Claim alleging statutory unlawful discrimination cause of action is dismissed for failure to state a cause of action where claimant elected administrative remedy provided by New York State Human Rights Law and is consequently barred by Executive Law 297 (9) from bringing suit in the Court of Claims.
|Claimant short name:||ADENIJI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the proper defendant.|
|Motion number(s):||M-92350, M-92487|
|Judge:||FRANK P. MILANO|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Anthony Rotondi, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 6, 2018|
|See also (multicaptioned case)|
Defendant moves twice, in lieu of answering, to dismiss this unlawful discrimination claim on the grounds that the claim fails to state a cause of action (CPLR 3211 [a] ) and because the Court lacks subject matter jurisdiction over the claim (CPLR 3211 [a] ). Claimant has not appeared in opposition to the defendant's motions to dismiss.
On July 6, 2017, claimant filed a complaint with the New York State Division of Human Rights (DHR) alleging that the New York State Office of the Comptroller engaged in an unlawful discriminatory practice against claimant relating to employment based upon claimant's age and race.
The DHR complaint was investigated and dismissed for "NO PROBABLE CAUSE" on December 19, 2017.
Claimant thereafter commenced this action in the Court of Claims by filing the claim with the Clerk of the Court of Claims on February 16, 2018 and serving an unverified copy of the claim on the Attorney General on May 23, 2018 (May 23 Claim).
Defendant moved to dismiss the May 23 Claim, in lieu of answering, on June 4, 2018 (M-92350). After claimant served an identical, though verified, claim on May 31, 2018 (May 31 Claim) on defendant, a second motion to dismiss was made by defendant on June 29, 2018 (M-92487). Both the May 23 Claim and the May 31 Claim are referred to herein as the claim.
The claim is based upon the very same allegations against the New York State Office of the Comptroller as were dismissed by DHR on December 19, 2017.
The claim fails to state a cause of action for unlawful discrimination pursuant to Executive Law 297 (9) and is barred by the election of remedies doctrine because claimant elected to pursue any remedy he may have had by filing a complaint with DHR.
Executive Law 297 (9) provides, in pertinent part:
"Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages, including, in cases of housing discrimination only, punitive damages, and such other remedies as may be appropriate, including any civil fines and penalties provided in subdivision four of this section, unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter, provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. At any time prior to a hearing before a hearing examiner, a person who has a complaint pending at the division may request that the division dismiss the complaint and annul his or her election of remedies so that the human rights law claim may be pursued in court, and the division may, upon such request, dismiss the complaint on the grounds that such person's election of an administrative remedy is annulled."
Defendant has established that claimant filed a complaint with DHR prior to serving and filing the claim, that the complaint was dismissed for lack of probable cause following an investigation, and that the present claim alleges essentially the same facts.
The claim fails to state a cause of action. Unlawful discrimination is a "statutory cause of action not previously cognizable at common law" (Thoreson v Penthouse Intl., 80 NY2d 490, 496 ). The statute provides that an unlawful discrimination cause of action may be brought "in any court of appropriate jurisdiction for damages . . . unless [claimant] had filed a complaint hereunder." As set forth above, claimant filed a complaint with DHR prior to serving and filing his claim in the Court of Claims. The claimant's cause of action is barred by the express terms of the statute, Executive Law 297 (9), which created the cause of action.
Defendant cites Emil v Dewey (49 NY2d 968 ), in which the Court of Appeals affirmed a lower court order dismissing an action that was commenced after the plaintiff had filed a complaint with DHR. Emil held (49 NY2d at 969) that Executive Law 297 (9) precluded plaintiff from bringing a court action based upon the same incident which was the basis of the DHR complaint.
Rodriguez v Dickard Widder Indus. (150 AD3d 1169, 1170-1171 [2d Dept 2017]), further instructs that:
"The election of remedies doctrine [does] not implicate the subject matter jurisdiction of the court, but rather deprive[s] a plaintiff of a cause of action."
Finally, defendant correctly points out that even if the claim, which accrued on or about October 6, 2016, stated a statutory cause of action for unlawful discrimination, it was served beyond the ninety day jurisdictional time period set forth in Court of Claims Act 10 (3) and is subject to dismissal on that basis as well (see Brown v State of New York, 125 AD2d 750, 751 [3d Dept 1986], appeal dismissed 70 NY2d 747 ; Figueroa v State of New York, 126 Misc 2d 304 [Ct Cl 1984).
The defendant's motions to dismiss the claim for failure to state a cause of action are granted. The claim is dismissed.
September 6, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss (M-92350), filed June 4, 2018;
2. Affirmation of Anthony Rotondi, dated June 4, 2018, and attached exhibits;
3. Defendant's Notice of Motion to Dismiss (M-92487), filed June 29, 2018;
4. Affirmation of Anthony Rotondi, dated June 29, 2018, and attached exhibit;
5. Letter of Anthony Rotondi, dated July 25, 2018.