IN RE: Alexander KURBATSKY (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Koweek, J.), entered January 31, 2017 in Columbia County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motions to dismiss the petition/complaint.

Respondent International Conference of Funeral Service Examining Boards (hereinafter the Conference) is an incorporated not-for-profit corporation that, among other things, develops and administers the National Board Exam (hereinafter NBE), a national licensing examination used by states, including New York, as one prerequisite for licensure in the funeral service profession.  In 2013, the Conference sued the American Academy of McAllister Institute of Funeral Service, Inc. (hereinafter AAMI), a mortuary school, claiming that AAMI improperly obtained NBE test questions by inducing its students to share their recollections of the exam with the AAMI administration.  As part of that litigation, the Conference was able to ascertain the identity of certain AAMI students who participated in the alleged scheme, including petitioner, who was already licensed and practicing by that time.  The Conference invalidated those students' test scores and required that they retake the exam.  The Conference also reserved the right to inform member boards and other relevant stakeholders of the exam invalidation and refused to process exam score transfer requests to other jurisdictions until a valid, defensible NBE score was achieved.  Petitioner ultimately retook the exam, failed and subsequently received notice that it was possible that his license would be suspended.

In December 2015, petitioner commenced this combined CPLR article 78 proceeding and action for declaratory judgment alleging various federal and state claims.  The Conference, among others, then moved, pre-answer, to dismiss the petition/complaint in its entirety, arguing, in relevant part, that petitioner had not demonstrated that the Conference was subject to CPLR article 78 review or that there had been any final determination affecting his license.  Supreme Court granted the motions and petitioner now appeals.  We affirm.

On appeal, petitioner contends that Supreme Court erred in dismissing the petition/complaint after determining that the Conference is not an entity susceptible to CPLR article 78 review.  Even if we agreed with this contention, petitioner's failure to challenge the court's alternative ground for dismissal based upon lack of finality, an issue dispositive of his claim, is fatal.¹

ORDERED that the judgment is affirmed, with costs.

FOOTNOTES

1.   To the extent that petitioner addressed this issue in his reply brief, it is not properly before us (see Matter of Jay's Distribs., Inc. v. Boone, 148 A.D.3d 1237, 1241, 48 N.Y.S.3d 551 [2017], lv denied 29 N.Y.3d 918, 2017 WL 4015519 [2017];  Matter of Rosenfelder [Community First Holdings, Inc.–Commissioner of Labor], 137 A.D.3d 1438, 1440, 28 N.Y.S.3d 137 [2016] ).

Pritzker, J.

Lynch, J.P., Devine, Mulvey and Aarons, JJ., concur.