Vetro v. Hampton Bays Union Free School District , 148 A.D.3d 963 ( 2017 )

Vetro v Hampton Bays Union Free School Dist. (2017 NY Slip Op 01910)

Vetro v Hampton Bays Union Free School Dist.

2017 NY Slip Op 01910

Decided on March 15, 2017

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 15, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.

2014-09525
(Index No. 36023/09)

[*1]Frank J. Vetro, appellant,

v

Hampton Bays Union Free School District, et al., respondents.

Frank J. Vetro, Miller Place, NY, appellant pro se.

Miranda Sambursky Slone Sklarin Verveniotis, LLP, Mineola, NY (Michael A. Miranda and Michael A. Feinstein of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful termination of employment, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated July 14, 2014, which denied his motion for summary judgment on the complaint and granted the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Pursuant to the election of remedies doctrine, the filing of a complaint with the New York State Division of Human Rights (hereinafter the Division) precludes the commencement of an action in the Supreme Court asserting the same discriminatory acts (see Executive Law § 297[9]; Wrenn v Verizon, 106 AD3d 995, 995-996; Ehrlich v Kantor, 213 AD2d 447; Craig-Oriol v Mount Sinai Hosp., 201 AD2d 449, 450). However, Executive Law § 297(9) provides that, " where the [D]ivision has dismissed such complaint on the grounds of administrative convenience, . . . such person shall maintain all rights to bring suit as if no complaint had been filed with the [D]ivision'" (Wrenn v Verizon, 106 AD3d at 995, quoting Executive Law § 297[9]; see Matter of James v Coughlin, 124 AD2d 728, 729-730).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint. They adduced evidence that the complaint in this action is based on the same allegedly discriminatory conduct asserted in complaints the plaintiff filed with the Division (see Executive Law § 297[9]; Matter of Nizamuddeen v New York City Tr. Auth., 140 AD3d 880; Matter of James v Coughlin, 124 AD2d at 729-730; see also Wrenn v Verizon, 106 AD3d at 995-996; Ehrlich v Kantor, 213 AD2d at 447; Craig-Oriol v Mount Sinai Hosp., 201 AD2d at 450), and that the Division dismissed those complaints on the merits and not for mere administrative convenience (see Wrenn v Verizon, 106 AD3d at 996). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint on the ground that this action is barred by the election of remedies doctrine.

In light of our determination, the plaintiff's remaining contentions have been rendered academic.

BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court