IN RE: JANE DOE (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 16, 2026

Appeal from a judgment of the Supreme Court (Elizabeth Aherne, J.), entered January 15, 2026 in Tompkins County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

In August 2025, petitioner sought to have her two minor children exempted from the requirement that they be vaccinated against polio, tetanus, diphtheria and pertussis prior to attending a school operated by respondent Ithaca City School District, providing certifications from a physician licensed to practice in New York that those “immunization[s] may be detrimental to” the health of the children (Public Health Law § 2164[8] ).  The school district's medical director reviewed the applications and consulted with the State Department of Health, then recommended to respondent Luvelle Brown, the district superintendent, that they be denied.  The superintendent did so in October 2025, holding in separate determinations that the applications “lack[ed] sufficient information of a medical contraindication or precaution [against immunization] consistent with [Advisory Committee on Immunization Practices] guidance or other nationally-recognized evidence-based standard of care.”  The superintendent's determinations further advised that, because the deadline for immunization had passed, the subject children would be excluded from school until petitioner either administratively appealed to the Commissioner of Education and obtained a stay or began the process of vaccinating her children.  Petitioner appealed to the Commissioner and sought a stay of each determination;  the Commissioner's designee advised her that no stay would be granted (see Education Law §§ 310[6–a];  311[2];  Public Health Law § 2164[7][b];  8 NYCRR 276.1[a] ).

Petitioner then commenced this CPLR article 78 proceeding in December 2025, seeking, among other things, a judgment annulling the determinations issued by the superintendent and directing respondents to permit the subject children to attend school.  Respondents answered and raised several objections in points of law, including that petitioner had not exhausted her administrative remedies as required since her appeals to the Commissioner remained pending.  Petitioner responded by discontinuing those unresolved administrative appeals with prejudice.  Following oral argument, Supreme Court ruled from the bench that the matter must be dismissed because petitioner had failed to exhaust her administrative remedies.  Petitioner appeals from the judgment entered thereon.

We affirm.  “[A] party challenging administrative action must exhaust available administrative remedies before seeking judicial review” (Matter of Super Smoke N Save LLC v New York State Cannabis Control Bd., _ AD3d _, _, 261 NYS3d 768, 779 [3d Dept 2026];  see Town of Oyster Bay v. Kirkland, 19 NY3d 1035, 1038 [2012], cert denied 568 U.S. 1213 [2013] ).  The Legislature has provided petitioner with an administrative remedy, authorizing an appeal to the Commissioner by any “party conceiving himself [or herself] aggrieved” from the determination of a school official “denying a child admission to, or continued attendance at, such school for lack of proof of required immunizations in accordance with” Public Health Law § 2164 (Education Law § 310[6–a] ).  Although Education Law § 310 states that an aggrieved party “may” appeal to the Commissioner, the fact that the remedy “is couched in permissive, rather than mandatory terms, ․ did not excuse ․ petitioner from exhausting [her] administrative remedies” (Matter of Schiavone/Shea/Frontier–Kemper v New York City Dept. of Envtl.  Protection, 274 A.D.2d 586, 586–587 [2d Dept 2000];  see Matter of Sanchez v. Coughlin, 112 A.D.2d 673, 673–674 [3d Dept 1985] ).  Notwithstanding her further argument, petitioner's calculated discontinuance of her appeals to the Commissioner and consequent failure to perfect them constituted a failure to exhaust those remedies (see Matter of Foster v. New York State Parole Bd., 131 AD3d 1332, 1332–1333 [3d Dept 2015];  Matter of Yiouti Rest. v. New York State Tax Commn., 135 A.D.2d 973, 973–974 [3d Dept 1987] ).

