Fraser v. Patrolmen's Benevolent Ass'n

179 A.D.2d 563

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1992
• Status: Published

Opinion

Petitioner commenced this proceeding to compel respondent, a private association health and welfare fund for police retirees, to reinstate his benefits, as well as those of his wife from whom he is legally separated. According to respondents, legal separation discontinues benefits for the spouse. When respondents learned that claims had been paid to petitioner’s spouse after the two were separated, it demanded reimbursement from petitioner, to the extent of $202.00, and discontinued his benefits when he refused.

Petitioner’s article 78 proceeding was properly dismissed, it being well established that mandamus does not lie against a private association (Matter of Ivey v Coughlin, 111 AD2d 648, appeal dismissed 66 NY2d 1035; State Div. of Human Rights v New York State Dept. of Correctional Servs., 90 AD2d 51, 67). Since petitioner has not demonstrated a right to relief, we do not reach his motion for class action certification, but do note that his conclusory allegations do not satisfy the requirements of CPLR 902. Petitioner is granted leave to replead, if so advised, to advance claims by way of declaratory relief sounding in breach of contract and negligence. Concur — Rosenberger, J. P., Wallach, Kupferman, Asch and Rubin, JJ.