C.P.L.R. Rule 7802(a), and C.P.L.R. Article 78 is not an available remedy to Petitioner; 2) the Petition fails to state a cause of action against NNYSOC and NNYGBOA; and, 3) Petitioner failed to exhaust her administrative remedies. Respondents further seek leave to answer the Petition on the merits should their motion be denied. Although not articulated as such, Respondents, by their motion, appear to raise an objection in point of law. Accordingly, if the motion is denied, C.P.L.R. Rule 7804(f) requires Respondents be permitted to file an answer to the Petition. Petitioner opposes the motion seeking dismissal.
It is necessary to first address the issue of the availability of C.P.L.R. Article 78 remedies to Petitioner. McCormick, President of NNYSOC and NNYGBOA, named as a Respondent, appears as counsel for all Respondents.  He argues, on behalf of himself and Respondents that they are "...voluntary, unincorporated associations of individuals, not public bodies or officers..." and, accordingly, the Petition must be dismissed. He further argues none of Respondents are quasi-governmental and they do not derive their power to act from New York State. He refers to NNYSOC as an "umbrella organization" formed for the primary purpose of negotiating terms and conditions of officiating employment amongst high schools.
NNYSOC is recognized, in the "Agreement Between Section X New York State Public High School Athletic Association And The Northern New York Sports Officials Council, June 2005 - June 2009" ("Agreement") as "...an association whose members are qualified officials who are also members of local officials' associations throughout the North Country and members in good standing of the State Officials' organizations..." and is the "...exclusive representative of all sports officials' organizations in the Section and will continue to act as the exclusive bargaining agent so long as it has fifty-one percent of officials' subdivisions under its aegis...." Section X is a geographic division of public schools in St. Lawrence and Franklin counties in northern New York State under the auspices of the New York State Public High School Athletic Association, Inc. ("NYSPHSAA"). NYSPHSAA is a domestic not-for-profit New York corporation comprised of member public and private high schools engaging in interscholastic athletic events. Respondents quote the "Agreement" language setting forth the membership of NNYSOC, i.e. "...members are qualified officials who are also members of local officials' associations" and suggest the definition includes only officials' organizations and not individual officials.
Attached as Exhibits "A" and "B" to Petitioner's Reply Affirmation dated January 9, 2008, are copies of the New York State Department of State Division of Corporations Certificates of Incorporation for both NYSPHSAA and NNYSOC, directly contradicting Respondents' claim they are "...voluntary, unincorporated associations of individuals ...."
Respondents do not dispute Petitioner's claim that NYSPHSAA "...operates under the aegis of the New York State Commissioner of Education." Furthermore, New York's Codes, Rules and Regulations ("N.Y.C.R.R."), Title 8, Chapter II, Subchapter G, Part 135, reflects governmental oversight over high school sports. See 8 N.Y.C.R.R. Part 135.1 (definitions) and 135.4( c) (7)(ii)(b).
Petitioner also relies on Caso v. New York State Public High School Athletic Association, Inc., 78 A.D.2d 41 (4th Dep't 1980), in support of her claim that C.P.L.R. Article 78 judicial review is an available and appropriate remedy. Caso states:
"An article 78 proceeding is the appropriate remedy to compel private corporations to fulfill obligations imposed upon them by statute as well as by their internal rules including adherence to ...