James v. Coughlin
| Decision Date | 17 November 1986 |
| Citation | 124 A.D.2d 728,508 N.Y.S.2d 231 |
| Parties | In the Matter of David W. JAMES, Appellant, v. Thomas A. COUGHLIN, III, etc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Goodstein & West, New Rochelle (Robert David Goodstein, of counsel), for appellant.
Robert Abrams, Atty. Gen., New York City (Ellen Fried and Judith Kramer, of counsel), for respondents.
Before THOMPSON, J.P., and BRACKEN, EIBER and SPATT, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated June 22, 1984, which terminated the petitioner's employment, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Sullivan, J.), entered April 29, 1985, which granted the respondents' motion to dismiss the petition.
ORDERED that the judgment is affirmed, without costs or disbursements.
The petitioner David James, a black person, was a probationary corrections officer at the Downstate Correctional Facility when his employment was terminated by the respondents early in 1983. James filed a discrimination complaint with the New York State Division of Human Rights (hereinafter the Division) and as a result a conciliation agreement was entered into between the parties pursuant to which James was reinstated on July 7, 1983, with a "full, new 12 month Probationary Evaluation Period". James was formally evaluated twice after his reinstatement and was notified in June 1984 that his probationary services were being terminated at the end of the month.
On July 31, 1984 James filed a complaint with the Division alleging, inter alia, that his termination was motivated by race, color and in retaliation for his filing of the previous complaint. On August 7, 1984, James commenced this CPLR article 78 proceeding in the Supreme Court against the respondents seeking reinstatement to his position. The allegations in the petition are virtually identical with those in the Division complaint, alleging additionally that the respondents' decision to discharge the petitioner was arbitrary, capricious and an abuse of discretion. The respondents moved to dismiss the petition, inter alia, on the ground that the petitioner was precluded from maintaining the proceeding by the election of remedies provision in Executive Law § 297(9). Special Term's judgment granting the motion and dismissing the petition is the subject of this appeal.
Special Term properly dismissed the petition. Executive Law § 297(9) grants to a person claiming to be aggrieved by an unlawful discriminatory practice the right to sue therefor unless he shall have filed a complaint with the Division. The filing of a complaint with the Division precludes the commencement...
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