| Matter of Isaksson-Wilder v New York State Div. of HumanRights |
| 2007 NY Slip Op 06681 [43 AD3d 921] |
| September 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of Kimberly Isaksson-Wilder,Petitioner, v New York State Division of Human Rights et al.,Respondents. |
—[*1] Guercio & Guercio, Farmingdale, N.Y. (John P. Sheahan and Kelly Reape of counsel), forrespondent Connetquot Central School District of Islip.
Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner ofthe New York State Division of Human Rights dated September 23, 2005, which adopted therecommendation and findings of an Administrative Law Judge dated January 21, 2004, madeafter a hearing, finding no discriminatory practice, and dismissed the petitioner's administrativecomplaint.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs to the respondent Connetquot Central School District of Islip.
The petitioner filed a complaint with the New York State Division of Human Rights,pursuant to Executive Law § 297 (1), charging Connetquot Central School District of Islip(hereinafter the school district) with an unlawful discriminatory practice in violation of ExecutiveLaw § 296 (1) (a) for allegedly refusing to hire her on the basis of her mental disability. Ina CPLR article 78 proceeding to review a determination of an administrative agency, made aftera hearing at which evidence was taken, pursuant to direction of law, the agency's decision mustbe upheld if it is supported by substantial evidence (see Matter of Pell v Board of Educ. ofUnion Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County,34 NY2d 222, 230-231 [1974]). Substantial evidence in the record supports the finding ofthe New York State Division of Human [*2]Rights (hereinafterthe SDHR) that the individuals responsible for hiring teachers at the school district were unawarethat the petitioner was disabled, and that they did not perceive her to be disabled. Although thepetitioner challenges the SDHR's determination based on conflicting witness testimony at thehearing, "it is the function of the administrative agency, not the reviewing court, to weigh theevidence or assess the credibility of the witnesses" (Matter of Curto v Cosgrove, 256AD2d 407, 408 [1998]).
The petitioner's remaining contentions are without merit or are improperly raised for the firsttime in this proceeding, and thus not properly before the Court (see Matter of All CountyReady Mix Corp. v Martinez, 23AD3d 554 [2005]). Spolzino, J.P., Skelos, Lifson andBalkin, JJ., concur.