| Ferrer v New York State Div. of Human Rights |
| 2011 NY Slip Op 01583 [82 AD3d 431] |
| March 3, 2011 |
| Appellate Division, First Department |
| Eloisa O. Ferrer, Appellant, v New York State Division ofHuman Rights, Defendant, and Wilson, Elser, Moskowitz Edelman & Dicker, LLP,Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Nancy V. Wright ofcounsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.),entered December 1, 2009, granting defendant-respondent Wilson, Elser, Moskowitz Edelman &Dicker, LLP's (the law firm) cross motion to deny and dismiss the petition to vacate thedetermination of defendant New York State Division of Human Rights (DHR), dated March 4,2009, which found no probable cause to believe that the law firm had engaged in or wasengaging in the unlawful discriminatory practice complained of and dismissed the complaint,unanimously affirmed, without costs.
Petitioner contends that DHR's determination was arbitrary and capricious in that DHR failedto investigate and consider petitioner's claim that she was subjected to a hostile workenvironment by the law firm. However, this claim was not reasonably discernable from thecomplaint petitioner filed with DHR. A claim not raised before an administrative agency may notbe raised for the first time in a CPLR article 78 proceeding (see Matter of Johnson v NewYork State Tax Commn., 117 AD2d 867, 868 [1986]; Matter of Seitelman v Lavine,36 NY2d 165, 170 [1975]).
Moreover, the specific conduct alleged by petitioner in the complaint and petition, if true, islegally insufficient to establish that the workplace was "permeated with 'discriminatoryintimidation, ridicule and insult' that [was] 'sufficiently severe or pervasive to alter the conditionsof [her] employment' " (see Harris v Forklift Systems, Inc., 510 US 17, 21 [1993][citation omitted]). "[I]solated remarks or occasional episodes of harassment will not support afinding of a hostile or abusive work environment" (see Matter of Father Belle CommunityCtr. v New York State Div. of Human Rights, 221 AD2d 44, 51 [1996], lv denied 89NY2d 809 [1997] [citations omitted]). There was no evidence of record which established thatthe specific incidents described in the petition were [*2]anythingmore than isolated, occasional or benign. Concur—Saxe, J.P., Sweeny, Catterson,Freedman and RomÁn, JJ. [Prior Case History: 25 Misc 3d 1201(A), 2009 NY Slip Op51951(U).]