Majority
p. 1280In the Matter of St. Matthew Lutheran Church, Respondent, v New York State Division of Human Rights, Appellant. [930 NYS2d 920]
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
p. 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.
Cases cited
- Tessy Plastics Corp. v. State Division of Human Rights 47 NY2d 789 at 791 p. 1281
- Newfield Central School District v. New York State Division of Human Rights 66 AD3d 1314 at 1315-1316 p. 1281
- Diocese of Rochester v. New York State Division of Human Rights 305 AD2d 1000 p. 1281