| Matter of Lipani v New York State Div. of Human Rights |
| 2008 NY Slip Op 08739 [56 AD3d 560] |
| November 12, 2008 |
| Appellate Division, Second Department |
| In the Matter of Anell Lipani et al., Petitioners, v NewYork State Division of Human Rights et al., Respondents. |
—[*1] Somer & Heller, LLP, Commack, N.Y. (Michael C. Marcus of counsel), for respondentBretton Woods Condominium VIII.
Proceeding pursuant to Executive Law § 298 to review a determination of the NewYork State Division of Human Rights dated August 6, 2007, which adopted an alternativeproposed order dated July 11, 2007, rejecting the recommendation of an administrative law judgedated June 12, 2007, made after a hearing, found that Bretton Woods Condominium VIII hadtaken reasonable steps to accommodate the disability of John Lipani in accordance with theHuman Rights Law, and dismissed the administrative complaint.
Adjudged that the petition is granted, on the law, with costs, the determination is annulled,the administrative complaint is reinstated, and the matter is remitted to the New York StateDivision of Human Rights for further proceedings consistent herewith.
The New York State Division of Human Rights (hereinafter the SDHR) dismissed theadministrative complaint of Anell Lipani, individually and as administrator of the estate of JohnLipani, and Long Island Housing Services, Inc. (hereinafter LIHS), who allegedly sustaineddamages by virtue of the failure of Bretton Woods Condominium VIII to provide reasonablehandicapped parking accommodations, in accordance with Executive Law § 298, for JohnLipani, who was disabled.[*2]
Under most circumstances, judicial review of anadministrative determination made after a hearing required by law, and at which evidence wastaken, is limited to whether that determination is supported by substantial evidence (seeCPLR 7803 [4]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d176, 179 [1978]; Matter of 105Northgate Coop. v Donaldson, 54 AD3d 414, 416 [2008]; Matter of New Venture Gear Inc. v NewYork State Div. of Human Rights, 41 AD3d 1265, 1266 [2007]). However, such anadministrative determination is arbitrary and capricious when it exceeds the agency's statutory"authority or [is made] in violation of the Constitution or laws of this State" (Matter of Pasieka v New York City Tr.Auth., 31 AD3d 769, 770 [2006]; see Matter of New York City Dept. of Envtl.Protection v New York City Civ. Serv. Commn., 78 NY2d 318, 324 [1991]; Matter of New York State Tenants &Neighbors Coalition, Inc. v Nassau County Rent Guidelines Bd., 53 AD3d 550, 552[2008]). Such an arbitrary administrative determination requires reversal, on the law, "eventhough there is in the record substantial evidence to support the determination made" (Matterof Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 520 [1985]).
On the record presented, the SDHR improperly admitted into evidence the parties' attempts atconciliation and the conciliation agreement itself, which was made after the filing of theadministrative complaint with the SDHR, thereby violating Executive Law § 297 (4) (a).
The SDHR must reconsider the administrative complaint and the evidence before it, withoutreference to these attempts at conciliation and the conciliation agreement, and render a newdetermination thereafter.
Accordingly, the SDHR's dismissal of the petitioners' administrative complaint must beannulled as arbitrary and capricious and the matter remitted to the SDHR for further proceedingsconsistent herewith (see State Div. of Human Rights v Human Rights Commn. of Syracuse &Onondaga County, 79 AD2d 181 [1981]). Skelos, J.P., Angiolillo, Balkin and Leventhal, JJ.,concur.