Kandel v. State Division of Human Rights

70 A.D.2d 817, 418 N.Y.S.2d 755, 1979 N.Y. App. Div. LEXIS 12368

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1979
• Status: Published

Opinion

— Application by petitioner for review and reversal, pursuant to section 298 of the Executive Law, of an order of State Human Rights Appeal Board, entered February 7, 1979, which affirmed an order of the State Division of Human Rights, entered August 24, 1978, dismissing petitioner’s complaint of unlawful discrimination as time barred, denied; the cross motion for dismissal and vacatur of the petition for lack of personal jurisdiction, or, in the alternative, for opportunity to answer the petition, regarded, in the exercise of discretion, as one to dismiss on the ground that the cause stated may not be maintained by reason of a Statute of Limitation, and granted, and the petition dismissed, on the law, without costs. Petitioner claims to have been discriminated against in her employment by a hospital, based on her age and sex, culminating in discharge on March 24, 1976. Endeavoring to pursue grievance procedures, petitioner delayed presentation of her complaint to the Division of Human Rights until almost two years following the events complained of, and her complaint was rejected by the division as time barred (Executive Law, § 297, subd 5). Respondent hospital did not answer the complaint, relying solely upon the fact that petitioner did not comply with CPLR 2103 (subd [a]) in that, being a party and therefore disqualified so to do, she served the process initiating this proceeding. We regard this as a mere irregularity (CPLR 2001) and would sustain the service. Were it not that it appears without question from the papers before us that the matter is actually time barred, we would permit respondent to answer and have the issue resolved on the merits. In the circumstances, we prefer not to go through the charade of directing an answer which will inevitably raise the defense of time limitation. Accordingly, we treat the cross motion as one pursuant to CPLR 3211 (subd [a], par 5) to dismiss as time barred, and grant that motion. Concur— Fein, J. P., Sullivan, Bloom, Markewich and Ross, JJ.