New York State Division of Human Rights v. Atlantic City Sub Shop

Proceeding pursuant to Executive Law § 298 (transferred to this Court by order of the Supreme Court, entered in Albany County) for enforcement of an order of the Commissioner of Human Rights that found respondents guilty of unlawful discriminatory practices based upon sex.

Complainants were employees of respondent Atlantic City Sub Shop who were hired by respondent George Ferris, the manager of the sub shop. Because of Ferris’ alleged inappropriate sexual advances, both complainants filed complaints with petitioner against the sub shop and Ferris alleging unlawful discrimination based upon sex. Upon respondents’ failure to answer or appear, an administrative hearing was held, following *854which the Administrative Law Judge found that respondents indeed had discriminated against complainants and awarded each compensatory damages and back pay. The Commissioner of Human Rights sustained those findings, and petitioner commenced this proceeding in Supreme Court seeking enforcement of the Commissioner’s order. Supreme Court then transferred the proceeding to this Court.

Transfer to this Court was inappropriate. Executive Law § 298 authorizes transfer to this Court where the order sought to be reviewed was made as a result of a hearing held pursuant to Executive Law § 297 (4) (a). Here, no answer was filed on behalf of respondents and the hearing that followed was conducted pursuant to Executive Law § 297 (4) (b). Consequently, this proceeding was not transferable to this Court, and the matter should have been determined by Supreme Court in the first instance. Accordingly, this proceeding must be remitted to Supreme Court for an appropriate determination.

Peters, Mugglin, Rose and Kane, JJ., concur. Adjudged that the order of transfer is reversed, without costs, and matter remitted to the Supreme Court for further proceedings in accordance with Executive Law § 298.