Harry de la Concha v Patricia L. Gatling

de la Concha v Gatling 2004 NY Slip Op 08969 [13 AD3d 74] December 2, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Harry de la Concha, Appellant,
v
Patricia L. Gatling, as Commissioner and Chair of the New York City Commission on Human Rights, Respondent.

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Order, Supreme Court, New York County (Walter B. Tolub, J.), entered September 22, 2003, which dismissed this proceeding brought pursuant to CPLR article 78 seeking to annul respondent's determination and order after review affirming a determination and order after investigation which found no probable cause, and denied petitioner's motion to amend and recalendar the petition, unanimously affirmed, without costs.

A petition to challenge the administrative finding of no probable cause was previously dismissed on default in November 2002. Petitioner neither moved to vacate that default nor commenced a new proceeding in accordance with the statutory requirements (see Matter of Gershel v Porr, 89 NY2d 327 [1996]). Even if petitioner had properly commenced a new proceeding, it would have been barred as untimely (Administrative Code of City of NY § 8-123).

Were we to review respondent's determination of no probable cause, we would find it rationally based. Petitioner was given a full and fair opportunity to present his case (Matter of Mitchell v Commissioner of Human Rights, 234 AD2d 128 [1996]). The evidence credited by respondent revealed that petitioner was terminated for legitimate, nondiscriminatory reasons. Concur—Tom, J.P., Andrias, Saxe, Williams and Sweeny, JJ.