670 N.Y.S.2d 291 | N.Y. App. Div. | 1998
—Order unanimously reversed on the law without costs, motion granted, complaint dismissed, petition granted in part and matter remitted to New York State Division of Human Rights for further proceedings on the administrative complaint in accordance with the following Memorandum: On May 23, 1995, complainant filed a complaint with the New York State Division of Human Rights (Division).
Kodak contends that the ACD granted by the Division was arbitrary because it contravenes the election of remedies provision of the Human Rights Law (Executive Law § 297 [9]) as well as the Division’s regulations then in effect (9 NYCRR 465.5 [e] [2] [vi]). We agree. Under Executive Law § 297 (9), a person claiming to be aggrieved by unlawful discriminatory practices may elect to seek redress in either an administrative or a judicial forum. As a general rule, the remedies are intended to be mutually exclusive (Marine Midland Bank v New York State Div. of Human Rights, 75 NY2d 240, 245, rearg denied 75 NY2d 947; Matter of Pan Am. World Airways v New York State Human Rights Appeal Bd., 61 NY2d 542, 548). Once a complainant elects the administrative forum by filing a complaint with the Division, a subsequent judicial action on the same complaint is generally barred (Executive Law § 297 [9]; Marine Midland Bank v New York State Div. of Human Rights, supra, at 245).
Beforé the election of remedies statute was recently amended (L 1997, ch 374), the single exception to the mutually exclusive nature of the elective remedies arose when a complaint was dismissed by the Division for “administrative convenience” (Executive Law § 297 [9]; see, Marine Midland Bank v New York State Div. of Human Rights, supra, at 245; Emil v Dewey, 49 NY2d 968, 969). In that situation, the complainant retained
Although Executive Law § 297 (3) (c) provides that dismissals by the Division for administrative convenience are within the agency’s “unreviewable discretion” and are authorized at any time prior to a hearing, the Court of Appeals has recognized that the agency’s authority under the statute is “not boundless” (Marine Midland Bank v New York State Div. of Human Rights, supra, at 246). Dismissals based on administrative convenience are subject to judicial review to the extent that they are “purely arbitrary”, i.e., to the extent that they contravene or threaten to contravene a statute or constitutional right or violate the agency’s own regulations (Matter of Pan Am. World Airways v New York State Human Rights Appeal Bd., supra, at 547).
We conclude that the Division’s dismissal of the complaint on the ground of administrative convenience was “purely arbitrary” because it contravened the election of remedies provision of Executive Law § 297 (9) and the agency’s own regulation (9 NYCRR 465.5 [e] [2] [vi]). The record establishes that complainant filed an administrative complaint with the Division and thereafter sought an ACD from the Division in order to commence an action in State court. The record further establishes that, before the Division granted the ACD, plaintiff commenced an action in State Supreme Court. Thus, the ACD subsequently granted by the Division contravenes the election of remedies provision of Executive Law § 297 (9) and the Division’s own regulation (9 NYCRR 465.5 [e] [2] [vi]). Therefore, Kodak’s motion must be granted, the complaint in the State court action dismissed, the petition granted in part, the administrative complaint reinstated and the matter remitted to the Division for further proceedings on the administrative complaint. (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Executive Law.)