Koch v. New York State Division of Human Rights

84 A.D.2d 520, 443 N.Y.S.2d 382, 1981 N.Y. App. Div. LEXIS 15546

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 1981
• Status: Published

Opinion

Judgment, denominated order, Supreme Court, New York County (Kirschenbaum, J.), entered January 6, 1981, reversed, on the law, and the petition dismissed, without costs. Leave to appeal is granted nunc pro tunc. Within a period of about 20 months, petitioner-respondent addressed seven complaints (Executive Law, § 297) to respondents-appellants New York State Division of Human Rights and various of its officers, alleging racially discriminatory practices by Metropolitan Transit Authority by means of selective enforcement of laws respecting nonpayment of fares. Appellant investigated in course, and eventually advised respondent that the complaints would be dismissed. Dismissal followed and respondent instituted appeals to the Human Rights Appeal Board (Executive Law, §297-a), seemingly in accordance with the Executive Law’s statutory scheme for internal administrative review. However, without waiting for resolution of the appeals, petitioner pro se instituted this proceeding under CPLR article 78 for the same relief, completely ignoring section 298 of the Executive Law, which sets out when and how intervention of the courts may be sought in a case involving human rights. Appellant cross-moved for dismissal (CPLR 7804, subd [f]), which should have been granted, the matter having been brought to court before exhaustion of prescribed administrative procedure. (See Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57.) We reverse accordingly. Concur — Bims, J. P., Sandler, Ross, Markewich and Fein, JJ.