Opinion
152550/2018
06-29-2018
STUYVESANT OWNERS INC., Petitioner(s), v. DIVISION OF HUMAN RIGHTS, Respondent(s).
Petitioner's Attorney: Shamsundar Gary Moorley, Esq., Mitofsky, Shapiro, Neville & Hazen LLP, 152 Madison Ave., FL 3, NY, NY 10016. 212–736–0500. Respondent's Attorney: Aaron M. Woskoff, Esq., New York State Division of Human Rights, 1 Fordham Plaza, Fourth Floor, Bronx, NY 10458. 718–741–8409.
Petitioner's Attorney: Shamsundar Gary Moorley, Esq., Mitofsky, Shapiro, Neville & Hazen LLP, 152 Madison Ave., FL 3, NY, NY 10016. 212–736–0500.
Respondent's Attorney: Aaron M. Woskoff, Esq., New York State Division of Human Rights, 1 Fordham Plaza, Fourth Floor, Bronx, NY 10458. 718–741–8409.
Andrew Borrok, J.
Recitation, as required by CPLR § 2219(a), of the papers considered on the review of this Petition to compel the Division of Human Rights (the Respondent) to dismiss the complaint of Elle Petrincic Zonis and motion to dismiss the Petition
PAPERS NUMBERED
Notice of Petition and Affidavits and Exhibits Annexed 1
Notice of Motion and Affidavits and Exhibits Annexed 2
Answering Affidavits
Replying Affidavits 3
Sur–Reply Affidavits
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
The Petition to compel the Respondent to dismiss the complaint of Elle Petrincic Zonis is denied and the motion of the Respondent to dismiss the Petition is granted.
During the course of a nuisance holder over proceeding Elle Petrincic Zonis (Zonis ) filed a complaint with the New York State Division of Human Rights (the Respondent ) that she had been discriminated against by Stuyvesant Owners Inc, the cooperative board/ landlord of her building (the Petitioner ) because of her physical and mental disabilities. The Respondent undertook an investigation of the complaint.
The Petitioner argues that the Respondent should be compelled to dismiss the complaint because the Respondent has failed to comply with the time requirements set forth in Executive Law § 297(2). Executive Law § 297(2) provides that the Respondent shall make a determination as to whether it has jurisdiction and whether there is probable cause to believe the named respondent has engaged in unlawful discriminatory practices within one hundred days of the filing of the complaint.
The relief requested in the Petition is mandamus, i.e the Petitioner seeks to have the Court compel the Respondent to dismiss the complaint of Ms. Zonis. It is well settled that mandamus is an extraordinary remedy which is only available compel a ministerial act and where there is a clear legal right to the relief. It is generally not available for interlocutory relief when the final determination is subject to review. Legal Aid Society of Sullivan County, Inc. v. Scheinman , 53 NY2d 12, 422 N.E.2d 542, 439 N.Y.S.2d 882 [1981]. It is not available when the agency action is discretionary. DeKom v. New York Department of Financial Services , 110 AD3d 527, 973 N.Y.S.2d 163, 2013 NY Slip Op. 06790 [1st Dept. 2013] ; Patel, M.D. v. Shah , 115 AD3d 559, 982 N.Y.S.2d 117, 2014 NY Slip Op. 01824 [1st. Dept. 2014].
The Petition does not set forth a clear right to the relief sought. It is well settled that the time frames contained in Executive Law § 297(2) are "directory only, noncompliance with which being insufficient to terminate the agency's jurisdiction absent a showing of substantial prejudice". In the Matter of Louis Harris and Associates, Inc. v. deLEON , 84 NY2d 698, 646 N.E.2d 438, 622 N.Y.S.2d 217, 6 NDLR P 225 (1994). (In the Harris case a seven year delay was found not prejudicial.) The failure to timely process discrimination complaint was not fatal to complaint, absent prejudice from delay. Tiffany & Co. v. Smith, (1 Dept. 1996) 224 AD2d 332, 638 N.Y.S.2d 454, leave to appeal denied 88 NY2d 806, 646 N.Y.S.2d 985, 670 N.E.2d 226.
Inasmuch as on May 7, 2018, the Respondent issued its final determination finding discrimination, the Petition seeking mandamus relief is now moot.
Accordingly, the Petition is denied and dismissed.