Madison Park Owners Corp. v Andrews

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[*1] Madison Park Owners Corp. v Andrews 2009 NY Slip Op 50628(U) [23 Misc 3d 1107(A)] Decided on April 13, 2009 Nassau Dist Ct Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2009
Nassau Dist Ct

Madison Park Owners Corp., Petitioner-Landlord

against

Amy Andrews, Respondent-Tenant Michael Andrews and Robert Andrews Respondent-Undertenants



SP 112/08



CC:Deirdre A. Nicolle, Esq.

350 Fifth Avenue, 59th Floor

New York, NY 10118

Attorney for Petitioner

Barry L. Warren, Esq.

Cohen & Warren, PC

80 Maple Avenue

PO Box 768

Smithtown, NY 11787

Attorney for Respondents

Scott Fairgrieve, J.



This summary proceeding was instituted by Petitioner Madison Park Owners Corp. with the filing of the petition on August 22, 2008. Thereafter, on September 2, 2008, the Respondents filed their answer, alleging various affirmative defenses and counterclaims. Among these allegations were claims of discrimination in violation of Human Rights Law §296, purportedly based on Respondent Amy Andrews' disability.

On the same day, September 2, 2008, Respondents simultaneously filed a complaint with the New York State Division of Human Rights (NYSDHR), as well as a civil suit in Nassau County Supreme Court, alleging the same discriminatory violations.

On December 16, 2008, by order for Justice William R. LaMarca, the Supreme Court dismissed the civil suit on the basis that the court lacked subject matter jurisdiction because the same claims were pending with the NYSDHR.

Petitioner thereafter moved in this Court on March 4, 2009, to dismiss Respondents' fourth and fifth affirmative defenses and second, third and fourth counterclaims on the basis that they constitute the same discriminatory claims pending with the NYSDHR and as such, this Court also lacks subject matter jurisdiction to hear these claims. Respondents oppose the motion.

It should be noted that while the instant motion has been pending, the NYSDHR rendered its decision concerning the discrimination alleged by Respondents herein. On March 31, 2009, the NYSDHR dismissed the complaint for lack of probable cause.

With respect to the election of remedies for human rights claims, HRL §297(9) states: "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction... unless such [*2]person had filed a complaint hereunder or with any local commission on human rights... 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.... No person who has initiated any action in a court of competent jurisdiction...may file a complaint with respect to the same grievance under this section" (emphasis added).

This provision of HRL undisputably creates an election of remedies that are mutually exclusive. A person discriminated against has the right to bring the matter to a court with jurisdiction to award appropriate relief, but they cannot if they have already chosen the administrative remedy. In the alternative, they cannot choose the administrative remedy if they have already gone to court. (See Orendorff v. Benevolent and Protective Order of Elks Lodge No. 96, 195 Misc 2d 53, 753 NYS2d 703 (Sup. Ct. Oneida County 2003); Legg v. Eastman Kodak Co., 248 AD2d 936, 670 NYS2d 291 (App. Div. 4th Dep't 1998); Ramos v. New York City Police Dep't, 127 Misc 2d 872, 487 NYS2d 667 (Sup. Ct. Special Term New York County 1985); West v. Technical Aid Corp., 111 Misc 2d 23, 443 NYS2d 318 (Sup. Ct. Special Term Nassau County 1981); State Div. of Human Rights on Complaint of Davey v. Commissioner of New York State Dep't of Civil Service, 57 AD2d 699, 395 NYS2d 774 (1977); State Div. of Human Rights on Complaint of Fitzhugh v. Monroe, 88 Misc 2d 16, 386 NYS2d 317 (1976); Jeter v. New York City Dep't of Edu., 549 FSupp2d 295 (EDNY 2008); Johnson v. County of Nassau, 411 FSupp2d 171 (EDNY 2006); Jiminez v. Southridge Co-op., Section I, Inc., 626 FSUPP 732 (1985)).

It is clear that where the complainant has already filed a complaint with a local commission such as the NYSDHR, that party no longer has a cause of action concerning the same matter in court. However, it is unclear how HRL §297(9) applies when the same claims are interposed simultaneously with the NYSDHR and as counterclaims in a pre-existing summary proceeding.

The statute prohibits a party who "has initiated any action in a court of competent jurisdiction" from filing a complaint with a local commission on human rights. Though this summary proceeding was brought prior to the filing of a complaint with the NYSDHR, the Respondents herein did not institute this action. Rather, Respondents only alleged claims of discrimination as counterclaims to defend against this action. The discrimination claims were not interposed until September 2, 2008, the very same day the claims were interposed with the NYSDHR.

Had Respondents intended to elect the Landlord-Tenant court as their preferred forum for litigating the discrimination claims, they would not have simultaneously filed a complaint with the NYSDHR alleging the same claims. Therefore, when Respondents filed with the NYSDHR, they elected to litigate the discrimination claims in that forum. [*3]

As the Respondents elected the NYSDHR as their preferred forum for litigating the discrimination claims, this Court is divested of subject matter jurisdiction to hear them. Furthermore, in electing the NYSDHR as the appropriate forum, the Respondents are bound by the NYSDHR's decision of March 31, 2009. The NYSDHR's dismissal of the complaint was based on the merits and therefore neither does this Court obtain subject matter jurisdiction under any of the three exceptions noted in HRL §297(9). Accordingly, Respondents' fourth and fifth affirmative defenses and second, third and fourth counterclaims are hereby dismissed.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated: April 13, 2009

SF/kgv

CC:Deirdre A. Nicolle, Esq.

350 Fifth Avenue, 59th Floor

New York, NY 10118

Attorney for Petitioner

Barry L. Warren, Esq.

Cohen & Warren, PC

80 Maple Avenue

PO Box 768

Smithtown, NY 11787

Attorney for Respondents

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