S T A T E O F N E W Y O R K
________________________________________________________________________
7407
2013-2014 Regular Sessions
I N A S S E M B L Y
May 15, 2013
___________
Introduced by M. of A. BUCHWALD, ENGLEBRIGHT -- (at request of the Divi-
sion of Human Rights) -- read once and referred to the Committee on
Governmental Operations
AN ACT to amend the executive law, in relation to providing a complain-
ant, in housing cases, the option to appeal a final order or bring a
de novo action in court, after a dismissal for lack of probable cause
or jurisdiction
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 9 of section 297 of the executive law, as
amended by section 16 of part D of chapter 405 of the laws of 1999, is
amended to read as follows:
9. Any person claiming to be aggrieved by an unlawful discriminatory
practice shall have a cause of action in any court of appropriate juris-
diction for damages, including, in cases of housing discrimination only,
punitive damages, and such other remedies as may be appropriate, includ-
ing any civil fines and penalties provided in subdivision four of this
section, unless such person had filed a complaint hereunder or with any
local commission on human rights, or with the superintendent pursuant to
the provisions of section two hundred ninety-six-a of this chapter,
provided that, where the division has dismissed such complaint on the
grounds of administrative convenience, on the grounds of untimeliness,
or on the grounds that the election of remedies is annulled, such person
shall maintain all rights to bring suit as if no complaint had been
filed with the division. At any time prior to a hearing before a hearing
examiner, a person who has a complaint pending at the division may
request that the division dismiss the complaint and annul his or her
election of remedies so that the human rights law claim may be pursued
in court, and the division may, upon such request, dismiss the complaint
on the grounds that such person's election of an administrative remedy
is annulled. Notwithstanding subdivision (a) of section two hundred four
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09004-01-3
A. 7407 2
of the civil practice law and rules, if a complaint is so annulled by
the division, upon the request of the party bringing such complaint
before the division, such party's rights to bring such cause of action
before a court of appropriate jurisdiction shall be limited by the stat-
ute of limitations in effect in such court at the time the complaint was
initially filed with the division. Any party to a housing discrimination
complaint shall have the right within twenty days following a determi-
nation of probable cause pursuant to subdivision two of this section to
elect to have an action commenced in a civil court, and an attorney
representing the division of human rights will be appointed to present
the complaint in court, or, with the consent of the division, the case
may be presented by complainant's attorney. A complaint filed by the
equal employment opportunity commission to comply with the requirements
of 42 USC 2000e-5(c) and 42 USC 12117(a) and 29 USC 633(b) shall not
constitute the filing of a complaint within the meaning of this subdivi-
sion. No person who has initiated any action in a court of competent
jurisdiction or who has an action pending before any administrative
agency under any other law of the state based upon an act which would be
an unlawful discriminatory practice under this article, may file a
complaint with respect to the same grievance under this section or under
section two hundred ninety-six-a of this article. IN CASES OF HOUSING
DISCRIMINATION ONLY, A PERSON WHOSE COMPLAINT HAS BEEN DISMISSED BY THE
DIVISION AFTER INVESTIGATION FOR LACK OF JURISDICTION OR LACK OF PROBA-
BLE CAUSE MAY FILE THE SAME CAUSE OF ACTION IN A COURT OF APPROPRIATE
JURISDICTION UNDER THIS SECTION, UNLESS JUDICIAL REVIEW OF SUCH DISMISS-
AL HAS BEEN SOUGHT PURSUANT TO SECTION TWO HUNDRED NINETY-EIGHT OF THIS
ARTICLE.
S 2. Section 298 of the executive law, as amended by chapter 166 of
the laws of 2000, is amended to read as follows:
S 298. Judicial review and enforcement. Any complainant, respondent
or other person aggrieved by an order of the commissioner which is an
order after public hearing, a cease and desist order, an order awarding
damages, an order dismissing a complaint, or by an order of the division
which makes a final disposition of a complaint may obtain judicial
review thereof, and the division may obtain an order of court for its
enforcement and for the enforcement of any order of the commissioner
which has not been appealed to the court, in a proceeding as provided in
this section. Such proceeding shall be brought in the supreme court in
the county wherein the unlawful discriminatory practice which is the
subject of the order occurs or wherein any person required in the order
to cease and desist from an unlawful discriminatory practice or to take
other affirmative action resides or transacts business. Such proceeding
shall be initiated by the filing of a notice of petition and petition in
such court. Thereafter, at a time and in a manner to be specified by
rules of court, the division shall file with the court a written tran-
script of the record of all prior proceedings. Upon the filing of a
notice of petition and petition, the court shall have jurisdiction of
the proceeding and of the questions determined therein, except that
where the order sought to be reviewed was made as a result of a public
hearing held pursuant to paragraph a of subdivision four of section two
hundred ninety-seven of this article, the court shall make an order
directing that the proceeding be transferred for disposition to the
appellate division of the supreme court in the judicial department
embracing the county in which the proceeding was commenced. The court
shall have power to grant such temporary relief or restraining order as
it deems just and proper, and to make and enter upon the pleadings,
A. 7407 3
testimony, and proceedings set forth in such transcript an order enforc-
ing, modifying, and enforcing as so modified, or setting aside in whole
or in part such order. No objection that has not been urged in prior
proceedings shall be considered by the court, unless the failure or
neglect to urge such objection shall be excused because of extraordinary
circumstances. Any party may move the court to remit the case to the
division in the interests of justice for the purpose of adducing addi-
tional specified and material evidence and seeking findings thereon,
provided he or she shows reasonable grounds for the failure to adduce
such evidence in prior proceedings. The findings of facts on which such
order is based shall be conclusive if supported by sufficient evidence
on the record considered as a whole. All such proceedings shall be heard
and determined by the court and any appeal taken from its judgment or
order shall be reviewed by the appropriate appellate court as expe-
ditiously as possible and with lawful precedence over other matters. The
jurisdiction of the courts over these proceedings, as provided for here-
in, shall be exclusive and their judgments and orders shall be final,
subject to appellate review in the same manner and form and with the
same effect as provided for appeals from a judgment in a special
proceeding. The division's copy of the testimony shall be available at
all reasonable times to all parties for examination without cost and for
the purposes of judicial review of such order. Any appeal under this
section and any proceeding, if instituted under article seventy-eight of
the civil practice law and rules to which the division or the board is a
party shall be heard on the record without requirement of printing. The
division may appear in court by one of its attorneys. A proceeding under
this section when instituted by any complainant, respondent or other
person aggrieved must be instituted within sixty days after the service
of such order. IN CASES OF HOUSING DISCRIMINATION ONLY, A COMPLAINT
DISMISSED AFTER INVESTIGATION FOR LACK OF JURISDICTION OR LACK OF PROBA-
BLE CAUSE MAY EITHER BE APPEALED PURSUANT TO THIS SECTION OR THE SAME
CAUSE OF ACTION MAY BE FILED IN A COURT OF APPROPRIATE JURISDICTION
PURSUANT TO SUBDIVISION NINE OF SECTION TWO HUNDRED NINETY-SEVEN OF THIS
ARTICLE.
S 3. This act shall take effect on the ninetieth day after it shall
have become a law.