Randy—The Salon v. New York State Division of Human Rights

201 A.D.2d 901, 607 N.Y.S.2d 811

Opinion

Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in granting the petition prohibiting the State Division of Human Rights (SDHR) from proceeding further upon the complaint of Thomas B., which alleged employment discrimination based upon a perceived disability. The SDHR has jurisdiction to investigate complaints of discrimination and any error of law in the exercise of that jurisdiction must first be challenged by administrative review before judicial review pursuant to section 298 of the Executive Law is available (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789, 791). The extraordinary writ of prohibition does not lie to challenge the SDHR’s initial acceptance of jurisdiction over a complaint of discrimination (Matter of Richards v Mangum, 35 AD2d 124; see also, Matter of Town of Huntington v State Div. of Human Rights, 82 NY2d 783; Matter of Fleetwood Tenants Assn. v New York State Div. of Hous. & Community Renewal, 176 AD2d 941; Matter of McMillan Book Co. v State Div. of Human Rights, 64 Misc 2d 692). (Appeal from Judgment of Supreme Court, Erie County, Whelan, J. — Article 78.) Present — Green, J. P., Pine, Lawton, Doerr and Boehm, JJ.