Tierney v Patchogue Fire Dept. Ambulance Co., Inc.

[*1] Tierney v Patchogue Fire Dept. Ambulance Co., Inc. 2009 NY Slip Op 50929(U) [23 Misc 3d 1124(A)] Decided on May 14, 2009 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2009
Supreme Court, Suffolk County

Penny A. Tierney, Petitioner,

against

Patchogue Fire Department Ambulance Company, Inc., Respondent.



44144-08



JOSEPH C. STROBLE, ESQ.

Atty. For Petitioner

PO Box 596

Sayville, NY 11782

SMITH, MAZURE, DIRECTOR ET ALS

Attys. For Respondent 111 John St.

New York, NY 10038

Thomas F. Whelan, J.

ORDERED that this motion (#

002) by respondent to dismiss the petition served and filed in this Article 78 proceeding, is considered under CPLR 7804 and is granted; and it is further

ORDERED that the petitioner's demands for relief are denied and the petition (#

001) is dismissed.

The petitioner commenced this Article 78 proceeding for a judgment reversing and annulling the September 18, 2008 denial of the petitioner's application for membership in the petitioner's ambulance company (hereinafter the "company") and an order and judgment admitting the petitioner into full membership into the company (see Count 1 of the petition). The petitioner further demands a reversal of the respondent's May 30, 2008 Freedom of Information Law (hereinafter "FOIL") determination which denied petitioner's request for documents relating to membership meetings in 2003, 2005 and 2008 (see Count 2 of the petition). The petitioner claims that these determinations were arbitrary, capricious and erroneous as such determinations violated the petitioner's equal protection and due process rights as well as various other rights and privileges accorded her under federal and state constitutions and laws.

Underlying the petitioner's demands for relief are allegations that prior to April 5, 2001, the petitioner was a member of the respondent company. However, due to an on the job injury suffered on April 5, 2001, the petitioner became disabled as determined by the Social Security Administration and she collected Workers Compensation benefits by reason of such injury. In 2003, the petitioner informally requested reinstatement to active membership status but was granted only "honorary" membership status in July of 2005.

It wasn't until April of 2008 that the petitioner filed her written request for membership status with the company, which was denied in September of 2008. Within three months of such denial, the petitioner filed a complaint with the New York State Division of Human Rights alleging that the respondent discriminated against the petitioner by reason of her disability and sex. The petitioner then commenced this Article 78 proceeding for the relief outlined above.

The respondent moves for an order dismissing the petition on various grounds pursuant to CPLR 7404(f). With respect to the petitioner's claims for reversal of the September 18, 2008 denial of petitioner's most recent and formal application for membership into the company, the respondent asserts that said claim is barred by the election of remedies provision contained in § 297(9) of the Executive Law (New York Human Rights Law) and/or the doctrine of laches. The respondent further contends that the petitioner's FOIL claims are barred by the four month statute of limitations prescribed CPLR 217.

The petitioner's opposing papers do not contest the efficacy of the respondent's claim that the petitioner's FOIL claims are barred by the four month statute of limitations set forth in CPLR [*2]217. Those portions of the respondent's motion wherein it seeks dismissal of "Count 2" of the petition are thus granted.

The petitioner's opposition to the respondent's application to dismiss Count 1 of the petition is singularly predicated upon claims that Count 1 is not precluded by the election of remedies provision contained in § 297(9) of the Executive Law (New York Human Rights Law) because the conduct complained of in her previously filed administrative complaint against the respondent differs from that alleged in this proceeding. The court, however, disagrees and thus grants the respondent's application to dismiss Count 1 of the complaint.

The New York State Human Rights Law, codified in § 292 et seq of the Executive Law, provides in § 297(9), that any person claiming to be aggrieved by an unlawful discriminatory practice has a cause of action for damages and such other remedies as may be appropriate, unless such person has filed a complaint with the State Division of Human Rights or with any like local commission and such complaint has not been withdrawn prior to being heard or dismissed by the Division on the grounds of administrative convenience (see Executive Law § 297[9]). This statute thus provides a clear election of mutually exclusive remedies: complainants may file an action or special proceeding in the courts seeking redress from those who have discriminated against them or they may file an administrative complaint. They cannot do both and are bound to proceed in the forum they chose first (see Ehrlich v. Kantor, 213 AD2d 447, 624 NYS2d 888 [2d Dept 1995]; James v Coughlin, 124 AD2d 728, 508 NYS2d 231 [2d Dept 1986]). So long as the statutory complaint encompasses the same purportedly wrongful and discriminatory conduct, the statutory election of remedies will apply to bar a later commenced action predicated upon the same underlying wrongs, irrespective of the labels attached to either the conduct or the remedy sought (see Benjamin v New York City Depart. of Health, 57 AD3d 403, 870 NYS2d 290 [1st Dept 2008]; Craig-Oriol v Mount Sinai Hosp., 201 AD2d 449, 607 NYS2d 391 [2d Dept 1994]).

Here, it is not disputed that the petitioner filed an administrative complaint with the State Division of Human Rights charging the respondent company with discriminatory practices due to the petitioner's physical disabilities and her sex and thereafter commenced this Article 78 proceeding. Since it is not alleged that the statutory exceptions for withdrawal or dismissal of the administrative complaint are applicable to this case, the election of remedies provisions of Executive Law § 297(9) is prima facie applicable to this Article 78 proceeding and precludes the petitioner's continued maintenance of the claims interposed herein.

The petitioner's claim that the underlying wrongful conduct upon which her administrative complaint is based is not the same as the underlying conduct complained of in this Article 78 proceeding, is belied by the record. Paragraph 7 of the petition served and filed herein incorporates the allegations set forth in the administrative complaint by reference and by attachment. With reference to that administrative complaint, the petitioner goes on to allege: "Therein, petitioner set out the facts which demonstrate discriminatory practices by the respondent, against the Petitioner, based on disability and sex". Under these circumstances, the [*3]respondent is entitled to a dismissal of the claims for relief set forth in Count 1 of the petition.

In view of the foregoing, the respondent's motion (#

002) to dismiss the petition is granted and the petition (#

001) is dismissed. Settle judgment.

DATED: ___May 14, 2009_______________________________________________

THOMAS F. WHELAN, J.S.C.