Opinion
February 7, 1994
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the order is affirmed, with costs.
Executive Law § 297 (9) provides that an individual aggrieved by unlawful discrimination on the part of an employer, as defined in Executive Law § 296, may sue in court for damages "and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights". The plaintiff had previously pursued an administrative action before the State Division of Human Rights, alleging, inter alia, that the defendant had discriminated against her during her employment because of her age. Upon investigation, however, the Division of Human Rights concluded that plaintiff's claim of discrimination was unfounded. The plaintiff subsequently brought this action against the defendant, alleging that she had been instead the victim of racial discrimination on her job. The plaintiff is barred from maintaining this action because she has already pursued a statutory claim of employment discrimination encompassing the same allegedly invidious behavior on the part of her employer over the same period of time (see, Executive Law § 297; Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 35; Horowitz v. Aetna Life Ins., 148 A.D.2d 584; Matter of James v Coughlin, 124 A.D.2d 728; Spoon v. American Agriculturalist, 103 A.D.2d 929; Matter of State Div. of Human Rights v. Luppino, 35 A.D.2d 107, affd 29 N.Y.2d 558). Moreover, there is a general prohibition against splitting a single claim into multiple legal actions (see, O'Brien v. City of Syracuse, 54 N.Y.2d 353; Smith v Russell Sage Coll., 54 N.Y.2d 185; Brown v. Lockwood, 76 A.D.2d 721, 739-740). We also note that the plaintiff has adduced no evidence whatever of discrimination on the part of the defendant, whereas the record fully supports the defendant's position that the plaintiff's work was unsatisfactory, her absences were excessive, and that she had engaged in an altercation with a patient which escalated to the point of physical contact (Dicocco v. Capital Area Community Health Plan, 135 A.D.2d 308). Thompson, J.P., O'Brien, Ritter and Altman, JJ., concur.