Tessy Plastics Corp. v. State Div. of Human Rights

• Decision Date: 14 April 1978
• Citation: 403 N.Y.S.2d 946,62 A.D.2d 36
• Parties: , 34 Fair Empl.Prac.Cas. (BNA) 899 Application of TESSY PLASTICS CORPORATION, Respondent, v. STATE DIVISION OF HUMAN RIGHTS (complaint of Nancy Smith), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 946

403 N.Y.S.2d 946

62 A.D.2d 36, 34 Fair Empl.Prac.Cas. (BNA) 899

Application of TESSY PLASTICS CORPORATION, Respondent, v. STATE DIVISION OF HUMAN RIGHTS (complaint of Nancy Smith), Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 14, 1978.

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

Roger Scott, Camillus, for respondent (Kenneth Bobrycki, Camillus, of counsel).

Before MOULE, J. P., and CARDAMONE, SIMONS, DILLON and HANCOCK, JJ.

SIMONS, Justice:

On April 5, 1976 Nancy Smith filed a complaint with the State Division of Human Rights alleging that petitioner had unlawfully discriminated against her in her employment because of her age and her sex. Petitioner was notified of the complaint the next day. The Division investigated the charges and on November 26, 1976 it notified petitioner that the age discrimination charge had been withdrawn but that it found probable cause existed for the sex discrimination complaint. A conciliation agreement was proposed and when petitioner rejected this proposal on December 8, 1976, the Division recommended a public hearing and advised petitioner that it would notify it of further proceedings.

On January 26, 1977 petitioner brought this Article 78 proceeding seeking a writ of prohibition alleging that the Division's unreasonable delay divested the Division of jurisdiction because petitioner had been prejudiced as a matter of fact and as a matter of law (see State Div. of Human Rights v. Board of Educ. of West Val. Cent. School Dist., 53 A.D.2d 1043, 386 N.Y.S.2d 166, affd. 42 N.Y.2d 862, 397 N.Y.S.2d 791, 366 N.E.2d 878). As a result of a mix-up in transmitting the motion papers from the Syracuse office to its legal department in New York City, the Division defaulted on the return date, February 8, 1977 and an order of prohibition was entered March 2, 1977. The Division moved promptly to vacate the default but its motion was denied. It is the order denying that motion which is before us on this appeal.

The order should be reversed because prohibition was improperly granted and because there was no impermissible delay. Inasmuch as appellant had a meritorious defense and it moved promptly to vacate the judgment, its default should be, excused in the interest of justice so that complainant may be permitted to pursue her charge of unlawful discrimination (see Kahn v. Stamp, 52 A.D.2d 748, 749, 382 N.Y.S.2d 199, 200).

Judicial review of proceedings of the Division of Human Rights by way of a motion for prohibition should not have been entertained by Special Term before petitioner had exhausted its administrative remedies (see Matter of Russell Sage Coll. v. State Div. of Human Rights, 45 A.D.2d 153, 357 N.Y.S.2d 171, affd. 36 N.Y.2d 985, 374 N.Y.S.2d 603, 337 N.E.2d 119; Matter of Board of Educ. of Syracuse City School Dist. v. State Div. of Human Rights, 38 A.D.2d 245, 328 N.Y.S.2d 732, affd. 33 N.Y.2d 946, 353 N.Y.S.2d 730, 309 N.E.2d 130; Matter of Liverpool Cent. School Dist. v. State Div. of Human Rights, 46 A.D.2d 1004, 361 N.Y.S.2d 787). As we said in Matter of Richards v. Mangum (35 A.D.2d 124, 125-126, 314 N.Y.S.2d 512, 513-514):

"The statute (Executive Law, art. 15) envisions an administrative proceeding before the Division. A party dissatisfied with the determination of the Commissioner may appeal to the State Human Rights Appeal Board (Executive Law, § 297-a, subd. 6, par. c). Judicial review is available only from an order of the Appeal Board (Executive Law, § 298).

"This procedure is consistent with the policy of requiring exhaustion of administrative remedies before resort to judicial review. The dual functions of this requirement are to conserve judicial resources and to protect the integrity of administrative hearings, determinations and appeals (2 Cooper, State Administrative Law, pp. 562-565; Jaffe, Judicial Control of Administrative Action, p. 424)."

