SUPREME COURT OF NEW YORK
Leslie Rios and Melissa Medina-Rios,
individually and as registered domestic partners,
Metropolitan Transportation Authority, d/b/a MTA, et al.,
2004 NY Slip Op 51738U
2004 N.Y. Misc. Lexis 2884
December 22, 2004, Decided
This opinion is uncorrected and will not be published in the printed official reports.
Philip G. Minardo, J.
Defendants’ motion (No. 1069), inter alia, for summary judgment dismissing the complaint pursuant to CPLR 3212 is granted; plaintiffs’ cross motion (No. 1221) for summary judgment is denied as academic.
Plaintiff Leslie Rios is an employee of defendant Staten Island Rapid Transit Operating Authority (“SIRTOA”) and, as such, a member of defendant United Transportation Union Local 1440 (the “UTU”). SIRTOA, a public benefit corporation, is a subsidiary of defendant Metropolitan Transportation Authority (“MTA”), which is also a public benefit corporation established under Public Authorities Law § 1263 . The New York City Transit Authority (sued herein as “MTA New York City Transit”) also is a public benefit corporation that is separate and distinct from the MTA, and was established under Public Authorities Law § 1201. Defendants Peter Kalikow (MTA’s chairman), Lawrence G. Reuter (the Transit Authority’s president) and Robert Curcio (a SIRTOA manager) are named as party defendants in their official capacities.
By “Stipulation of Partial Discontinuance” dated March 2, 2004, plaintiffs have withdrawn their claims against the “MTA Long Island Railroad d/b/a LIRR” and its president, James J. Dermody. Additionally, by Stipulation dated April 13, 2004, plaintiffs have also withdrawn with prejudice those portions of the third cause of action which pertain to their claims of discrimination based upon “marital status”.
On October 1, 2002, plaintiffs Leslie Rios (“Ms. Rios”) and Melissa Medina-Rios (“Ms. Medina”), who have been in a committed lesbian relationship for a period of more than two and one-half years, registered with the New York City Office of the City Clerk as Domestic Partners and were issued a Certificate of Domestic Partnership. Ms. Rios thereafter requested that her registered domestic partner be added to the medical insurance plan that was provided to her as a SIRTOA employee pursuant to the UTU-SIRTOA labor agreement. Her request was denied by SIRTOA on the basis that its collective bargaining agreement with the defendant labor union, which represents Ms. Rios, does not provide medical coverage for such additional persons as the domestic partners of its employees. According to SIRTOA, the “family” medical plan covers only UTU represented employees, their spouses and their dependent children.
Plaintiffs thereafter commenced this action to remedy, inter alia, the alleged violation of (1) New York City Administrative Code §§ 8-101, 8-107 (the New York City Human Rights Law), which, as relevant, prohibits discrimination in the terms, conditions or privileges of employment based upon sexual orientation; (2) New York State Executive Law §§ 290, 296(1)(a) (the New York State Human Rights Law), which similarly prohibits such unlawful discriminatory practices by an employer; (3) an Executive Order of Governor George E. Pataki codified at 9 NYCRR § 5.32 which establishes a State policy against discrimination on the basis of sexual orientation; and (4) MTA New York City Transit equal employment opportunity policy, which prohibits discrimination in the terms, conditions and privileges of employment based, e.g., upon sexual orientation.
Plaintiffs maintain, in pertinent part, that health benefits for them and those similarly situated are a “legal entitlement” pursuant to the New York City and New York Sate Human Rights Laws, and that defendants’ denial of these benefits to Ms. Medina based on her status as the registered domestic partner of Ms. Rios is discriminatory insofar as it results in the disparate treatment of plaintiffs and those similarly situated, in the terms, conditions and privileges of employment on the basis of sexual orientation.
In view of the foregoing, plaintiffs seek a judgment (1) declaring the medical benefits that they were denied a “legal obligation” of the defendants rather than a “privilege of employment” properly achieved through collective bargaining, (2) declaring that the acts, policies, practices and procedures complained of are a violation of plaintiffs’ rights under New York City Administrative Code 6-123, 8-101 et seq., New York State Executive Law § 290 et seq., and 9 NYCRR § 5.32, and (3) declaring that defendants have treated gay and lesbian domestic partners in a disparate and discriminatory manner. Additionally, plaintiffs seek (1) an injunction restraining and enjoining defendants from engaging in further discriminatory acts, (2) an order compelling defendants to authorize medical insurance benefits to Ms. Medina and all those similarly situated, (3) the appointment of a monitor to review the practices and policies of defendants to eradicate discriminatory practices on their part, (4) monetary damages in the form of reimbursements for, inter alia, medical costs paid by Ms. Rios for Ms. Medina, (4) punitive damages based upon defendants’ knowing and intentional ratification of the discriminatory conduct complained of, and (5) attorneys’ fees, costs and interest.
