Perez v. New York State Human Rights Appeal Bd.
| Decision Date | 06 December 1979 |
| Citation | 422 N.Y.S.2d 767,71 A.D.2d 150 |
| Parties | , 21 Empl. Prac. Dec. P 30,503 In the Matter of Edward P. PEREZ, Petitioner, v. NEW YORK STATE HUMAN RIGHTS APPEAL BOARD, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Arthur V. Graseck, Jr., Port Washington, for petitioner.
Robert Abrams, Atty. Gen. (Lawrence J. Logan and Shirley Adelson Siegel, Albany, of counsel), for Department of Mental Hygiene, respondent.
Before MAHONEY, P. J., and SWEENEY, KANE, STALEY and HERLIHY, JJ.
Petitioner was employed in a probationary position as a trainee at the Kings Park Psychiatric Center, which is under the jurisdiction of the Commissioner of Mental Health (Mental Hygiene Law, § 7.17). In June, 1977 the employer was informed that petitioner had previously been arrested and charged with the crime of criminal sale of a controlled substance in the fifth degree in violation of section 220.34 of the Penal Law. Petitioner was then requested to document the final disposition of this charge and he advised his employer that his arrest resulted in an adjudication as a youthful offender. His employment was subsequently terminated.
On a date not revealed in the record, petitioner instituted an article 78 proceeding, alleging that he was wrongfully discharged from his employment. That proceeding was decided against petitioner and his petition was dismissed. Petitioner also filed a complaint with the State Division of Human Rights, alleging an unlawful discriminatory practice. The complaint was dismissed on the ground that there was no probable cause to believe that respondents had engaged in an unlawful discriminatory practice. This determination was based on the conclusion that petitioner was not protected by the Human Rights Law, but rather, by CPL 720.35. The State Human Rights Appeal Board affirmed and the present proceeding was initiated, pursuant to section 298 of the Executive Law to review the board's determination.
Petitioner contends that the State Division of Human Rights does have jurisdiction, pursuant to subdivision 15 of section 296 of the Executive Law, which provides, in pertinent part, that it shall be an unlawful discriminatory practice to deny employment to an individual "by reason of his having been convicted of one or more criminal offenses" when such denial is in violation of the provisions of article 23-A of the Correction Law. In the enforcement provision of article 23-A, however, it is provided that in relation to actions by public agencies, the provisions of article 23-A shall be enforceable by a proceeding brought pursuant to CPLR article 78 (Correction Law, § 755, subd. 1). Consequently, the State Division of Human Rights was precluded from enforcing the provisions of article 23-A of the Correction Law under the present circumstances and petitioner's complaint was properly dismissed. Furthermore, we note that no person who has initiated any action in a court of competent jurisdiction based upon an act which would be an unlawful discriminatory practice under article 15 of the Executive Law may file a complaint with respect to the same grievance under section 297 of the Executive Law (Executive Law, § 297, subd. 9). In other words, a party has an election of remedies (State Div. of Human Rights v. Commissioner of N. Y. State Dept. of Civ. Serv., 57 A.D.2d 699, 395 N.Y.S.2d 774). Here the record is silent as to the date of the commencement of the article 78 proceeding and as to the basis of that proceeding. Thus, without additional proof, we are unable to determine whether the board was precluded from obtaining jurisdiction as a result of petitioner's commencement of an article 78 proceeding. In view of subdivision 1 of section 755 of the Correction Law, however, the board's determination must be confirmed and we need not remit the matter for the submission of additional proof.
The determination should be confirmed, and the petition dismissed, without costs.
Determination confirmed, and petition dismissed, without costs.
HERLIHY, J., concurs in a separate opinion.
The issue is not necessarily the inclusion or exclusion of youthful offenders from the class of convicts entitled to the benefits of the Human Rights Law.
It is apparent that subdivision 15 of section 296 was added to the Human Rights Law to provide a forum and/or mechanism for the Enforcement of the rights and privileges conferred on persons convicted of criminal offenses by ...
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