IN RE: James CAPOSSELA (1999)

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Governors of the Wykagyl Country Club dated June 26, 1997, expelling the petitioner as a member thereof, the appeal is from an order of the Supreme Court, Westchester County (Scarpino, J.), entered December 23, 1997, which granted the petition to the extent of annulling the determination and remitting the matter to the Wykagyl Country Club for further proceedings, and denied the cross motion of the Wykagyl Country Club to dismiss the proceeding for failure to state a cause of action.

ORDERED that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c] );  and it is further,

ORDERED that the order is affirmed, without costs or disbursements.

The Wykagyl Country Club, a not-for-profit corporation, was formed for the pleasure and recreation of its members, to encourage the sport of golf and other sports, and for other social purposes.   Management of the club, including eligibility for and expulsion from membership, is determined in accordance with the classifications, qualifications, and limitations provided in the by-laws, which provide, in pertinent part:

“The Board of Governors shall have the power by vote of a majority of the Board present to censure, suspend or expel any member * * * for conduct improper or prejudicial, in its judgment, to the good name and welfare of the Club;  provided that before such suspension or expulsion not less than 10 days notice of action upon the charges shall be given in writing to the member against whom they are made, specifying the same, and the time and place when and where the Board is to meet to consider same.

“The Board of Governors shall be the sole judge of what shall be conduct improper and prejudicial to the welfare of the Club” (emphasis supplied).

By letter dated June 4, 1997, the Board of Governors invited the petitioner to attend a special meeting of the Board at which he would “be asked to answer questions regarding” his conduct at a prior committee meeting, his filing of a defamation lawsuit against another member, and criminal charges pending against him.   Prior to the meeting, counsel for the petitioner notified the Board that the petitioner would appear at the meeting with legal counsel and requested that he be informed as to whether or not it is the intention of the Board, as a result of the special meeting, to vote for the censure, suspension, or expulsion of the petitioner.   In reply, the Board wrote that the petitioner would not be permitted to be represented by counsel.   The Board did not indicate whether suspension or expulsion of the petitioner from the club would be sought following the meeting.

The petitioner's expulsion from the club was in violation of Not-For-Profit Corporation Law § 601 because the Board did not strictly comply with its own by-laws, in failing to notify the petitioner in writing of the charges against him and the action that might be taken upon those charges (see, Matter of Purpura v. Richmond County Country Club, 114 A.D.2d 460, 494 N.Y.S.2d 371;  Matter of Kendrick v. Watermill Beach Club, 8 Misc.2d 798, 165 N.Y.S.2d 1009).   Although the Board invited the petitioner to attend a special meeting at which he would be asked questions regarding certain conduct, it did not inform him of the consequences of that conduct, namely, expulsion (see, Matter of Aprile v. Lo Grande, 89 A.D.2d 563, 452 N.Y.S.2d 104, affd. 59 N.Y.2d 886, 466 N.Y.S.2d 316, 453 N.E.2d 545 for reasons stated below;  Matter of Nametra, Inc. v. American Soc. of Travel Agents, 28 Misc.2d 291, 211 N.Y.S.2d 655).

MEMORANDUM BY THE COURT.