Proper Parties and Standing
In moving to dismiss the complaint pursuant to CPLR 3211(a)(7) and CPLR 3212 , defendants have adequately established that Ms. Rios’ employer, SIRTOA, is a separate and distinct legal entity and was solely responsible for the decision to deny the requested medical benefits. In this regard, the affidavit of defendant Robert Curcio, Manager of Pension and Administrative Benefits for SIRTOA, who dealt personally with Ms. Rios and her local UTU representative regarding the denial of her request, is undisputed. Additionally, Mr. Curcio and another SIRTOA employee, Owen Swords (Senior Director, Employee Policy Compliance), both attest that neither MTA nor Transit Authority (TA) personnel were consulted in connection with the denial of plaintiff’s request. Finally, Public Authorities Law § 1266(5) provides, in pertinent part, that the employees of any MTA subsidiary corporation (e.g., SIRTOA), except those who are also employees of the MTA, shall not be deemed employees of the MTA.
As a consequence of the foregoing, the complaint as against defendants MTA and its chairman, Peter S. Kalikow, must be dismissed, as they are neither necessary nor proper parties. However, since there are issues of fact with regard to the TA’s status as a signatory to the UTU-SIRTOA collective bargaining agreement, dismissal of the complaint as against the TA and its president, Lawrence G. Reuter, on similar grounds, is precluded.
Defendants’ also contend that plaintiff Melissa Medina-Rios lacks standing to assert any employment discrimination claims in this matter since she is not a SIRTOA employee and, thus, her claims are, at best, derivative of Ms. Rios’. According to defendants, such derivative claims may not be asserted in employment discrimination cases as a matter of law. In this regard, defendants rely upon the general rule that the spouse of an employee alleging discrimination under the Executive Law is not a person aggrieved within the meaning of that statute (see Executive Law § 297; Mehtani v New York Life Ins. Co., 145 A.D.2d 90, 95, 537 N.Y.S.2d 800 [1st Dept 1989], lv. denied 74 N.Y.2d 835, 545 N.E.2d 631, 546 N.Y.S.2d 341, 85 N.Y.2d 806, 650 N.E.2d 1325, 627 N.Y.S.2d 323; accord Belle v Zelmanowicz, 305 A.D.2d 272, 761 N.Y.S.2d 26 [1st Dept 2003]; Rich v Coopervision, 198 A.D.2d 860, 861, 604 N.Y.S.2d 429 [4th Dept 1993]; Belanoff v Grayson, 98 A.D.2d 353, 358, 471 N.Y.S.2d 91 [1st Dept 1983]; Weinstein v Hosp. for Joint Diseases & Medical Ctr., 53 A.D.2d 627, 384 N.Y.S.2d 203 [2nd Dept 1976]).
In view of the foregoing and in the absence of any controlling authority relating specifically to the status of the domestic partners of employees alleging discrimination under the Executive Law, the court declines to confer standing upon Ms. Medina, who would have no such cause of action under the Executive Law even as the spouse of Ms. Rios. Additionally, there being no difference between the rights and remedies granted under the New York City Human Rights Law (New York City Administrative Code §§ 8-101, et seq.) and the New York State Human Rights Law (the Executive Law §§ 290, 296), it is the opinion of this court that an employer’s motion to dismiss a claim brought under the New York City Human Rights Law must be “subjected to the same analysis” in the “manner and amount of proof required to prevail” as those brought under the New York State Human Rights Law (see annotations to New York City Administrative Code § 8-101, citing Mohamed v Marriott International, 905 F. Supp. 141 [SDNY 1995]). Accordingly, the court is constrained to hold that plaintiff Melissa Medina-Rios lacks standing under the parallel employment discrimination provisions of the New York City Administrative Code, as well.
