Montero v. Police Ass'n of Yonkers, Inc.

148 A.D.3d 1023

49 N.Y.S.3d 746

In the Matter of Raymond MONTERO, appellant,

v.POLICE ASSOCIATION OF the CITY OF YONKERS, INC., also known as Yonkers Police Benevolent Association, respondent (and another title).

Supreme Court, Appellate Division, Second Department, New York.

March 22, 2017.

The Sarcone Law Firm, PLLC, White Plains, NY (John A. Sarcone III, Clifford J. Bond, and Pasquale Sommella of counsel), for appellant.

The Quinn Law Firm, PLLC, White Plains, NY (Joseph M. Latino and Steven Bushnell of counsel), for respondent.

L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and FRANCESCA E. CONNOLLY, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the Police Association of the City of Yonkers, Inc., also known as Yonkers Police Benevolent Association, dated June 2, 2014, expelling the petitioner from its membership, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Neary, J.), entered December 1, 2014, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, and the determination dated June 2, 2014, is annulled.

The petitioner, then a member of the respondent, Police Association of the City of Yonkers, Inc., also known as Yonkers Police Benevolent Association, was charged by the respondent with committing certain misconduct. The petitioner was given notice of the charges and of a scheduled hearing on the charges, although he chose not to appear. A determination was made on June 2, 2014, to expel the petitioner. The petitioner commenced this CPLR article 78 proceeding to review that determination.

" ‘[W]here the constitution and by-laws of a voluntary association reasonably set forth grounds for expulsion and provide for a hearing upon notice to the member, judicial review of such proceedings is unavailable, unless the reason for expulsion is not a violation of the constitution or by-laws or is so trivial as to suggest that the action of the association was capricious or corrupt, or unless the association failed to administer its own rules fairly’ " (Matter of Kelly v. Northport Yacht Club, Inc., 44 A.D.3d 858, 859, 844 N.Y.S.2d 358, quoting Bloch v. Veteran Corps. of Artillery, State of N.Y., 61 A.D.2d 772, 773, 402 N.Y.S.2d 200 ; see Matter of Marandino v. Westchester Country Club, Inc., 33 A.D.3d 800, 800–801, 822 N.Y.S.2d 762 ; see also CPLR 7803[3] ).

Here, the respondent's determination that the petitioner committed conduct that was "prejudicial to the welfare of the Association," in violation of the bylaws, was arbitrary and capricious (see Madden v. Atkins, 4 N.Y.2d 283, 292–293, 174 N.Y.S.2d 633, 151 N.E.2d 73 ). The petitioner was charged with providing "information" to the author of articles published online, providing that author with an email from the respondent's president to the members, publishing that email online himself, with comments, and being involved in an altercation with another member. Other than the single identified email, there is no basis in the record on which to...