Capote v. Our Lady of Mercy Medical Center

168 A.D.2d 238, 562 N.Y.S.2d 478, 1990 N.Y. App. Div. LEXIS 14767

Opinion

Judgment, Supreme Court, New York County (Lewis R. Friedman, J.), entered May 4, 1990, which dismissed the petition for failure to exhaust administrative remedies, unanimously affirmed, without costs.

In November 1988, petitioner was suspended from the medical staff of the respondent medical center. He claimed in a CPLR article 78 petition that the medical center failed to notify him of the specific charges against him, and failed to provide him a due process hearing. The statutory procedure by which a physician may challenge a termination of hospital privileges is a two-step process, the first of which is review of the physician’s claim by the Public Health Council, pursuant to Public Health Law § 2801-b. Only if the parties are thereafter unable to resolve their differences may the physician commence an action to enjoin the hospital from unjustifiably denying professional privileges or staff membership in violation of Public Health Law § 2801-b (Matter of Cohoes Mem. Hosp. v Department of Health, 48 NY2d 583, 588). The petitioner’s failure to follow this procedure required dismissal of his petition as premature. Such a disposition is all the more appropriate here since we have been apprised post the argument of the appeal that petitioner has sought administrative relief. Concur—Ross, J. P., Rosenberger, Asch, Kassal and Wallach, JJ.