As for whether petitioner showed that this case fell within an exception to the general requirement that she exhaust her administrative remedies before seeking judicial review, we agree with Supreme Court that she did not.  Petitioner suggested that “resort to an administrative remedy would be futile,” alleging, among other things, delays in the administrative appeals process and the Commissioner's purported untoward deference to local school officials in prior appeals (Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 [1978] ).¹  Petitioner failed to meaningfully support either proposition and, in any event, having “some reason to doubt that her appeal[s] would be successful” fell “far short ․ of establishing that pursuit of the appeal process would be an exercise in futility” (Matter of Pfaff v Columbia–Greene Community Coll., 99 A.D.2d 887, 887 [3d Dept 1984];  see Matter of Sabino v. DiNapoli, 90 AD3d 1392, 1394 [3d Dept 2011];  Mulgrew v Board of Educ. of City Sch. Dist. of City of N.Y., 88 AD3d 72, 81 [1st Dept 2011];  compare Lehigh Portland Cement Co. v New York State Dept. of Envtl.  Conservation, 87 N.Y.2d 136, 141–143 [1995] ).  As for her further assertion that pursuing the available administrative remedy “would cause irreparable injury” to the subject children since they would be excluded from public school during the pendency of an administrative appeal (Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d at 57), the Commissioner was authorized to stay the initial determination and direct the school district to enroll them while the appeal was pending (see 8 NYCRR 276.1[a] ).  Even if the Commissioner lacked that authority, however, petitioner has an alternative avenue for educating the subject children via homeschooling and did not sustain her burden to show that they could not receive a “substantially equivalent” education in that setting while awaiting the outcome of administrative review (Education Law § 3210[2][d];  see Education Law § 3204;  Matter of Dawson v. Gibson, 176 A.D.2d 876, 877 [2d Dept 1991] ).

Petitioner's final contention, that this case presents a pure question of law that need not be explored upon an administrative review, is also unavailing.  As petitioner points out, Public Health Law § 2164(8) states that the immunization requirement “shall be inapplicable” when a “physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child's health” (emphasis added).  What “may be detrimental to a child's health” is not specified in the statutory text, however, and the Commissioner has exercised the regulatory authority granted to her by the Legislature to both:  (1) define it as “mean[ing] that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with [Advisory Committee on Immunization Practices] guidance or other nationally recognized evidence-based standard of care” and (2) require that any application for an immunization exemption provide sufficient evidence to establish one of those contraindications or precautions (10 NYCRR 66–1.1[l];  see Public Health Law § 2164[8], [10];  10 NYCRR 66–1.3[c];  Matter of Kerri W.S. v. Zucker, 202 AD3d 143, 159 [4th Dept 2021], lv dismissed 38 NY3d 1028 [2022], lv denied 42 NY3d 905 [2024] ).  Although petitioner suggests that those regulatory requirements conflict with the statutory language, “[q]uestions involving proper statutory interpretation, and ․ the reasonable interpretation of an agency's own regulations ․ must first be raised within the agency's own administrative review process,” where pertinent factual and policy issues may be considered (Matter of Grattan v Department of Social Servs. of State of N.Y., 131 A.D.2d 191, 195 [3d Dept 1987], lv denied 70 N.Y.2d 616 [1988];  see Matter of Crumb v. Broadnax, 178 A.D.2d 781, 783 [3d Dept 1991] ).  Thus, as petitioner failed to demonstrate an applicable exception to the requirement that she exhaust her administrative remedies before pursuing judicial review, Supreme Court properly dismissed this matter in its entirety (see Matter of Coritsidis v New York City Dept. of Educ., 242 AD3d 886, 888 [2d Dept 2025] ).

Petitioner's remaining arguments have been examined and found to be lacking in merit.

Reynolds Fitzgerald, J.P., Fisher, McShan and Mackey, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Petitioner suggests that administrative review would also be futile because the Commissioner could not grant, as sought by petitioner, a declaration that the claimed exemptions were valid under Public Health Law § 2164.  We need only note that petitioner is “challenging the determinations of an administrative agency applying” the Public Health Law, which is “the type of challenge that should be brought under CPLR article 78,” and she would not be entitled to declaratory relief regardless (Matter of Adirondack Med. Ctr.-Uihlein v Daines, 119 AD3d 1175, 1176 [3d Dept 2014];  see Greystone Mgt. Corp. v Conciliation & Appeals Bd. of City of N.Y., 62 N.Y.2d 763, 765 [1984];  Matter of Smith v. City of Norwich, 205 AD3d 140, 146 [3d Dept 2022] ).

Corcoran, J.