MATTER OF FRONTIER-KEMPER v. N.Y.C. DEPT

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

The petitioner challenges a determination of the respondent New York City Department of Environmental Protection to reject all bids on certain public contracts. The petitioner commenced this proceeding without exhausting the administrative remedies available to it under the Procurement Policy Board Rules (see, 9 RCNY § 4-04[a]).

It is well settled that "'[a] litigant who seeks to challenge a determination of an administrative agency must exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts'" (Matter of Frumoff v. Wing, 239 A.D.2d 216, 217, see also, Capers v. Giuliani, 253 A.D.2d 630, 633). The Supreme Court improperly determined that the petitioner was not required to exhaust all administrative remedies available to it before commencing the instant proceeding. Although the administrative remedy available to the petitioner under the Procurement Policy Board Rules is couched in permissive, rather than mandatory terms, that did not excuse the petitioner from exhausting the administrative remedies available to it (see, e.g., Matthews v. Barrios-Paoli, 270 A.D.2d 152 [1st Dept., Mar. 23, 2000]; Abreu v. New York City Police Dept., 182 A.D.2d 414; Matter of Beyah v. Scully, 143 A.D.2d 903). Additionally, although the exhaustion of administrative remedies doctrine is subject to certain exceptions, including where resort to an administrative remedy would be futile or cause irreparable harm to the petitioner (see, Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57; Matter of Parkway Hosp. v. Axelrod, 178 A.D.2d 644; Matter of Good Samaritan Hosp. v. Axelrod, 150 A.D.2d 775), the petitioner failed to establish that any of these exceptions apply in this case. Accordingly, the petition must be denied and the proceeding dismissed (see, Matter of Crystal Pond Homes, Inc. v. Prior, 267 A.D.2d 383; Matter of Jardim v. New York State Pub. Empl. Relations Bd., 265 A.D.2d 329; Matter of Nautilus Landowners Corp. v. Harbor Commn., 232 A.D.2d 418).