State Division of Human Rights on Complaint of Anderson v. Sears, Roebuck & Co.

• Decision Date: 13 August 1979
• Citation: 71 A.D.2d 885,419 N.Y.S.2d 642
• Court: New York Supreme Court — Appellate Division
• Parties: STATE DIVISION OF HUMAN RIGHTS, ON the COMPLAINT OF Robert R. ANDERSON, Petitioner, v. SEARS, ROEBUCK & COMPANY et al., Respondents.

Page 642

419 N.Y.S.2d 642

71 A.D.2d 885

STATE DIVISION OF HUMAN RIGHTS, ON the COMPLAINT OF Robert

R. ANDERSON, Petitioner, v. SEARS, ROEBUCK & COMPANY et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Aug. 13, 1979.

Ann Thacher Anderson, New York City (Elaine R. Berger, New York City, of counsel), for petitioner.

Epstein, Becker, Borsody & Green, New York City (Ronald M. Green, New York City, of counsel), for respondents.

Before LAZER, J. P., and RABIN, GULOTTA and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to section 298 of the Executive Law to enforce an order of the State Human Rights Appeal Board, dated September 6, 1978, which affirmed a decision and order of the State Division of Human Rights, dated December 1, 1977, which, after a hearing, Inter alia, found that Sears, Roebuck and Company had discriminated against one of its employees on the basis of sex. Respondents have cross-applied, Inter alia, to annul the order.

Petition granted and cross application dismissed, without costs or disbursements, and respondents are directed to comply with the order.

Under the circumstances of this case, in which the determination of jurisdiction and probable cause was made, the notice of hearing issued and served, and the hearing commenced long before the August, 1977 amendment of the time limitations of section 297 of the Executive Law, it is our view that the pre-amendment limitations must apply, despite the fact that the Commissioner's determination was not rendered until after the effective date of the amendment (cf. McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 55, pp. 116-118).

It is well settled that the pre-amendment time limitations were directory only (see Union Free School Dist. No. 6 of Towns of Islip and Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859). Inasmuch as the record does not show that respondents were substantially prejudiced, the failure of the State Division to comply with these directory provisions did not serve to oust that body of its jurisdiction under the Human Rights Law (see Union Free School Dist. No. 6 v. New York State Human Rights Appeal Bd., supra ).

Although respondents failed to commence a timely proceeding to review the order of the Appeal Board (see Executive Law, § 298), we have reviewed the merits of that order in the instant enforcement proceeding (see Matter of State Div. of Human Rights v. Bystricky, 30...