Applicability of the New York City Human Rights Law
On their motion for summary judgment, defendants also argue that Public Authorities Law § 1266(8) n1 expressly exempts the MTA and its subsidiaries (which includes SIRTOA), and the TA from the jurisdiction of local laws, including the employment discrimination provisions of the New York City Administrative Code (NYCHRL). In support, movants refer to numerous “Notices of Administrative Closures” issued by the New York City Commission on Human Rights dismissing, for lack of jurisdiction, complaints against the TA for employment discrimination under New York City Administrative Code §§ 8-101, 8-107[a] and 8-107(17) based upon Public Authorities Law § 1266(8).
The court, however, declines to dismiss the complaint on this ground absent any evidence that compliance with the local laws and regulations prohibiting employment discrimination would interfere with the accomplishment of the public authorities’ function and purpose (see Levy v City Commission on Human Rights, 85 N.Y.2d 740, 746, 651 N.E.2d 1264, 628 N.Y.S.2d 245; Huerta v New York City Tr. Auth., 290 A.D.2d 33, 39, 735 N.Y.S.2d 5 [1st Dept 2001]; app dismissed 98 N.Y.2d 643, 771 N.E.2d 831, 744 N.Y.S.2d 758). As such, the public authority defendants (the MTA and TA) will not be immunized by this court from complying with the Administrative Code provisions pertaining to employment discrimination.
Timeliness of the Non-Statutory Claims
Defendants further maintain that plaintiffs’ non-statutory claims (i.e., their fourth, fifth and sixth causes of action) are time barred. These claims relate, respectively, to defendants’ alleged violation of both the Executive Order codified at 9 NYCRR § 5.32 and the MTA’s Equal Employment Opportunity (EEO) policy (the fourth and fifth causes of action), as well as a further cause of action (the sixth), which seeks a declaration that the medical benefits sought herein are defendants’ “legal obligation”.
In support of dismissal, defendants contend that a four-month Statute of Limitations should apply to plaintiffs’ non-statutory claims, since the essential relief sought therein arises out of the employer’s denial of medical benefits and therefore is remediable via CPLR article 78 proceedings. According to the movants, the running of the four-month limitations period commenced on October 9, 2002, the date on which Mr. Curio alleges that he personally informed Ms. Rios that such additional coverage “was not part of the medical insurance provided for in the labor agreement”, and expired four months thereafter. It is undisputed that this action was only commenced within four months of Mr. Curios’ written response to Ms Rios’ second request for additional coverage, which was made, in writing, in or about September of 2003 by a local UTU representative on her behalf.
In determining the appropriate limitations period applicable to plaintiffs’ “Sixth”, i.e., declaratory judgment cause of action, “it is necessary to examine the substance of [the] action to identify the relationship out of which the claim arises and the relief sought” (Solnick v Whalen, 49 N.Y.2d 224, 229, 401 N.E.2d 190, 425 N.Y.S.2d 68). If “the rights of the parties sought to be stabilized...are, or have been, open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that period limits the time for commencement of the declaratory judgment action” (id. at 229-230).
Applying this standard here, since the gravamen of plaintiffs’ claim is SIRTOA’s alleged illegal denial of additional medical benefits, the issue is one which could have been challenged in CPLR article 78 proceeding (see CPLR 7803, ), and therefore the time within which to assert their claims “cannot be extended through the simple expedient of denominating the action as one for declaratory relief” (New York City Health & Hosps. Corp. v McBarnette, 84 N.Y.2d 194, 201, 639 N.E.2d 740, 616 N.Y.S.2d 1, rearg denied 84 N.Y.2d 865, 642 N.E.2d 328, 618 N.Y.S.2d 9; see Rosenthal v City of New York, 283 A.D.2d 156, 158, 725 N.Y.S.2d 20 [1st Dept 2001]) n2. Nor may the result be avoided by reference to the later denial of Ms. Rios’ written request for the same relief (see e.g., Matter of Edmead v McGuire, 67 N.Y.2d 714, 716, 490 N.E.2d 853, 499 N.Y.S.2d 934; Matter of De Milio v Borghard, 55 N.Y.2d 216, 220, 433 N.E.2d 506, 448 N.Y.S.2d 441; cf. Adams v City of New York, 271 A.D.2d 341, 707 N.Y.S.2d 73 [1st Dept 2000]), for even if the intervention of her union was necessary to raise the issue under the collective bargaining agreement, Ms. Rios’ failure to allege the exhaustion of any grievance procedure available to her would operate as a bar to this action (see Matter of Board of Educ. v Ambach, 70 N.Y.2d 501, 508, 517 N.E.2d 509, 522 N.Y.S.2d 831, cert denied sub nom Margolin v Board of Educ., 485 U.S. 1034, 99 L. Ed. 2d 908, 108 S. Ct. 1593; Goldstein v Tabb, 177 A.D.2d 470, 471, 575 N.Y.S.2d 902 [2nd Dept 1991], lv. denied 80 N.Y.2d 753, 600 N.E.2d 632, 587 N.Y.S.2d 905; Formica v Town of Huntington, 295 A.D.2d 400, 743 N.Y.S.2d 298 [2nd Dept 2002]).
