Lake Placid Club, Inc. v. Abrams

• Decision Date: 10 November 1958
• Citation: 179 N.Y.S.2d 487,6 A.D.2d 469
• Parties: Application of LAKE PLACID CLUB, INC., Petitioner-Respondent, for an order pursuant to Article 78 of the Civil Practice Act, v. Charles ABRAMS, individually and as Chairman of the New York State Commission against Discrimination, and Blanche I. Lubow, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 487

179 N.Y.S.2d 487

6 A.D.2d 469

Application of LAKE PLACID CLUB, INC. Petitioner-Respondent, for an order pursuant to Article 78 of the Civil Practice Act, v. Charles ABRAMS, individually and as Chairman of the New York State Commission against Discrimination, and Blanche I. Lubow, Respondents-Appellants.

Supreme Court, Appellate Division, Third Department.

Nov. 10, 1958.

Henry Spitz, and Solomon J. Heifetz, New York City, for respondent-appellant Charles Abrams, individually and as Chairman of New York State Commission against Discrimination.

Sol Rabkin, Paul Hartman, and Arnold Forster, New York City, for respondent-appellant Blanche I. Lubow, New York.

Morris, Dillon & MacHarg, Albany (Ernest B. Morris, Albany, of counsel), for petitioner-respondent.

Before FOSTER, P. J., and BERGAN, GIBSON, HERLIHY and REYNOLDS, JJ.

FOSTER, Presiding Justice.

By statute discrimination based on race, color, creed or national origin is forbidden in this State in places of public accommodation, resort or amusement. Private clubs are excepted from the ban of the statute (Executive Law, §§ 292, 296). A Commission has been set up to enforce the provisions of the statute and such Commission is empowered to establish its own rules of practice. This appeal brings up for determination the power of the Chairman of the Commission to waive strict compliance with one of the rules of the Commission relative to the reconsideration of a decision made by one Commissioner.

In May 1955 the Commission initiated an investigation of the admission policy of the petitioner Lake Placid Club, Inc., to determine whether it is a place of public accommodation within the purview of the statute, and assigned a Commissioner for that purpose. During the pendency of the proceeding the Anti-Defamation League of B'nai B'rith filed a complaint against petitioner on behalf of appellant Lubow charging petitioner with a discriminatory practice against her based on her creed. This complaint was also assigned to the same Commissioner and became part of the proceeding aforesaid. After an investigation such Commissioner found that petitioner was not a place of public accommodation, resort or amusement within the contemplation of the statute. While we do not reach the merits of that issue on this appeal it may be parenthetically observed that the controversy hinged upon the propositions that two entities were involved, the petitioner Lake Placid Club, Inc. and the Lake Placid Company; and upon the fact that conventions were entertained on the premises of the petitioner with the use of its facilities.

A copy of the decision of the Commissioner dismissing the complaint was mailed to appellant Lubow on July 18, 1957, but no copy was mailed to the B'nai B'rith although concededly it was the usual practice of the Commission to furnish a copy of its determination to organizations when they acted in behalf of complainants. On the day after the decision was mailed the term of office of the Commissioner who made the decision expired. On July 22, 1957 B'nai B'rith attempted to get a copy of the decision from the Commissioner but did not receive one. On July 25, B'nai B'rith wrote to the Chairman of the Commission complaining of its failure to get a copy of the decision and requested an extension of time within which to advise appellant Lubow whether to seek reconsideration. The Chairman was out of the country and apparently no one was authorized to act on his behalf during his absence. Upon August 21 he returned and a short time thereafter he determined that B'nai B'rith's letter requesting an extension of time was sufficient in form and substance to constitute an application for reconsideration. After receiving B'nai B'rith's memorandum on the subject he gave petitioner's counsel an opportunity to answer the same. No actual determination as to whether reconsideration should be had was made before petitioner instituted the proceeding under review, under Article 78 of the Civil Practice Act to prohibit further action on the part of the Chairman and the Commission. It was decided at Special Term that B'nai B'rith's letter of July 25 was not an application for reconsideration; that the time to file such an application expired on August 6 and that the Chairman had no authority to extend the time or waive the rule of the Commission with relation to reconsideration. From the order entered thereon appellants have appealed.

The rule in question, adopted by the Commission pursuant to its rulemaking power as provided by statute, is rule No. 4, and reads as follows:

'4. Reconsideration by the chairman.

'The complainant may apply to the chairman for reconsideration of the dismissal of his complaint or of the terms of conciliation, as the case may be. Such application must be in writing, state specifically the grounds upon which it is based and be filed within 15 days from the date of the mailing of the notice of disposition in the office of the Commission where the complaint was previously filed.

'If such application for reconsideration is made, the Chairman shall review the entire file, and may, in his discretion, hear the parties. The Chairman, in his discretion, shall grant or deny the application for...