FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES IS AN AFFIRMATIVE DEFENSE WHICH CAN BE WAIVED; THE JUDGE, THEREFORE, SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ARTICLE 78 PETITION ON THAT GROUND; PETITION REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 proceeding should not have been dismissed, sua sponte, on the ground petitioner had not exhausted his administrative remedies, which is an affirmative defense to be raised by the respondent, not the judge:

The Supreme Court’s sua sponte dismissal of the proceeding for the petitioner’s failure to exhaust his administrative remedies was error. “Failure to exhaust administrative remedies is not an element of an article 78 claim for relief, but an affirmative defense which must be raised by respondent either in an answer or by preanswer motion or else be deemed waived” … . Matter of Bobar v Transit Adjudication Bur., 2021 NY Slip Op 01255, Second Dept 3-3-21