Stewart v. ARC Development LLC

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.

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

Concur — Mazzarelli, J.R, Andrias, Saxe, Moskowitz and Kahn, JJ.