Upon the motion to vacate appellant did not contend that the order of prohibition was improper prior to the completion of the administrative process, but the error is obvious from an examination of the record and we may consider it on appeal for, the first time (see Salesian Soc. v. Village of Ellenville, 41 N.Y.2d 521, 523, 393 N.Y.S.2d 972, 974, 362 N.E.2d 604; Persky v. Bank of America, Nat. Assn., 261 N.Y. 212, 218, 185 N.E. 77, 79, see also Matter of Niagara Wheatfield Admin. Assn. v. Niagara Wheatfield Cent. School Dist., 44 N.Y.2d 68, --- N.Y.S.2d ---, --- N.E.2d ----).

Furthermore, in vacating the default, we observe that petitioner did not establish in his application for prohibition such prejudice resulting from delay as would warrant dismissal of the proceedings.

Pursuant to the provisions of Section 297 of the Executive Law, as it then existed, the Division was required to determine within 15 days of the complaint whether it had jurisdiction of the complaint and whether there was probable cause to believe that petitioner had engaged in an unlawful discriminatory practice. The Division did not make such a finding in this case for seven months. Additionally, the former statute required that within 60 days of the complaint the Division if it found probable cause, must issue a written notice of charges and hearing. Such notice was issued nine months after the complaint was filed in this case. The statute required that the public hearing be held not more than 15 days after the service of notice. No hearing was held because the petitioner's motion seeking prohibition preceded the hearing. Petitioner moved for prohibition approximately ten months after the complaint was filed.

The time limits set forth in section 297 of the Executive Law are directory and not mandatory (Union School District No. 6 v. New York State Human Rights Appeal Board, 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859; Matter of 121-129 Broadway Realty v. New York State Div. of Human Rights, 43 A.D.2d 754, 349 N.Y.S.2d 1003; Matter of Moskal v. State of New York Executive Dept., Div. of Human Rights, 36 A.D.2d 46, 319 N.Y.S.2d 358; see also Matter of Liverpool Cent. School Dist. v. State Div. of Human Rights, 46 A.D.2d 1004, 361 N.Y.S.2d 787). They were enacted for the benefit of the complainants, not those charged with violating the statute, and in the absence of substantial prejudice to the party charged, delay attributable solely to the administrative agency should not operate to foreclose relief to an innocent complainant who is not responsible for it. (Matter of Liverpool Cent. School Dist. v. State Div. of Human Rights, supra, p. 1005, 36 N.Y.S.2d 787.) We have departed from that rule in some recent decisions when the delay was egregious, holding that the party charged was prejudiced as a matter of law (see, e. g., State Div. of Human Rights v. Board of Educ. of West Val. Cent. School Dist., 53 A.D.2d 1043, 386 N.Y.S.2d 166, affd. 42 N.Y.2d 862, 397 N.Y.S.2d 791, 366 N.E.2d 878, supra; State Div. of Human Rights v. Gannett Co., App.Div., 402 N.Y.S.2d 889 decided March 1, 1978; State Div. of Human Rights v. Board of Educ. of School Dist. of City of Niagara Falls, 59 A.D.2d 1048, 399 N.Y.2d 805). Those cases, however, involved delays of several years, periods substantially greater than the delay present in this case. Notably we refused prohibition in Matter of Liverpool, a case presented in the same legal posture as this case, although the delay in Liverpool was more than twice that present here. Furthermore since our prior decisions, the Legislature has amended the requirements of section 297 (see L.1977, ch. 729) to provide that a finding of jurisdiction and probable cause should be made within six months of the complaint and a notice of hearing served within nine months of the complaint. The time periods here exceeded the legislative definition of reasonableness contained in the amended statute by only a few days and they should not be cause for a judicial determination that petitioner has suffered prejudice as a matter of law.

Nor does it appear from the record that petitioner has suffered actual substantial prejudice at this time which would warrant a court in exercising its equitable powers to terminate the Division's proceedings. The dissent alleges prejudice in fact because of the changeover in the employees of petitioner since the date of the alleged discriminatory acts. Petitioner has not alleged that these former employees are unavailable, however, and the Division, which bears the burden of proof, makes no complaint.

The order should be reversed, appellant's motion to vacate its default granted and the matter remitted to Special Term, Onondaga County for further proceedings in accordance with this opinion.

Order reversed without costs and motion granted.

CARDAMONE, DILLON and HANCOCK, JJ., concur.

MOULE, J....