Ferrer v New York State Div. of Human Rights

Ferrer v New York State Div. of Human Rights 2011 NY Slip Op 01583 Decided on March 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2011
Saxe, J.P., Sweeny, Catterson, Freedman, Román, JJ.
4410 106174/09

[*1]Eloisa O. Ferrer, Plaintiff-Appellant,

v

New York State Division of Human Rights, Defendant, Wilson, Elser, Moskowitz Edelman & Dicker, LLP, Defendant-Respondent.




Law Office of Kenneth W. Richardson, New York (Kenneth W.
Richardson of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York
(Nancy V. Wright of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered December 1, 2009, granting defendant-respondent Wilson, Elser, Moskowitz Edelman & Dicker, LLP's (the law firm) cross motion to deny and dismiss the petition to vacate the determination of defendant New York State Division of Human Rights (DHR), dated March 4, 2009, which found no probable cause to believe that the law firm had engaged in or was engaging in the unlawful discriminatory practice complained of and dismissed the complaint, unanimously affirmed, without costs.

Petitioner contends that DHR's determination was arbitrary and capricious in that DHR failed to investigate and consider petitioner's claim that she was subjected to a hostile work environment by the law firm. However, this claim was not reasonably discernable from the complaint petitioner filed with DHR. A claim not raised before an administrative agency may not be raised for the first time in an article 78 proceeding (see Matter of Johnson v New York State Tax Commn., 117 AD2d 867, 868 [1986]; Matter of Seitelman v Lavine, 36 NY2d 165, 170 [1975]).

Moreover, the specific conduct alleged by petitioner in the complaint and petition, if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult' that [was] sufficiently severe or pervasive to alter the conditions of [her] employment'" (see Harris v Forklift Sys., 510 US 17, 21 [1993] [citation omitted]). "[I]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment" (see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 [1996], lv denied 89 NY2d 809 [1997] [citations omitted]). There was no
evidence of record which established that the specific incidents described in the petition were [*2]anything more than isolated, occasional or benign.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2011

CLERK