St. Matthew Lutheran Church v. New York State Division of Human Rights

Memorandum: In this CPLR article 78 proceeding, respondent appeals from a judgment granting the petition seeking to prohibit it from taking further action on a discrimination complaint filed by the former principal of the school operated by petitioner. We agree with respondent that Supreme Court erred in granting the petition. It is well established that “the extraordinary remedy of prohibition does not... lie to interfere 1281 with proceedings before [respondent],” inasmuch as the “[Remedy for asserted error of law in the exercise of [respondent’s] jurisdiction or authority lies first in administrative review and following exhaustion of that remedy in subsequent judicial review pursuant to section 298 of the Executive Law” (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789, 791 [1979]; see Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 AD3d 1314, 1315-1316 [2009]). Further, “a challenge to a nonfinal order of [respondent] is not available unless there is a showing of ‘futility of the administrative remedy!,] irreparable harm in the absence of prompt judicial intervention! ] or a claim of unconstitutional action’ ” (Newfield Cent. School Dist., 66 AD3d at 1316), and that is not the case here (see Matter of Diocese of Rochester v New York State Div. of Human Rights, 305 AD2d 1000 [2003]). Present — Scudder, PJ., Smith, Lindley, Sconiers and Gorski, JJ.