| Matter of Bettina Equities Co. LLC v State of N.Y. Exec. Dept., State Div. of Human Rights |
| 2004 NYSlipOp 05853 |
| July 8, 2004 |
| Appellate Division, First Department |
| In the Matter of Bettina Equities Company LLC et al., Appellants, v State of New York Executive Department, State Division of Human Rights, Respondent. |
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Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered March 7, 2003, which denied petitioner's motion for a preliminary injunction of a pending administrative proceeding, dismissed this proceeding to annul respondent's interim order, dated March 21, 2002, which denied petitioner's motion for summary judgment dismissing the racial discrimination complaint against it, and directed respondent to reschedule the previously scheduled hearing on the complaint, unanimously affirmed, without costs.
The interim order of the Administrative Law Judge, converting petitioner's motion to dismiss the racial discrimination complaint of petitioner's former tenant on res judicata and collateral estoppel grounds to a motion for summary judgment and denying it, was not a final determination within the meaning of CPLR 7801 (1). Nor does it fall within any of the three exceptions to either the rule of finality or the requirement of exhaustion of administrative remedies: futility of the administrative remedy; irreparable harm in the absence of prompt judicial intervention; or a claim of unconstitutional action. Concur—Andrias, J.P., Williams, Friedman, Marlow and Gonzalez, JJ.