Matter of Gordon v. New York State Div. of Human Rights ( 2015 )

Matter of Gordon v New York State Div. of Human Rights (2015 NY Slip Op 01800)

Matter of Gordon v New York State Div. of Human Rights

2015 NY Slip Op 01800

Decided on March 4, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 4, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS
SHERI S. ROMAN, JJ.

2013-03558
(Index No. 4712/12)

[*1]In the Matter of John H. Gordon, appellant,

v

New York State Division of Human Rights, et al., respondents.

Gunilla Perez-Faringer, White Plains, N.Y., for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York, N.Y. (Jennifer Rygiel-Boyd of counsel), for respondent Shoprite Supermarkets, Inc.

DECISION & ORDER

In a proceeding pursuant to Executive Law § 298 and CPLR article 78 to review a determination of the New York State Division of Human Rights dated October 15, 2012, dismissing the petitioner's administrative complaint upon a finding that there was no probable cause to believe that Shoprite Supermarkets, Inc., engaged in an unlawful discriminatory practice in terminating his employment, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Cacace, J.), entered January 16, 2013, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

Where, as here, the New York State Division of Human Rights (hereinafter the NYSDHR) renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis (see Ramirez v New York State Div. of Human Rights, 4 NY3d 789, 790; Matter of Vora v New York State Div. of Human Rights, 103 AD3d 739, 739; Matter of Orosz v New York State Div. of Human Rights, 88 AD3d 798). The NYSDHR's determination that there was no probable cause was not arbitrary and capricious or lacking a rational basis in the record. Moreover,

the petitioner's remaining contentions are without merit.

Therefore, the Supreme Court properly denied the petition and dismissed the proceeding (see Matter of Knight v New York State Div. of Human Rights, 118 AD3d 791).

DILLON, J.P., LEVENTHAL, CHAMBERS and ROMAN, JJ., concur.

2013-03558 DECISION & ORDER ON MOTION

In the Matter of John H. Gordon, appellant, v New

York State Division of Human Rights, et al.,

respondents.

(Index No. 4712/12)

Motion by the respondent Shoprite Supermarkets, Inc., on an appeal from a judgment of the Supreme Court, Westchester County, entered January 16, 2013, inter alia, to strike stated portions of the appellant's reply brief on the ground, inter alia, that those portions of the reply brief are not supported by the record on appeal. By decision and order on motion of this Court dated June 10, 2014, that branch of the motion was held in abeyance, and was referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to strike stated portions of the appellant's reply brief is denied.

DILLON, J.P., LEVENTHAL, CHAMBERS and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court