In the Matter of the Application of Roy Den Hollander, Petitioner,
The City of New York Commission on Human Rights, Respondent Index No. 100299/2013
ALEXANDER W. HUNTER, JR. Judge
Two separate applications, an Article 78 petition and a motion to dismiss, were filed in this matter under motion sequences #1 and #2. Both applications will be decided herein.
Petitioner's application for an order pursuant to CPLR Article 78, reversing the Final Determination and Order, dated January 11, 2013, of the City of New York Commission on Human Rights, and finding that petitioner was unlawfully discriminated against because of his age by Amnesia J.V. LLC, and David L.N.U., is denied and the proceeding is dismissed without costs and disbursements to either party. Respondent's motion to dismiss the petition is granted.
On or about January 10, 2010, petitioner filed a verified complaint with the New York State Division of Human Rights (the "Division") charging Amnesia J.V. LLC ("Amnesia"), a night club, with an unlawful discriminatory practice relating to public accommodations because of sex in violation of Article 15, Executive Law (the "Human Rights Law"). Petitioner alleged that on January 9, 2010, petitioner and a male friend stood on a line in front of Amnesia but was refused admittance by doorman David Last Name Unknown ("L.N.U."), unless petitioner and his friend agreed to purchase a $350 bottle of alcohol. Petitioner and his friend declined, stepped out of the line, and subsequently observed women entering the night club without having to purchase a $350 bottle of alcohol.
On September 16, 2010, the Division issued a Determination and Order After Investigation, dismissing petitioner's complaint and ordering the file closed for lack of probable cause. The Division investigated petitioner's complaint and noted in dicta that petitioner "is significantly older than [Amnesia's] patrons, and age discrimination is beyond the jurisdiction of the Division with regards to public accommodation."
On October 22, 2010, petitioner filed a verified complaint with respondent the City of New York Commission on Human Rights (the "Commission") charging that Amnesia discriminated against him based upon his age. On July 27, 2012, respondent issued a Determination and Order After Investigation, dismissing petitioner's complaint concluding that (1) respondent was statutorily barred from considering petitioner's discrimination claim because he had previously filed a discrimination complaint with the Division based on the same incident and (2) probable cause did not exist to infer that Amnesia had engaged in age discrimination (the "July 27, 2012 Administrative Closure").
On August 17, 2012, petitioner appealed the July 27, 2012 Administrative Closure whereby petitioner raised various legal and factual objections. On January 11, 2013, respondent issued a Final Determination and Order After Review upholding its July 27, 2012 Administrative Closure (the "January 11, 2013 Final Determination").
On February 8, 2013, petitioner commenced the instant special proceeding, seeking an order reversing the January 11, 2013 Final Determination of respondent, and finding that petitioner was unlawfully discriminated against because of his age by Amnesia and David L.N.U. Petitioner avers that (1) respondent's finding of no probable cause was not based on the evidence as a whole or substantial evidence; (2) respondent's July 27, 2013 Administrative Closure relied on misrepresentations in finding no probable cause; and (3) respondent conducted an abbreviated and one-sided investigation. On March 1, 2013, petitioner filed a verified supplement to his petition to add a Fourteenth Amendment procedural due process claim against respondent.
In opposition, respondent moves to dismiss, as petitioner's claims are barred under New York City Administrative Code ("Admin. Code") §8-109(f)(iii) and Executive Law ("Exec. Law") §297(9). Respondent avers that petitioner is prohibited from bringing successive discrimination complaints based upon the same incident.
A court may not disturb an administrative decision unless the agency's action was arbitrary and capricious, was in violation of lawful procedures, or was made in excess of its jurisdiction.
See CPLR 7803(3); Pell v. Board of Education of Union Free School District
No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34
N.Y.2d 222 (1974). The Commission's no probable cause determinations will not be overturned unless they are arbitrary or capricious, or lack a rational basis. See Matter of Soo Ching Wu v. New York City Commn.
on Human Rights, 84 A.D.3d 823 (2nd Dept. 2011).
New York City's Human Rights Law (the "City Human Rights Law") contains an election of remedies provision that requires a petitioner to choose between an administrative remedy and a judicial one. "[A]ny person claiming to be aggrieved by an unlawful discriminatory practice... shall have a cause of action in any court of competent jurisdiction.. .unless such person has filed a complaint with the city commission on human rights or with the state division of human rights...." Admin. Code §8-502(a). Moreover, the City Human Rights Law does not have jurisdiction to entertain a complaint if there was a previous dismissal by either a court of competent jurisdiction or the Division "with respect to the same grievance which is the subject of the complaint." Admin. Code. §8-109(f).
Similarly, the Human Rights Law provides for an election of remedies. See Exec. Law §297(9). Exceptions to the election of remedies bar applies when the complaint was dismissed on the grounds of (1) administrative convenience; (2) untimeliness; or (3) annulment of the election of remedies.
Controlling case law construes the doctrine of election of remedies to preclude subsequent complaints based on the same alleged incident, same underlying course of conduct, or same operative events. See Emil v. Dewey, 49 N.Y.2d 968 (1980); Benjamin v. New York City Dept. of Health. 57 A.D.3d 403 (1st Dept. 2008); Higgins v. NYP Holdings, Inc.,836 F.Supp.2d 182 (S.D.N.Y. 2011). "The facts need not be perfectly identical, and merely adding some additional facts and/or re-labeling the claim will not prevent the application of the doctrine of election of remedies." Benjamin v. New York City Dept. of Health, 17 Misc.3d 1122(A) (NY Sup Ct 2007), citing Bhagalia
v. State of New York,228 A.D.2d 882 (3rd Dept. 1996). Petitioner's age discrimination claim "constitutes the same cause of action as the formerly litigated [gender] claim, " as it arose out of the same transaction or occurrence from January 9, 2010. Troy v. Goord,300 A.D.2d 1086, 1087 (4th Dept. 2002); see also Smith v. Russell Sage
Coll.,54 N.Y.2d 185, 192-194 (1981); Tsabbar v. ...