Opinion
July 23, 1970
MEMORANDUM BY THE COURT. Application pursuant to section 298 Exec. of the Executive Law to enforce an order made by the State Commissioner of Human Rights, dated January 20, 1970, which, among other things, imposes damages of $500, directs the respondents to cease and desist from certain discriminatory practices and requires the performance of certain affirmative acts. Respondents move for: (1) an extension of time to permit an appeal to the Human Rights Appeal Board, or (2) a dismissal of the proceeding. In the alternative, they ask for an extension to allow them to appeal to this court and that Thomas Merante be dropped as a party respondent. The State Human Rights Appeal Board is required to hear appeals by any party to any proceeding from all orders of said Commissioner, provided such appeals are commenced by filing a notice of appeal with the board within 15 days after service of such order (Executive Law, § 297-a, subd. 6, par. c), but this court has no power to extend said time. Although section 298 Exec. of the Executive Law provides that a respondent aggrieved by an order of the board may obtain judicial review thereof, the court should not act until the administrative remedies provided by law have been exhausted ( People ex rel. Uvalde Asphalt Paving Co. v. Seaman, 217 N.Y. 70; Allegheny Airlines v. Fowler, 261 F. Supp. 508). We note, however, that it was error for the hearing officer to prevent respondent Thomas Merante's attempt to establish, by cross-examination of complainant as to her marital status, number of children and sources of income, the defense that refusal to rent her the premises was predicated, not on race or color, but on her allegedly bad reputation which would have caused trouble in the neighborhood. (See Executive Law, § 297, subd. 4, par. a.) However, no appeal from the decision having been taken, the court is foreclosed from considering the error. Before this court may properly act upon an application for an enforcement order, the record before it should disclose the investigations made by the division and its findings ( Matter of State Div. of Human Rights v. Union Carbide Corp., 34 A.D.2d 636). Respondents urge that the petition is insufficient since it fails to allege findings of noncompliance after investigation. Petitioner's response is simply that it is clear that respondents have not complied with the order and that the $500 has not been paid over to complainant. Petitioner's allegation upon information and belief, not stating any sources of information or grounds for belief, that respondents have complied with only one provision of the order, does not sufficiently allege noncompliance with the order in any respect. (See Matter of Holland v. Edwards, 282 App. Div. 353, 359, affd. 307 N.Y. 38.) Respondents' motion denied. Petition denied without prejudice to renewal of the application after appropriate proceedings as indicated herein, without costs. Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by the court.