Senate Bill S5120

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5120
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 24, 2021
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Investigations and Govern-
   ment Operations
 
 AN ACT to amend the executive law, in relation to institution  of  court
   actions
 
   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  chapter  160  of  the  laws  of 2019, 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 employment discrimination
 related to private employers and housing discrimination  only,  punitive
 damages,  and  such  other remedies as may be appropriate, including any
 civil fines and penalties provided in subdivision four of this  section,
 unless  such  person  had filed a complaint [hereunder] PURSUANT TO THIS
 SECTION or with any local commission on human rights, or with the super-
 intendent pursuant to the provisions of section two hundred ninety-six-a
 of this [chapter,]  ARTICLE;  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 AND  MAY  BRING
 SUCH SUIT WITHIN THREE YEARS AFTER ANY SUCH DISMISSAL FOR ADMINISTRATIVE
 CONVENIENCE. 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02457-01-1

 S. 5120                             2
 
 Notwithstanding subdivision (a) of section two hundred four 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  divi-
 sion,  such  party's rights to bring such cause of action before a court
 of appropriate jurisdiction shall be limited by the statute  of  limita-
 tions  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  determination  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] SHALL 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  consti-
 tute  the  filing of a complaint within the meaning of this subdivision.
 No person who has initiated any action in a court of competent jurisdic-
 tion 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.
   §  2. Subdivision 9 of section 297 of the executive law, as separately
 amended by chapter 160 of the laws of 2019 and chapter 236 of  the  laws
 of 2020, 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  employment  discrimination
 related  to  private employers and housing discrimination only, punitive
 damages, and such other remedies as may be  appropriate,  including  any
 civil  fines and penalties provided in subdivision four of this section,
 unless such person had filed a complaint [hereunder]  PURSUANT  TO  THIS
 SECTION or with any local commission on human rights, or with the super-
 intendent pursuant to the provisions of section two hundred ninety-six-a
 of  this  [chapter,]  ARTICLE;  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 AND MAY BRING
 SUCH SUIT WITHIN THREE YEARS AFTER ANY SUCH DISMISSAL FOR ADMINISTRATIVE
 CONVENIENCE. 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 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 divi-
 sion, such party's rights to bring such cause of action before  a  court
 of  appropriate  jurisdiction shall be limited by the statute of limita-
 tions 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 determination 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

 S. 5120                             3
 
 the division of human rights [will] SHALL 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  consti-
 tute  the  filing of a complaint within the meaning of this subdivision.
 No person who has initiated any action in a court of competent jurisdic-
 tion 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  probable  cause  may
 file  the  same  cause  of action in a court of appropriate jurisdiction
 pursuant to this section, unless judicial review of such  dismissal  has
 been  sought  pursuant to section two hundred ninety-eight of this arti-
 cle.
   § 3. This act shall take effect immediately; provided however that  if
 chapter  236  of  the laws of 2020 shall have not yet taken effect, then
 section two of this act shall take effect on the same date  and  in  the
 same manner as chapter 236 of the laws of 2020 takes effect.