Jonathan A. Tand, Garden City, NY, for petitioner.
& Ingber, LLP, Mineola, NY (Jeffrey Siler and Maria Nanis
of counsel), for respondent Elmont Hook and Ladder Company
Caroline J. Downey, Bronx, NY (Toni Ann Hollifield of
counsel), for respondent New York State Division of Human
Rights (no brief filed).
RANDALL T. ENG, P.J., REINALDO E. RIVERA, RUTH C. BALKIN,
BETSY BARROS, JJ.
DECISION & JUDGMENT
pursuant to Executive Law § 298 and CPLR article 78 to
review so much of a determination of the Commissioner of the
New York State Division of Human Rights dated January 16,
2015, as, after a hearing, adopted the findings of the
Adjudication Counsel of the New York State Division of Human
Rights dated November 25, 2014, that the petitioner's
hostile work environment claim based on allegations of sexual
harassment was time-barred pursuant to Executive Law §
297(5), and dismissed the administrative complaints.
that the determination is confirmed, the petition is denied,
and the proceeding is dismissed on the merits, with costs to
the Elmont Hook and Ladder Company No. 1, payable by the
petitioner, a former volunteer firefighter with the
respondent Elmont Hook and Ladder Company No. 1 (hereinafter
Elmont), filed administrative complaints against Elmont with
the New York State Division of Human Rights (hereinafter
DHR), alleging, inter alia, that she was subjected to a
hostile work environment premised upon sexual harassment.
After a hearing, the Adjudication Counsel of the DHR
determined that while the acts of sexual harassment that
occurred during the petitioner's early tenure with Elmont
"clearly" constituted a hostile work environment,
the acts in question occurred outside of the applicable one
year statute of limitations period pursuant to Executive Law
§ 297(5). It further determined that the petitioner
failed to establish a continuing violation, and thus
concluded that the hostile work environment claim was
time-barred. In a determination dated Janauary 16, 2015, the
Commissioner of the DHR adopted the findings. Thereafter, the
petitioner commenced this proceeding, challenging so much of
the Commissioner's determination as adopted the finding
that her hostile work environment claim based upon sexual
harassment was time-barred.
judicial review by this Court of a determination rendered by
an administrative body following a hearing is limited to
whether it is supported by "substantial evidence"
(Matter of Alegré Deli v New York State Liq.
Auth., 298 A.D.2d 581, 582). "However, such an
administrative determination is arbitrary and capricious when
it exceeds the agency's statutory authority or [is made]
in violation of the Constitution or laws of this
State'" (Matter of Lipani v New York State Div.
of Human Rights, 56 A.D.3d 560, 561, quoting Matter
of Pasieka v New York City Tr. Auth., 31 A.D.3d 769,
hostile work environment claim is subject to a one-year
statute of limitations (see Executive Law §
297; Matter of Queensborough Community Coll. of City
Univ. of N.Y. v State Human Rights Appeal Bd., 41 N.Y.2d
926). However, a hostile work environment claim, by its very
nature, is predicated on a series of separate acts that
collectively constitute an unlawful discriminatory practice
(see National Railroad Passenger Corporation v
Morgan, 536 U.S. 101, 117). Thus, under the
"continuing violation" doctrine, even though one of
those acts might have occurred outside of the limitations
period, the claim will be considered to be timely as long as
one of the acts occurred within the limitations period
(id. at 117-118). "[A] continuing violation may
be found where there is proof of specific ongoing
discriminatory policies or practices, or where specific and
related instances of discrimination are permitted by the
employer to continue unremedied for so long as to amount to a
discriminatory policy or practice" (Clark v State of
New York, 302 A.D.2d 942, 945; see Kimmel v State of
New York, 49 A.D.3d 1210; Cornwell v Robinson,
23 F.3d 694, 704 [2d Cir]). Based upon this doctrine and the
nature of a hostile work environment claim, "[i]n the
case of a hostile work environment claim, the statute of
limitations requires that only one sexually harassing act
demonstrating the challenged work environment occur within
[the statutory period]" and that "once that is
shown, a court... may consider the entire time period of the
hostile environment in determining liability"
(Strauss v New York State Dept. of Educ., 26 A.D.3d
67, 69 [internal quotation marks omitted]; see Petrosino
v Bell Atlantic, 385 F.3d 210, 220 [2d Cir.]).
to the petitioner's contention, here, a review of the
record demonstrates that the Commissioner's determination
that she failed to establish a continuing violation, such
that the sexual harassment based hostile work environment
claim was time-barred, is supported by substantial evidence
and is not arbitrary and capricious. While the petitioner
established at the hearing a hostile work environment
premised upon incidents of sexual harassment, those incidents
occurred outside the limitations period, and she failed to
prove that a specified related incident took place within the
limitations period, which would have ...