| Matter of Lester v New York State Off. of Parks, Recreation & HistoricPreserv. |
| 2009 NY Slip Op 01651 [60 AD3d 680] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 55—In the Matter of Roy J. Lester,Appellant, v New York State Office of Parks, Recreation & Historic Preservation et al.,Respondents. |
—[*1] [*2]Andrew M. Cuomo, Attorney General, New York, N.Y.(Richard Dearing and Richard O. Jackson of counsel), for respondent New York State Office ofParks, Recreation & Historic Preservation.
In a proceeding pursuant to Executive Law § 298 to review a determination of theNew York State Division of Human Rights, dated December 7, 2007, which dismissed thepetitioner's complaint upon a finding that there was no probable cause to believe that therespondent New York State Office of Parks, Recreation & Historic Preservation engaged in anunlawful discriminatory practice, the petitioner appeals from a judgment of the Supreme Court,Nassau County (Galasso, J.), entered March 21, 2008, which dismissed the petition astime-barred.
Ordered that the judgment is affirmed, with costs.
The 57-year-old petitioner claimed that the respondent New York State Office of Parks,Recreation & Historic Preservation practiced illegal age discrimination when, on several testingdates, due to his refusal to wear the State issued "speedo" swimsuit, he was not permitted to takethe requalification test to be rehired as a seasonal lifeguard at Jones Beach State Park, andthereafter also was not permitted to take the test for those seeking to be newly hired aslifeguards. The State Division of Human Rights issued a determination finding no probablecause for his action. Sixty-two days after the order was served, the petitioner commenced thisproceeding pursuant to Executive Law § 298.
A proceeding to review a determination of the New York State Division of Human Rightsmust be initiated within 60 days after service of the order upon the party aggrieved by it (seeExecutive Law § 298). Contrary to the petitioner's contention, his time to commencethe proceeding was not extended by CPLR 2103, which provision for additional time for serviceby mail is expressly restricted to service "in a pending action" (Matter of Fiedelman v NewYork State Dept. of Health, 58 NY2d 80, 82 [1983]; see Matter of Gil v New York State Div. of Human Rights, 17 AD3d365 [2005]; Matter of LumbermensMut. Cas. Co. v City of New York, 5 AD3d 684 [2004]). Consequently, the SupremeCourt properly dismissed the petition as time-barred. Covello, J.P., Angiolillo, Belen andChambers, JJ., concur.