IN RE: LOEB BOATHOUSE SERVICES (2020)

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered June 15, 2018, which, in this hybrid CPLR article 78 proceeding-plenary action, granted respondents' motions to dismiss the first amended petition and second amended verified complaint, unanimously affirmed, without costs.

Petitioner-plaintiff JPO Concepts, Inc. had standing to pursue this article 78 proceeding and plenary action (see Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 N.Y.2d 579, 587, 684 N.Y.S.2d 156, 706 N.E.2d 1180 [1998];  Maraia v. Orange Regional Med. Ctr., 63 A.D.3d 1113, 1115, 882 N.Y.S.2d 287 [2d Dept. 2009] ).  Nevertheless, the court properly dismissed the petition and complaint due to JPO's failure to exhaust its administrative remedies (see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978] ).  JPO did not allege that it submitted a protest which complied with the terms of 12 RCNY 1–08(a) and contrary to its contention, an email sent by its representative to a project manager criticizing the bidder who was subsequently awarded the licensing agreement did not constitute a protest as defined by 12 RCNY 1–08(a).  JPO's email was not sent to the agency head or its designee, and was sent before the agency rendered its determination.  Various individuals' appearances at a Franchise and Concession Review Committee public hearing on behalf of JPO also did not satisfy the terms of 12 RCNY 1–08(a), and the protest was not submitted in writing to the agency head (see Matter of S & M Dev. v. State Div. of Hous. & Community Renewal, 182 A.D.2d 995, 996, 582 N.Y.S.2d 45 [3d Dept. 1992] ).

We find that JPO did not make a proper showing of futility to justify making an exception to the exhaustion of remedies requirement (see generally Mulgrew v. Board of Educ. of the City School Dist. of the City of N.Y., 88 A.D.3d 72, 81, 928 N.Y.S.2d 269 [1st Dept. 2011] ).