Accordingly, plaintiffs’ Sixth Cause of Action for a declaratory judgment must be dismissed.
The “Fourth” and “Fifth” causes of action will be considered infra.
Sexual Orientation Discrimination/Disparate Treatment
The standard for recovery under Section 296 of the Executive Law and the human rights provisions of the New York City Administrative Code are identical with regard to sexual orientation discrimination, as the latter mirrors the provisions of the former. Accordingly, in moving to dismiss these causes of action, defendants maintain that plaintiffs’ claim of intentional sexual orientation discrimination based upon “disparate treatment” under both the Executive Law (the Third Cause of Action) and the Administrative Code (the First Cause of Action) are factually inapposite since the employer’s refusal to provide medical benefits applies equally to all unmarried employees with domestic partners regardless of the employees’ (or their partners’) heterosexual or homosexual orientation.
In addition, defendants’ have submitted affidavits establishing that there are significant business reasons for SIRTOA’s refusal to extend medical coverage to Ms. Rios’ domestic partner, e.g., that the terms of the collective bargaining agreement between itself and the UTU may not be changed unilaterally by the employer, and that the unanticipated cost of providing such additional coverage for Ms. Rios’ domestic partner would exceed $5,750.00 per year n3.
Under the current burden-shifting framework for establishing employment discrimination, both the City and State Human Rights Laws place the initial burden upon the plaintiff to demonstrate a prima facie case of discrimination. Once this is accomplished, a defendant-employer must counter such proof through the introduction of admissible evidence of a legitimate, independent and nondiscriminatory reasons to support its challenged employment decision, at which point it again becomes plaintiff’s burden to introduce evidence that the reason proffered is merely a “pretext” for discrimination (see Ferrante v American Lung Assn., 90 N.Y.2d 623, 629, 687 N.E.2d 1308, 665 N.Y.S.2d 25). This is accomplished when it is shown “both that the reason was false, and that discrimination was the real reason” (Ferrante v American Lung Assn., 90 N.Y.2d at 630, quoting St. Mary’s Honor Ctr. v Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 113 S. Ct. 2742 [emphasis in original]; Forrest v Jewish Guild for the Blind, 309 A.D.2d 546, 553, 765 N.Y.S.2d 326 [1st Dept 2003], lv. granted 1 N.Y.3d 506, 808 N.E.2d 358, 776 N.Y.S.2d 222; Layaou v Xerox Corp., 298 A.D.2d 921, 922, 748 N.Y.S.2d 85 [4th Dept 2002]).
On a motion for summary judgment, it is clearly the movant’s burden to establish its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595). Accordingly, for defendants to prevail relative to the subject causes of action they must demonstrate, inter alia, without proof to the contrary, “that the complained-of conduct. ..was prompted by legitimate, nondiscriminatory reasons” (Forrest v Jewish Guild for the Blind, 309 A.D.2d at 553). In the opinion of the court, they have met that burden here.
