Town of Oyster Bay v. Kirkland

• Decision Date: 15 February 2011
• Citation: 81 A.D.3d 812,917 N.Y.S.2d 236
• Parties: TOWN OF OYSTER BAY, appellant, v. Galen D. KIRKLAND, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 236

81 A.D.3d 812

TOWN OF OYSTER BAY, appellant,

v.Galen D. KIRKLAND, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 15, 2011.

Giaimo Associates, LLP, Kew Gardens, N.Y. (Joseph O. Giaimo of counsel), for appellant.

Caroline J. Downey, Bronx, N.Y. (Michael K. Swirsky of counsel), for respondents.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

In an action, inter alia, to permanently enjoin the defendants from proceeding with an administrative complaint against the plaintiff alleging violations of the Human Rights Law, and for a judgment declaring that the defendant New York State Division of Human Rights acted outside its authority in initiating the administrative complaint on its own and that Executive Law § 295(6)(a) and (b) are collectively unconstitutional, the plaintiff appeals (1) from a judgment of the Supreme Court, Nassau County (Warshawsky, J.), dated October 27, 2009, which, upon an order of the same court entered October 2, 2009, denying its motion for a preliminary injunction, granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the second, fifth, and sixth causes of action of the amended complaint, and, upon, in effect, converting those branches of the defendants' motion which were to dismiss the first, third, and fourth causes of action of the amended complaint into a motion for summary judgment dismissing those causes of action, and upon granting that motion, dismissed the amended complaint, and (2), as limited by its brief, from so much of an order of the same court, entered February 23, 2010, as, upon reargument, adhered to the original determination.

ORDERED that the judgment is modified, on the law, by adding thereto provisions declaring that the New York State Division of Human Rights acted within its authority in initiating the administrative complaint on its own and that Executive Law § 295(6)(a) and (b) are not collectively unconstitutional; as so modified, the judgment is affirmed; and it is further,

ORDERED that the order dated February 9, 2010, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

In 1993, the Town Board of the plaintiff, Town of Oyster Bay, amended the Town Zoning Code to create a new zoning district for building below-market rate senior communities, called the "Golden Age District." Preferences for units were to be given to senior citizen residents of the school district in which a developmentwas located, and, inter alia, to senior citizen residents of the Town and Nassau County. In 2004, the Town created another zoning district for the development of below-market, price-controlled housing for first time homebuyers, called "Next Generation" housing, the expressed purpose of which was to provide first-time homebuying opportunities with preference for residents of the Town and their children, with the objective of encouraging such persons to remain in the Town and eventually make the transition into detached single-family homes.

On January 29, 2009, the defendant New York State Division of Human Rights (hereinafter DHR) initiated an administrative complaint (hereinafter the DHR complaint) against the Town and other parties connected to developments constructed under the housing programs, charging them with unlawful discriminatory practices in housing on the basis of race, color, and national origin, in violation of the Human Rights Law (Executive Law art. 15). The DHR complaint alleged that, because of existing racial segregation in the Town, preserving housing for the children and parents of current residents would likely result in discrimination against potentialminority purchasers and unlawfully perpetuates segregation and separation. The DHR complaint alleged that by, among other things, adopting and administering the housing programs with the required residency preferences and accompanying restrictive covenants, the Town is aiding and abetting discrimination in the provision of housing accommodations in violation of Executive Law § 296(6). The DHR complaint sought elimination of the residency preferences, among other relief.

After receiving notice of the administrative charges against it, and prior to the completion of DHR's investigation, probable cause determination, or any hearing and final determination, the Town commenced the instant action against DHR and its Commissioner, seeking a judgment declaring, among other things, that DHR acted outside its authority in initiating the DHR complaint on its own, and to permanently enjoin DHR from pursuing the DHR complaint and proceeding with its investigation. The Town moved for preliminary injunctive relief, and DHR moved to dismiss the amended complaint for failure to state a cause of action. The Supreme Court denied the Town's motion and granted DHR's motion, holding that the Town was required to exhaust its administrative remedies and further dismissing certain claims on the merits. Judgment was entered dismissing the amended complaint. The Town then moved for leave to reargue. The Supreme Court granted reargument, but adhered to its original determination. The Town appeals.

