The opinion
Aitcheson-Valentin v Act Up/New York, Inc.
2024 NY Slip Op 32427(U)
July 11, 2024
Supreme Court, New York County
Docket Number: Index No. 158452/2023
Judge: Kathleen Waterman-Marshall
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INDEX NO. 158452/2023
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 07/15/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. KATHLEEN WATERMAN-MARSHALL PART 09M
Justice
---------------------------------------------------------------------------------X INDEX NO. 158452/2023
CARLOS AITCHESON-VALENTIN
MOTION DATE 01/22/2024
Petitioner,
MOTION SEQ. NO. 003
-v-
ACT UP/NEW YORK, INC., DECISION + ORDER ON
MOTION
Respondent.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 44, 45, 46, 47, 50, 52,
53, 54, 55
were read on this motion to/for AMEND CAPTION/PLEADINGS .
Upon the foregoing documents, the motion by Petitioner Carlos Aitcheson-Valentin (“Mr.
Aitcheson-Valentin”) for leave to supplement his Verified Petition with additional factual allegations
respecting Respondent ACT UP/NEW YORK, INC. (“ACT UP”) and causes of action, is granted in part.
Brief Background
ACT UP is an organization incorporated under New York Not-for-Profit Corporation Law (“N-
PCL”) § 402. Mr. Aitcheson-Valentin was an active member of ACT UP throughout the 1990s and
between 2010 and 2020. On August 25, 2023, Mr. Aitcheson-Valentin commenced this Article 78
proceeding against ACT UP seeking, inter alia, to annul its June 2020 policy respecting harassment (the
“Harassment Policy”), April 17, 2023 bylaws (the “April 2023 Bylaws”), and April 24, 2023 resolution
concerning Mr. Aitcheson-Valentin’s membership in the organization (the “April 2023 Resolution”), as
arbitrary and capricious, violative of lawful procedure, affected by an error of law and/or an abuse of
discretion. He also asserts an unspecified challenge to ACT UP’s alleged failure to maintain a board of
directors.
The facts pertinent to this motion, as alleged in Mr. Aitcheson-Valentin’s verified petition, are as
follows: In June 2020, ACT UP purported to adopt the Harassment Policy, which, inter alia, prohibits
members from engaging in harassment and sets forth a mechanism for members to report, and ACT UP’s
Harassment Grievance Team (the “HGT”) to address, alleged harassment. In August 2021, the HGT
notified Mr. Aitcheson-Valentin that two formal harassment complaints were made against him. Mr.
Aitcheson-Valentin answered and disputed the complaints, but on September 2, 2021, the HGT
determined that his conduct warranted permanent expulsion from the organization (the “2021 HGT
Decision”). Mr. Aitcheson-Valentin appealed the 2021 HGT Decision on October 1, 2021. On January
26, 2023, he commenced a separate Article 78 proceeding, seeking, among other relief, to compel ACT
UP to issue its determination on the appeal and produce a copy of its bylaws. The court (Hon. Arlene P.
Bluth, J.S.C.) granted that verified petition in part by Decision and Order dated March 23, 2023 and, inter
alia, directed ACT UP to issue its determination and produce a copy of its bylaws, along with
documentation concerning the enactment of those bylaws, to Mr. Aitcheson-Valentin within 45 days of
service of the order with notice of entry. Shortly thereafter, ACT UP purported to adopt, without a
quorum or proper notice to its members, the April 2023 Bylaws, which contain an invalid quorum
provision, and the April 2023 Resolution, which denied Mr. Aitcheson-Valentin’s appeal of the 2021
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HGT Decision. ACT UP produced a copy of the April 2023 Bylaws, a memorandum concerning their
adoption, and the April 2023 Resolution to Mr. Aitcheson-Valentin on May 8, 2023.
