An employee [Employee] filed a complaint with the New York State Division of Human Rights [DHR] alleging that a member [Respondent] of the New York State Assembly discriminated against her on the basis of gender and sexually harassed her during her employment.
DHR found probable cause to proceed to investigate Employee's complaint and then amended the Employee's discrimination complaint by adding the New York State Assembly [NYSA] as a Respondent in the DHR in its investigation of the complaint submitted by Employee.
NYSA, contending that DHR did not give NYSA "constitutional due process notice of the charges against it because there are no specific allegations of wrongdoing on its part", initiated the instant CPLR Article 78 proceeding seeking a Writ of Prohibition* barring DHR from proceeding with the Employee's discrimination claim to the extent it named the NYSA in the DHR proceeding as a Respondent. Supreme Court denied NYSA's application for the Writ of Prohibition and NYSA appealed.
Citing Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, and other New York State court decisions, the Appellate Division affirmed the Supreme Court's ruling, explaining that "The extraordinary writ of prohibition is available to address 'whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction' ".
The Appellate Division also opined that "Prohibition will not lie where the party has access to another adequate legal remedy" and that "[E]rrors of law, which of course may be verbalized, but incorrectly, as excesses of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ", quoting the Court of Appeals' decision in Matter of State of New York v King, 36 NY2d 59.
Addressing NYSA's argument that DHR acted in excess of its jurisdiction and thus NYSA was not required to exhaust its administrative remedies, the Appellate Division said it rejected that contention because the "[remedy] for asserted error of law in the exercise of [DHR'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", concluded that NYSA "will suffer no irreparable harm . . . by waiting to challenge [DHR's] findings, if necessary, on the merits after [DHR] investigates [the Employee's] complaint".
* A writ of prohibition is one of number of the ancient “common law” writs and is typically issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the ground that the lower tribunal "lacked jurisdiction." Other ancients writs include a writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction, a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority do you act]. New York State's Civil Practice Law and Rules [C{LR] set out the modern equivalents of such surviving ancient writs.