Kamate v. MJ Cahn Co.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered May 9, 2016, which, to the extent appealed from, denied defendants’ CPLR 3211 (a) (2) and (7) motion to dismiss the claims under the New York City Human Rights Law, unanimously affirmed, without costs. Supreme Court correctly rejected defendants’ argument that plaintiff elected her remedy by filing a complaint with the New York Division of Human Rights (DHR) before she commenced this action (see Executive Law § 297 [9]), since, notwithstanding that she sought dismissal of the DHR complaint only after commencing this action, DHR dismissed the complaint on the ground that her election of remedy was annulled (see generally Eastman Chem. Prods. v New York State Div. of Human Rights, 162 AD2d 157 [1st Dept 1990]; see also Mitsubishi Bank v New York State Div. of Human Rights, 176 AD2d 689 [1st Dept 1991], appeal withdrawn 81 NY2d 1068 [1993]). The only prerequisite to dismissal of the DHR complaint on this ground is that dismissal be sought “prior to a hearing before a hearing examiner” in the DHR proceeding (Executive Law § 297 [9]). The statute does not require that dismissal be obtained prior to commencement of the state court action. Plaintiff made her request prior to a hearing before a hearing examiner, and her election of remedies was annulled upon DHR’s dismissal of her complaint. She was then free to pursue her claims in state court. The court’s interpretation of the statute is consistent with the stated goal of the 1997 amendment permitting DHR to dismiss a case “on the grounds that the complainant’s election of an administrative remedy is annulled” (L 1997, ch 374), i.e., to allow the complainant to pursue an action in state court (see Budget Rep on Ten Day Bills, Bill Jacket, L 1997, ch 374 at 5), and thereby to “preserve agency resources” (see Acosta v Loews Corp., 276 AD2d 214, 220-221 [1st Dept 2000]; Kordich v Povill, *574 244 AD2d 112, 115-116 [3d Dept 1998]). Concur — Richter, J.P., Manzanet-Daniels, Gische, Webber and Kahn, JJ.