In opposing this branch of defendants’ motion, plaintiffs have failed to offer any admissible evidence tending to establish that the asserted reasons for the denial of medical benefits were pretexts for illegal discrimination (see Ferrante v American Lung Assn., 90 N.Y.2d at 629). Instead, they proffer only the unsubstantiated allegation that they were treated differently from other employees based on their sexual orientation, a showing which is legally insufficient, standing alone, to raise a triable issue of fact (see Forrest v Jewish Guild for the Blind, 309 A.D.2d at 553; Zuckerman v City of New York, 49 N.Y.2d at 562; Alvord v Swift & Muller Constr. Co., 46 N.Y.2d 276, 385 N.E.2d 1238, 413 N.Y.S.2d 309). Under these circumstances, defendants are entitled to summary judgment dismissing plaintiffs’ first and third causes of action (see Pramdip v Building Serv., 308 A.D.2d 523, 765 N.Y.S.2d 44 [2nd Dept 2003]; Maguire v Quaker Ridge Golf Club, 306 A.D.2d 253, 760 N.Y.S.2d 234 [2nd Dept 2003]; King v Brooklyn Sports Club, 305 A.D.2d 465, 759 N.Y.S.2d 339 [2nd Dept 2003]; Roundtree v School Dist. of City of Niagara Falls, 294 A.D.2d 876, 741 N.Y.S.2d 633 [4th Dept 2002]).
Sexual Orientation Discrimination/Disparate Impact
It is undisputed that in addition to reiterating the protections provided by the State Human Rights Law, the New York City Human Rights Law provides additional protection to certain groups against policies or practices in areas of employment that, although neutral on their face and in intent, have an unjustified “disparate impact” upon one or more of the covered groups (see New York City Administrative Code § 8-107); Levin v Yeshiva Univ., 96 N.Y.2d 484, 489, 491-492, 754 N.E.2d 1099, 730 N.Y.S.2d 15). Accordingly, a separate consideration of plaintiffs’ “disparate impact” discrimination claim is required.
With regard to plaintiffs’ claim of sexual orientation discrimination based upon “disparate impact” (i.e., their Second Cause of Action), defendants maintain that the claim is improperly pleaded since the instant complaint lacks any allegations demonstrating that the employer’s denial of medical benefits to the domestic partners of SIRTOA’s employees “results” in any “statistically significant” disparate impact (see New York City Administrative Code § 8-107[a],[b]). As noted above, defendants have already established that the denial of medical benefits to Ms. Rios’ domestic partner “bears a significant relationship to a significant business objective” (New York City Administrative Code § 8-107[a]). Thus, in order to avoid dismissal of their “disparate impact” claim, plaintiffs were required to present substantial evidence that an alternative policy or practice was available that would serve defendants’ legitimate business objective with a less disparate impact (New York City Administrative Code § 8-107[a]; Levin v Yeshiva Univ., 96 N.Y.2d at 492). This they have failed to do.
Assuming arguendo that plaintiffs have adequately alleged that the “imbalance” created by SIRTOA’s denial of medical coverage for the domestic partners of its employees is “statistically significant”, i.e., that it disproportionately burdens lesbians and gay men (see New York City Administrative Code § 8-107[b]), they have failed to tender substantial evidence of any “available alternative policy or practice” to overcome defendants’ prima facie showing that the denial of medical benefits was based upon a “significant business objective” (New York City Administrative Code § 8-107[a]). In this regard, plaintiffs’ simply maintain that defendants’ assertion of the affirmative defense of legitimate, non-discriminatory reasons for the denial of benefits in support of summary judgment is “premature and [may be] properly interposed [only] after discovery”. In the absence of any citation of relevant authority, the court disagrees.
It is well settled that a motion for summary judgment may be denied or a continuance granted to allow disclosure if “facts essential to justify opposition may exist, but cannot then be stated” (CPLR 3212[f]). Nevertheless, in order to claim the benefit of this provision, the opponents of summary judgment are required to demonstrate a likelihood of the discovery of such evidence (see Frouws v Campbell Foundry Co., 275 A.D.2d 761, 714 N.Y.S.2d 227 [2nd Dept 2000]), a burden which has not been satisfied in the case at bar.
Here, plaintiffs have failed to allege what kind of evidence, e.g., records or statistics kept by SIRTOA, might be obtained during discovery that would allow them to defeat this motion. Instead, their opposition consists entirely of expressions of hope and speculation that the requisite evidence will be uncovered (see Davidson v E.Q.K. Green Acres, 298 A.D.2d 546, 749 N.Y.S.2d 47 [2nd Dept 2002]). The foregoing, however, is insufficient to defeat defendants’ motion as regards plaintiffs’ Second Cause of Action.
