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Thursday, June 30, 2016

State Division of Human Rights’ complaint alleging discriminatory housing practices filed in Supreme Court held untimely


State Division of Human Rights’ complaint alleging discriminatory housing practices filed in Supreme Court held untimely
New York State Div. of Human Rights v Folino, 2016 NY Slip Op 04821, Appellate Division, Fourth Department

The New York State Division of Human Rights (SDHR), on the complaint of Housing Opportunities Made Equal, Inc. (HOME), commenced an action in Supreme Court seeking damages from Anthony and Carmeline Folino for their alleged discriminatory housing practices. Supreme Court denied the Folino’s motion to dismiss SDHR’s complaint as untimely and the Folinos appealed the Supreme Court’s ruling.

The Appellate Division said that it agreed with the Folinos that Supreme Court erred in denying their pre-answer motion to dismiss the complaint as time-barred pursuant to CPLR §214(2). 

The court's decision noted that HOME had filed an administrative complaint with the United States Department of Housing and Urban Development, which then forwarded the matter to SDHR pursuant to a work-sharing agreement. Accordingly, said the Appellate Division, the running of the statute of limitations was tolled upon the filing of the administrative complaint, and during its pendency, until the administrative proceeding was terminated.

The Appellate Division explained that the last discriminatory act set forth in the SDHR’s complaint occurred on November 8, 2010, and thus the cause of action accrued and the three-year statute of limitations for the New York State Human Rights Law began to run on that date.

Following a probable cause determination by SDHR, the Folinos had submitted a notice of their election to terminate the administrative proceeding and instead "to have an action commenced in the civil court" by SDHR as authorized by Executive Law §297[9].* 

That election triggered the continuation of the running of the Statute of Limitations, the running of which had been tolled upon the filing of the administrative complaint by HOME.

The Appellate Division, noting that 143 days elapsed after the cause of action accrued and before the tolling period commenced upon HOME's filing of its administrative complaint, found that SDHR had two years and 222 days within which to commence the civil action after the tolling period ended. 

This period, said the court, ended on February 22, 2014. SDHR, however, did not commence its civil action until July 3, 2014. Accordingly, said the court, it was untimely, sustaining the Folino’s motion to dismiss complaint filed by SDHR in a civil court.

* §297[9] of the Executive Law, a statutory exception to the Doctrine of Election of Remedies, in pertinent part provides “…. 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 be appointed to present the complaint in court, or, with the consent of the division, the case may be presented by complainant's attorney.”

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