Generally, "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" ( Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560; see Matter of Perretta v. Mulvey, 77 A.D.3d 758, 908 N.Y.S.2d 601; Matter of Mirenberg v. Lynbrook Union Free School Dist. Bd. of Educ., 63 A.D.3d 943, 881 N.Y.S.2d 159; Matter of Laureiro v. New York City Dept. of Consumer Affairs, 41 A.D.3d 717, 719, 837 N.Y.S.2d 746). " '[A]bsent extraordinary circumstances, courts are constrained not to interject themselves into ongoing administrative proceedings until final resolution of those proceedings before the agency' " ( Matter of Tahmisyan v. Stony Brook Univ., 74 A.D.3d 829, 830-831, 902 N.Y.S.2d 617, quoting Galin v. Chassin, 217 A.D.2d 446, 447, 629 N.Y.S.2d 247). The doctrine of exhaustion of administrative remedies applies to actions for declaratory judgments ( see Slater v. Gallman, 38 N.Y.2d 1, 3-4, 377 N.Y.S.2d 448, 339 N.E.2d 863). However, there are exceptions to the exhaustion doctrine applicable where the agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or where resort to administrative remedies would be futile or would cause irreparable injury ( see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d at 57, 412 N.Y.S.2d 821, 385 N.E.2d 560; Matter of Pitts v. City of N.Y. Off. of Comptroller, 76 A.D.3d 633, 633-634, 906 N.Y.S.2d 337; Matter of Laureiro v. New York City Dept. of Consumer Affairs, 41 A.D.3d at 719, 837 N.Y.S.2d 746; Matter of Hakeem v. Wong, 223 A.D.2d 765, 636 N.Y.S.2d 440).

Applying these principles to the matter at bar, the Supreme Court properly granted those branches of DHR's motion which were to dismiss the second, fifth, and sixth causes of action, as they do not fall within these exceptions ( see Matter of Laureiro v. New York City Dept. of Consumer Affairs, 41 A.D.3d at 717, 837 N.Y.S.2d 746; Matter of Grande v. Nassau County, 275 A.D.2d 457, 712 N.Y.S.2d 894). The second cause of action sought a declarationthat the Town is not a proper respondent and is not subject to the provisions of the Human Rights Law it was charged with violating in the DHR complaint. This request goes to the merits of any future finding that the Town's action violated the charged provisions, and does not implicate DHR's broad jurisdiction to determine discriminatory practices in the first instance ( see Executive Law §§ 295, 290; Matter of Holland v. Edwards, 282 App.Div. 353, 358, 122 N.Y.S.2d 721 ,affd. 307 N.Y. 38, 119 N.E.2d 581). Accordingly, that cause of action was properly dismissed for the Town's failure to exhaust administrative remedies ( see Matter of Pitts v. City of N.Y. Off. of Comptroller, 76 A.D.3d at 633-634, 906 N.Y.S.2d 337; Matter of Christa Constr., LLC v. Smith, 63 A.D.3d 1331, 880 N.Y.S.2d 786).

The sixth cause of action sought a declaration that the DHR complaint is void because it constitutes reverse discriminationagainst the residents of the Town. Constitutional challenges may be maintained without exhausting administrative remedies ( see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d at 57, 412 N.Y.S.2d 821, 385 N.E.2d 560; Matter of Emery v. Le Fevre, 97 A.D.2d 931, 932, 470 N.Y.S.2d 772). However, "[a] constitutional claim that may require the resolution of factual issues reviewable at the administrative level should initially be addressed to the administrative agency having responsibility so that the necessary factual record can be established" ( Matter of Schulz v. State of New York, 86 N.Y.2d 225, 232, 630 N.Y.S.2d 978, 654 N.E.2d 1226, cert. denied 516 U.S. 944, 116 S.Ct. 382, 133 L.Ed.2d 305; see Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 375, 372 N.Y.S.2d 633, 334 N.E.2d 586; Matter of Roberts v. Coughlin, 165 A.D.2d 964, 966, 561 N.Y.S.2d 852). " 'Further, the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief' " ( Matter of Tasadfoy v. Town of Wappinger, 22 A.D.3d 592, 592, 802 N.Y.S.2d 219, quoting Matter of Dozier v. New York City, 130 A.D.2d 128, 135, 519 N.Y.S.2d 135;...