Opinion
585 CA 17–01991
05-04-2018
In the Matter of Sharon SCHWERTFAGER, Petitioner–Appellant, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, New York State, State University of New York and State University College at Fredonia, Respondents–Respondents.
LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (LINDY KORN OF COUNSEL), FOR PETITIONER–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JOSEPH M. SPADOLA OF COUNSEL), FOR RESPONDENTS–RESPONDENTS NEW YORK STATE, STATE UNIVERSITY OF NEW YORK AND STATE UNIVERSITY COLLEGE AT FREDONIA.
LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (LINDY KORN OF COUNSEL), FOR PETITIONER–APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JOSEPH M. SPADOLA OF COUNSEL), FOR RESPONDENTS–RESPONDENTS NEW YORK STATE, STATE UNIVERSITY OF NEW YORK AND STATE UNIVERSITY COLLEGE AT FREDONIA.
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (SDHR) that there was no probable cause to believe that petitioner's employer, State University of New York at Fredonia, incorrectly sued as State University College at Fredonia (respondent), discriminated and retaliated against her. We reject petitioner's contention that Supreme Court erred in dismissing the petition.
Initially, we note that petitioner did not address her discrimination claims in her memorandum of law or at oral argument in the motion court, nor did she address them in her brief on appeal. Consequently, any issues with respect to those claims have been abandoned (see Haher v. Pelusio, 156 A.D.3d 1381, 1382, 67 N.Y.S.3d 744 [4th Dept. 2017] ; Cleere v. Frost Ridge Campground, LLC, 155 A.D.3d 1645, 1646–1647, 65 N.Y.S.3d 405 [4th Dept 2017] ).
Contrary to petitioner's contention, the determination of SDHR is supported by a rational basis and is not arbitrary and capricious (see Matter of Witkowich v. New York State Div. of Human Rights, 56 A.D.3d 1170, 1170, 866 N.Y.S.2d 907 [4th Dept. 2008], lv denied 12 N.Y.3d 702, 876 N.Y.S.2d 349, 904 N.E.2d 504 [2009] ; cf. Matter of Mambretti v. New York State Div. of Human Rights, 129 A.D.3d 1696, 1696–1697, 12 N.Y.S.3d 692 [4th Dept. 2015], lv denied 26 N.Y.3d 909, 20 N.Y.S.3d 544, 42 N.E.3d 214 [2015] ). Contrary to petitioner's further contention, upon our review of the record, we conclude that SDHR " 'properly investigated petitioner's complaint ... and provided petitioner with a full and fair opportunity to present evidence on [her] behalf and to rebut the evidence presented by [respondent]' " ( Witkowich, 56 A.D.3d at 1170, 866 N.Y.S.2d 907 ).