Schauseil v. Wing

251 A.D.2d 1080, 675 N.Y.S.2d 576, 1998 N.Y. App. Div. LEXIS 7194

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1998
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in dismissing this action for a declaratory judgment. As a general rule, “one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57; see also, Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, 87 NY2d 136, 140). Although exhaustion of administrative remedies “is not required where an agency’s action is challenged as beyond its grant of power or when resort to an administrative remedy would be futile” (Lehigh Portland Cement Co. v New York State Dept, of Envtl. Conservation, supra, at 140), plaintiffs do not contend that defendants are acting beyond their grant of power, and we reject their contention that resort to administrative remedies would be futile. Plaintiffs contend that the administrative process does not include a means for obtaining an interim decision on legal issues that could potentially reduce the number of days consumed by evidentiary hearings. Although resort to administrative remedies may be more time consuming, plaintiffs have failed to establish that it would be futile (see, Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, supra, at 141-143). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Dismiss Action.) Present — Green, J. P., Lawton, Pigott, Jr., Callahan and Balio, JJ.