On August 25, 2023, Mr. Aitcheson-Valentin commenced the instant Article 78 proceeding
challenging the Harassment Policy, the April 2023 Bylaws, and April 2023 Resolution. On December 14,
2023, the court (Hon. Erika M. Edwards, J.S.C.) adjourned the verified petition to January 22, 2024. On
January 16, 2024, ACT UP opposed and cross-moved to dismiss the verified petition as moot, given that
over 150 of its members attended membership meetings on January 8 and 15, 2024 (the “January 2024
Meetings”) and voted to adopt: 1) amended bylaws (the “January 2024 Bylaws”), which it claims remedy
Mr. Aitcheson-Valentin’s concerns; 2) all prior votes retroactively, except that respecting Mr. Aitcheson-
Valentin, which members voted to remit to the HGT for a new recommendation; and 3) a new
recommendation respecting Mr. Aitcheson-Valentin (the “2024 HGT Recommendation”). The 2024 HGT
Recommendation includes additional allegations of harassment and a recommends different remedies
than the HGT Decision. Namely, the HGT recommended that Mr. Aitcheson-Valentin need not be
expelled from the organization, since he resigned from membership in July 2020, but should be barred
from future membership and participation.
On January 20, 2024, Mr. Aitcheson-Valentin filed the instant motion for leave to supplement the
verified petition. In his proposed supplemental petition, Mr. Aitcheson-Valentin alleges that ACT UP
improperly notified its members of the January 2024 Meetings, usurped their authority by dictating the
agendas of those meetings, and adopted the January 2024 Bylaws in violation of the April 2023 Bylaws
and N-PCL § 608 (e). Mr. Aitcheson-Valentin further claims that the January 2024 Bylaws to not redress
all of the organization’s alleged infirmities, and that ACT UP failed to afford him the opportunity to
address the additional harassment claims contained in the 2024 HGT Recommendation, applied an
amended version of the Harassment Policy, and published the 2024 HGT Recommendation to NYSCEF
(NYSCEF Doc. No. 42), notwithstanding that the Harassment Policy, April 2023 Bylaws, and January
2024 Bylaws require the HGT to carry out their duties in confidence. Thus, in addition to the relief sought
in his verified petition, Mr. Aitcheson-Valentin seeks to annul all actions taken by ACT UP during the
January 2024 Meetings, annul the 2024 HGT Recommendation, and compel ACT UP to file the 2024
HGT Recommendation under seal.
ACT UP opposes Mr. Aitcheson-Valentin’s motion for leave to supplement and challenges the
merits of his proposed supplemental claims. ACT UP primarily contends, inter alia, that Mr. Aitcheson-
Valentin seeks to improperly expand the scope of this proceeding, asserts no viable legal theory, and lacks
standing to assert his proposed supplemental claims, given that he withdrew from membership.
Discussion
CPLR 3025 (b) permits a party to “amend his or her pleading, or supplement it by setting forth
additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all
parties.” It is well-settled that motions for “leave to amend or supplement pleadings should be freely
granted, unless the amendment sought is palpably improper or insufficient as a matter of law or unless
prejudice and surprise directly results from the delay in seeking the amendment” (Nissenbaum v
Ferazzoli, 171 AD2d 654, 655 [2d Dept 1991] [leave to serve supplemental complaint properly granted
where, inter alia, defendant’s action during pendency of appeal affects plaintiff’s remedy and new cause
of action arises out of same underlying facts]; see CPLR 3025 [b]).
While this Court could not find, and the parties did not present, authority that directly addresses
such motions in the context of this proceeding, motions for leave to supplement or amend in Article 78
proceedings have been properly denied where the proposed additional complaint was not at issue in the
underlying determination and “there was no indication that [the] petitioner exhausted his administrative
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remedies in connection with that new complaint” (Johnson v Uhler, 205 AD3d 1277, 1278 [3d Dept
2022]), where a proposed additional claim concerned unrelated proceedings and “impermissibly
expand[ed] the scope of the original proceeding” (Matter of Green v Bradt, 91 AD3d 1235, 1237 [3d
Dept 2012], quoting Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]), and where the
petitioner failed to allege sufficient facts that would establish the proffered cause of action (see generally
Matter of Patterson v City of New York, 173 AD3d 540 [1st Dept 2019] [motion to amend petition in
Article 78 properly denied where petitioner failed to allege facts that would establish cause of action]).
Here, ACT UP cannot reasonably contend that Mr. Aitcheson-Valentin failed to timely raise the
proposed supplemental allegations and causes of action, or that that surprise and prejudice would result
therefrom. Mr. Aitcheson-Valentin filed this motion immediately after the January 2024 Meetings and
ACT UP issued the 2024 HGT Recommendation in direct response to, and in an attempt to affect the
relief sought in, his verified petition (see generally Nissenbaum v Ferazzoli, 171 AD2d at 655). Thus, this
Court’s inquiry is limited to whether Mr. Aitcheson-Valentin’s proposed supplemental allegations and
causes of action respecting the actions taken by ACT UP during the January 2024 Meetings and the 2024
HGT Recommendation are palpably improper, insufficient as a matter of law, or otherwise improper for
review.
