expressed no view as to how its ruling might affect a "federal
court's decision to exercise pendent jurisdiction over a Human
Rights Law claim." Scott v. Carter-Wallace, Inc., 147 A.D.2d at
38, 541 N.Y.S.2d at 783. It did, however, raise the possibility
that a federal litigant might "simply be relegated to the State
Division for redress of his Human Rights Law claim." Id.
In short, the ability of a federal court to exercise pendent
jurisdiction over a state claim of discrimination that has been
the subject of an EEOC referral to the Division of Human Rights
remains a complex and unresolved question.
The question in this case is, however, somewhat narrower.
Plaintiff's complaint was dismissed by the Division of Human
Rights on grounds of administrative convenience. All parties in
this action agree that § 297(9) does permit a party who has
filed a complaint with the Division of Human Rights to
institute court proceedings where the Division dismisses the
complaint for administrative convenience. Defendants argue,
however, that the exception is not applicable to this case
because the dismissal, having been suggested by the plaintiff,
was improperly granted.
The New York Court of Appeals has, in fact, only recently
reversed an administrative convenience dismissal specifically
sought by a plaintiff. Marine Midland Bank, N.A. v. New York
State Div. of Human Rights, 75 N.Y.2d 240, 552 N.Y.S.2d 65,
551 N.E.2d 558 (1989). In that case, when Marine Midland answered
an administrative complaint by noting its untimely filing, the
complainant obtained an administrative convenience dismissal to
permit him to file a court action, which was governed by a
longer limitation period. The Court of Appeals found such a
dismissal to be "purely arbitrary" and reversed, noting that
"[t]o permit the Division to dismiss time-barred complaints on
the ground of administrative convenience, thereby paving the
way for subsequent judicial review, would render meaningless
the one-year time limitation of Executive Law § 297(5) and the
election of remedies requirement of Executive Law § 297(9)."
Id., 75 N.Y.2d at 246, 552 N.Y.S.2d at 67, 551 N.E.2d at 560.
This case is distinguishable from Marine Midland on several
levels. First, and most importantly, that case involved a
direct challenge in state court, pursuant to N.Y. Exec. L. §
298, to the Division's dismissal. This court is simply not
empowered to sit in appellate review of Division orders and to
reverse dismissals made for reasons of administrative
convenience. See generally Rooker v. Fidelity Trust Co.,
263 U.S. 413, 416, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); District
of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482, 103
S.Ct. 1303, 1315, 75 L.Ed.2d 206 (1983); Giuntoli v. Garvin
Guybutler Corp., 726 F. Supp. at 504. Defendant Dean Witter has
not sought § 298 review of the Division's decision in this
case.*fn1 When no appeal is taken from a Division order, there
can be "no question as to the correctness or validity of the
commission's determination." See State Div. of Human Rights v.
Employers-Commercial Union Ins. Group, 33 A.D.2d 273, 274, 307
N YS.2d 232, 233 (1st Dep't 1970). Accordingly, this court
must assume that the Division's decision to dismiss Martel's
complaint on grounds of administrative convenience was correct
and, pursuant to the express terms of § 297(9), permit
plaintiff to pursue his state claim in this action.
The court further notes that this is, in any event, not a
case in which plaintiff's administrative complaint was untimely
filed, a factor critical to the Marine Midland decision.
Therein it could fairly be said that the complainant had, in
the first instance, in fact elected to proceed
administratively, but had second thoughts upon realizing that
he had failed to file within the limitations period. Only when
confronted with a likely dismissal of his administrative
proceeding did he decide to pursue a court action.
In this case, it is undisputed that plaintiff never sought to
have his claim resolved by the State Division of Human Rights.
He filed initially with the EEOC simply to comply with federal
statutory prerequisites for bringing a court action. The EEOC,
pursuant to its own internal policies, referred the matter to
the State Division. Where a federal court action is pending
that will resolve all issues concerning the alleged
discrimination, at least one New York court has found it
appropriate for the State Division to conclude that its own
duplicative consideration of the complaint would not advance
human rights goals. Eastman Chem. Prods., Inc. v. New York
State Div. of Human Rights, N.Y.L.J., November 30, 1989, at 23,
col. 2; see 9 N.Y.C.R.R. 465.5(d)(2)(v) (1985). This holding
was followed in Giuntoli v. Garvin Guybutler Corp., 726 F. Supp.
The rationale of Eastman Chemical Products is persuasive. The
State Division was not, after all, considering whether to allow
a complainant who initially proceeded administratively
thereafter to commence a state court action, conduct that would
clearly have undermined the interest in efficient allocation of
limited resources that underlies New York's election of
remedies policy. See Marine Midland Bank v. New York State Div.
of Human Rights, supra; Scott v. Carter-Wallace, 147 A.D.2d at
39, 541 N.Y.S.2d at 783. Rather, the State Division was
confronted with the reality of an extant federal action that
would be fully addressing the discrimination claim regardless
of whether the state administrative proceeding continued or
not. Under such circumstances, the Division could fairly find
that little was to be gained from its own independent
consideration of this claim as opposed to others pending before
Confronted with an unappealed dismissal of plaintiff's
complaint before the State Division on grounds of
administrative convenience, and persuaded that such a dismissal
would, in any event, be appropriate on facts such as those here
presented, the court declines to dismiss the pendent state
claim pursuant to N.Y.Exec.L. § 297(9) (McKinney 1982).
Dean Witter further urges dismissal of the pendent claim
because of the risk of jury confusion in considering a federal
claim that does not permit an award of money damages for pain
and suffering together with a state claim that does. The court
is unpersuaded. See Tasaka v. DDB Needham Worldwide, Inc.,
supra (declining to dismiss state Human Rights claim pendent to
ADEA claim). The federal and state claims here at issue involve
"parallel issues," both of fact and law. Indeed, the same
policies are advanced by the two claims. See Miller v. Lovett,
879 F.2d 1066, 1071 (2d Cir.1989) (and cases cited therein).
Under such circumstances, efficiency, economy and even fairness
are best served by a single adjudication of the dispute. Id.
Such potential confusion regarding damages as defendant
anticipates will be dealt with through the use of specific
interrogatories in a form of special verdict. Id. at 1073.
Defendant's motion to dismiss plaintiff's pendent claim of
discrimination in violation of New York's Human Rights Law is