The Executive Order and the EEO Policy
Plaintiffs’ Fourth Cause of Action is predicated upon an alleged violation of an Executive Order signed by Governor George E. Pataki on April 9, 1996. This order, codified in 9 NYCRR § 5.32, establishes a state “policy” against discrimination based upon sexual orientation, but is applicable by its terms solely to the conduct of the State of New York in its capacity as an employer and not to public benefit corporations such as defendants, which are not New York State agencies. Moreover, no authority has been cited which would support a private right of action predicated upon an employer’s conduct that allegedly is inconsistent with the “policy” outlined in the Governor’s Executive Orders. Accordingly, even if timely interposed, the Fourth Cause of Action must be dismissed.
Somewhat similarly, plaintiffs’ Fifth Cause of Action, sounding in breach of contract, is based upon a certain MTA New York City Transit “Equal Employment Opportunity Policy” dated April 2002, which contains a provision prohibiting discrimination based upon sexual orientation. However, this policy does not, as plaintiffs allege, constitute a binding and enforceable contract, and therefore may not serve as the basis for a private right of action based on breach of contract (see Blaise-Williams v Sumitomo Bank, 189 A.D.2d 584, 586, 592 N.Y.S.2d 41 [1st Dept 1993]). Under these circumstances, the timeliness of this cause of action has also been rendered academic.
In any event, any breach of contract claimed by plaintiffs concerning the benefits available under the collective bargaining agreement would be subject to its grievance and arbitration procedures, and as previously noted, the complaint herein is devoid of any allegations regarding the exhaustion of these remedies prior to the commencement of this action. Therefore, plaintiffs’ Fifth Cause of Action is dismissed.
The Demand for Punitive Damages
Plaintiffs also seek to recover punitive damages. However, inasmuch as SIRTOA and the other MTA-related defendants are public benefit corporations performing functions essentially governmental in nature, punitive damages are not available against them (see Clark-Fitzpatrick, Inc. v Long Is. RR Co., 70 N.Y.2d 382, 386-388, 516 N.E.2d 190, 521 N.Y.S.2d 653; Karoon v New York City Tr. Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27 [1st Dept 1997]). Therefore, the claim for punitive damages is dismissed.
Additional Demands for Declaratory Judgment
In addition to the Sixth Cause of Action, which has been dismissed as untimely (see infra), plaintiffs, in their ad damnum clause, seek further declarations that defendants have violated New York City Administrative Code 6-123, 8-101et seq., Executive Law § 290 et seq., and 9 NYCRR § 5.32. Defendants request that these demands bestricken.
It is well settled that “[a] cause of action for a declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy in another form of action” (BGW Dev. Corp. v Mt. Kisco Lodge No.1552, 247 A.D.2d 565, 568, 669 N.Y.S.2d 56 [2nd Dept 1998], lv. denied 92 N.Y.2d 813, 704 N.E.2d 227, 681 N.Y.S.2d 474). Here, plaintiffs have asserted separate causes of action for each alleged statutory violation. Accordingly, no separate cause of action for a declaratory judgment will lie, and so much of defendants’ motion as is for the dismissal of plaintiffs’ remaining requests for declaratory relief must be granted.
Accordingly, it is
ORDERED, the defendants’ motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed; and it is further
ORDERED, that plaintiffs’ cross motion for summary judgment is denied as academic; and it is further
ORDERED, that the Clerk is directed to enter judgment accordingly.
ENTER, December 22, 2004
1. Public Authorities Law § 1266(8), as amended in May 2000, provides, in pertinent part, “no municipality or political subdivision, including but not limited to a county, city, village, town or school or other district shall have jurisdiction over any facilities of the [metropolitan transportation] authority and its subsidiaries, and New York City transit authority and its subsidiaries, or any of their activities or operations.”
2. In this regard, it has been held in relevant part that a remedy under CPLR article 78 is available where the “organizational structures involved [have] been created....by statute and [their] operations are to some degree regulated by statute in the performance of a public governmental function” (Matter of Buschmann v United New York Sandy Hook Pilots’ Assn., 38 N.Y.2d 774, 345 N.E.2d 337, 381 N.Y.S.2d 865; see Public Authorities Law §§ 1202, § 1264).
3. Since it would be clearly indefensible for defendants to provide additional coverage to plaintiffs without including all others similarly situated, the annual cost to SIRTOA would have to be considerably greater than the amount quoted, but any further estimate of its actual cost would only be speculative at this juncture.