September 11, 2018

Discrimination claims not supported by a memorandum of law or oral argument in Supreme Court deemed abandoned



Discrimination claims not supported by a memorandum of law or oral argument in Supreme Court deemed abandoned
Schwertfager v New York State Div. of Human Rights, 2018 NY Slip Op 03289, Appellate Division, Fourth Department

Sharon Schwertfager, commenced a proceeding pursuant to Executive Law §298, New York State's Human Rights Law, in Supreme Court seeking to annul the determination of New York State Division of Human Rights [SDHR] that there was no probable cause to believe that Schwertfager 's employer, State University of New York at Fredonia, unlawfully discriminated and retaliated against her.

Supreme Court dismissed dismissing Schwertfager's petition and she appealed the court's decision.

In the course of considering her appeal, the Appellate Division noted that Schwertfager failed to address her discrimination claims in her memorandum of law or at oral argument in the motion court, nor did she address them in her brief on appeal.

Accordingly, said the court, any issues with respect to those claims advanced by Schwertfager were deemed to have been abandoned.

Addressing the merits of Schwertfager's arguments, the Appellate Division found that "the determination of SDHR is supported by a rational basis and is not arbitrary and capricious." Further, said the court, contrary to Schwertfager 's contentions regarding the nature and extent of SDHR's investigation of her complaint, the Appellate Division concluded that SDHR " properly investigated [Schwertfager's} complaint . . . and provided [Schwertfager] with a full and fair opportunity to present evidence on [her] behalf and to rebut the evidence presented by [Fredonia]."

The decision is posted on the Internet at:


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