Stewart v ARC Dev. LLC

Stewart v ARC Dev. LLC 2016 NY Slip Op 02567 Decided on April 5, 2016 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 April 5, 2016
Mazzarelli, J.P., Andrias, Saxe, Moskowitz, Kahn, JJ.
708 260685/13

[*1]Curtis M. Stewart, Plaintiff-Appellant,

v

ARC Development LLC, et al., Defendants-Respondents.

Curtis M. Stewart, appellant pro se.

Stecklow & Thompson, New York (David A. Thompson of counsel), for respondents.

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered August 22, 2014, which, in this action alleging race-based discrimination in housing, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff previously filed a complaint with the New York State Division of Human Rights (DHR), which was dismissed upon a finding of "no probable cause." Therefore, the subject complaint is barred by the election of remedies provision contained in Executive Law § 297(9) (see Matter of East Riv. Hous. Corp. v New York State Div. of Human Rights, 116 AD3d 562 [1st Dept 2014]; Wrenn v Verizon, 106 AD3d 995 [2d Dept 2013]).

Plaintiff argues that this action is not barred by the election of remedies provision, because it is actually a timely appeal from the DHR determination. However, plaintiff did not file a notice of petition seeking reversal of the DHR determination within 60 days of the determination (see Executive Law § 298; Matter of Jackson v N.Y.S. Div. of Human Rights, 69 AD3d 501 [1st Dept 2010]). Moreover, to the extent he did file papers within the 60-day period, those papers failed to name DHR, which is a necessary party to such an appeal (see Executive Law § 298; 22 NYCRR 202.57[a]; Matter of Jiggetts v MTA Metro-N. R.R., 121 AD3d 414, 415 [1st Dept 2014]), and there is no showing that those papers were ever served on any party. "A pro se litigant acquires no greater rights than those of any other litigant and cannot use such status to deprive defendant of the same rights as other defendants" (Brooks v Inn at Saratoga Assn., 188 AD2d 921, 921 [3d Dept 1992]; see Goldmark v Keystone & Grading Corp., 226 AD2d 143, 144 [1st Dept 1996]). Thus, the complaint and other filed papers cannot be construed [*2]as a timely or effective appeal from the DHR determination.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2016

CLERK