Opinion
1170 TP 18-02336
03-19-2021
In the Matter of Joseph HACKETT, Petitioner, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Respondent.
JOSEPH HACKETT, PETITIONER PRO SE. CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX (MARILYN BALCACER OF COUNSEL), FOR RESPONDENT.
JOSEPH HACKETT, PETITIONER PRO SE.
CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX (MARILYN BALCACER OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Onondaga County [Anthony J. Paris, J.], dated December 11, 2018) to review a determination of respondent. The determination found no probable cause for claimed discrimination.
It is hereby ORDERED that said petition is unanimously dismissed without costs.
Memorandum: Petitioner filed a complaint with respondent, New York State Division of Human Rights (DHR), alleging this his former employer unlawfully discriminated and retaliated against him. Following an investigation, DHR dismissed the administrative complaint, finding no probable cause to believe that the employer engaged in discriminatory or retaliatory conduct. Petitioner later commenced this proceeding pursuant to Executive Law § 298, contending, inter alia, that DHR's determination was not supported by a rational basis.
We agree with DHR that Supreme Court improperly transferred the proceeding to this Court pursuant to Executive Law § 298 (see Bentkowsky v. Tokio Re Corp. , 139 A.D.2d 436, 436, 527 N.Y.S.2d 25 [1st Dept. 1988] ; see also Matter of Sidoti v. New York State Div. of Human Rights , 212 A.D.2d 537, 537-538, 622 N.Y.S.2d 118 [2d Dept. 1995] ). We nevertheless address the issues in the interest of judicial economy (see Matter of Bradway v. Annucci , 145 A.D.3d 1590, 1591, 42 N.Y.S.3d 897 [4th Dept. 2016] ) and conclude that the petition must be dismissed based on petitioner's failure to name the employer as a necessary party. Pursuant to 22 NYCRR 202.57 (a), a petitioner challenging a determination of DHR must "nam[e] as respondents the State Division of Human Rights and all other parties appearing in the proceeding before the State Division of Human Rights " (emphasis added). Petitioner's failure to join the employer, i.e., a party appearing in the proceeding before the DHR, requires dismissal of the proceeding (see CPLR 1001 ; Matter of Rumman v. Duane Reade , 64 A.D.3d 715, 715, 881 N.Y.S.2d 905 [2d Dept. 2009] ; Matter of Jeanty v. New York State Dept. of Correctional Servs. , 36 A.D.3d 811, 812, 828 N.Y.S.2d 499 [2d Dept. 2007] ; see also Matter of Massapequa Auto Salvage, Inc. v. Donaldson , 40 A.D.3d 647, 649, 835 N.Y.S.2d 419 [2d Dept. 2007] ).