There is no indication that Mr. Aitcheson-Valentin’s claims are barred by the statute of
limitations or improper for this Court’s review. In Article 78 proceedings, courts have properly disposed
of similar challenges to a not-for-profit’s bylaws, the presence of a quorum at a not-for-profit’s meeting,
and determinations affecting the rights of its members (see Sealey v American Soc. Of Hypertension, 10
Misc3d 572 [Sup Ct, NY County 2005], affd 26 AD3d 254 [1st Dept 2006] [court, in Article 78
proceeding, properly directed that petitioners be reinstated to not-for-profit corporation’s board of
directors where new bylaws, and all actions taken pursuant to them respecting removal of petitioners,
invalid; quorum provision inconsistent with statutory requirements and no quorum present for vote to
amend bylaws]; see also Capossela v Wykagyl Country Club, 258 AD2d 522 [2d Dept 1999] [order, in
Article 78 proceeding, annulling not-for-profit respondent’s determination to expel petitioner affirmed,
where expulsion in violation of N-PCL § 601]).
While the Court recognizes that Article 78 proceedings are limited in scope (see CPLR 7803),
Mr. Aitcheson-Valentin’s proposed supplemental allegations and challenges to the January 2024
Meetings and 2024 HGT Recommendation are intrinsically intertwined with the relief sought in his
verified petition. Each act alleged in this regard was taken by ACT UP to affect Mr. Aitcheson-Valentin’s
membership in the organization, arises out of his alleged harassment, and may affect the ultimate relief
sought in this proceeding. Accordingly, the Court grants Mr. Aitcheson Valentin leave to supplement his
verified petition with the factual allegations and causes of action raised in his proposed supplemental
petition respecting the actions taken by ACT UP during the January 2024 Meetings and the 2024 HGT
Recommendation.
Mr. Aitcheson-Valentin’s request for leave to supplement the verified petition with a request to
compel ACT UP to file the 2024 HGT Recommendation under seal is denied, as the proposed
supplemental petition does not allege facts sufficient to support a finding of good cause, which is required
for the Court to award such relief (see 22 NYCRR 216.1 [a] [“Except where otherwise provided by statute
or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in
whole or in part, except upon written finding of good cause… In determining whether good cause has
been shown, the court shall consider the interests of the public as well as all of the parties.”]; see
generally Mosallem v Berenson, 76 AD3d 345, 349 [1st Dept 2010] [finding of ‘good cause’ presupposes
public access to documents at issue will likely result in harm to compelling interest of the movant]). The
Court also notes that the proposed supplemental petition fails to specify any provision of ACT UP’s
Harassment Policy or bylaws that extends a proclaimed right to confidentiality to the context of this
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proceeding, and Mr. Aitcheson-Valentin himself filed harassment complaints and the 2021 HGT Decision
to NYSCEF prior to this motion (NYSCEF Doc. Nos. 6, 9).
Accordingly, it is hereby
ORDERED that Mr. Aitcheson-Valentin’s motion for leave to supplement is granted, solely to
the extent that he may supplement the verified petition with the factual allegations and causes of action in
his proposed supplemental petition respecting the actions taken by ACT UP during the January 2024
Meetings and 2024 HGT Recommendation (paras. 104 through 154);
ORDERED that the supplemental petition (NYSCEF Doc. No. 46) shall be deemed served upon
the filing of this Decision and Order; and it is further
ORDERED that ACT UP shall supplement its cross-motion to dismiss to address the
supplemental allegations and causes of action permitted herein, within 20 days of service of the
supplemental petition; and it is further
ORDERED that the return date of Motion Seq. No. 1 is adjourned to August 12, 2024.
7/11/2024
DATE KATHLEEN WATERMAN-MARSHALL, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE SUBMIT ORDER
CHECK IF INCLUDES
ORDER FIDUCIARY REFERENCE
APPROPRIATE: TRANSFER/REASSIGN APPOINTMENT
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