The following electronically-filed papers were read upon this motion: Notice of Motion/Petition 1-10 Answering Papers 11-20 Reply Decision/Order Petitioners move this Court for an Order finding that the decision of the New York Division of Human Rights (DHR) in denying their request to transfer the administrative proceeding to Supreme Court was arbitrary, capricious and an abuse of discretion, compelling the DHR to transfer the complaint made by Gary Sandefur to Supreme Court, Suffolk County, and to award attorneys’ fees, costs, and disbursements of this action to petitioners. The DHR opposes the requested relief and seeks dismissal of the instant proceeding. Gary Sandefur has not submitted any papers in response to the instant petition. Based upon the submitted papers, including the DHR’s answer, and the certified administrative record annexed thereto, the petitioners’ requests are denied in their entirety and the petition is dismissed. The underlying complaint filed by Gary Sandefur on April 27, 2020 alleges that housing discrimination was committed by petitioners because of Sandefur’s disability and source of income that would be used to pay the rent at petitioners’ apartment complex. Sandefur’s complaint was investigated, and a written finding of probable cause was issued on Sandefur’s complaint. The submitted affidavit of service establishes that the determination of probable cause was sent not only to the petitioners, but also to petitioners’ counsel on January 12, 2021. The Court notes that, based upon the submitted administrative record, petitioners’ counsel had been in contact with the DHR since at least October 2020. Following service of the determination of probable cause, the DHR did not receive the form notice entitled “Notice of Intention to Change Forum” from petitioners’ counsel until April 14, 2021. In response to the untimely notice to change forum, the DHR advised petitioners’ counsel by letter dated April 26, 2021 that the request was time-barred pursuant to Human Rights Law §297.9, which reads in pertinent part that “[a]ny party to a housing discrimination complaint shall have the right within twenty days following a determination of probable cause pursuant to subdivision two of this section to elect to have an action commenced in a civil court…” (emphasis added). The statutory time period for a change of forum expired on February 1, 2021. In an April 27, 2021 email from petitioners’ counsel sent in response to the rejection of the request for a forum change as untimely, petitioners’ counsel wrote, “My name is Jesse Siegel, and I am an attorney with Somer & Heller. We are in receipt of your response and believe it has been made in error. Firstly, due to COVID we believe our right to election of a civil action should be granted based upon the extraordinary circumstances herein. Secondly, please see the attached correspondence from the Division of Human Rights, which only speaks of the Complainant being restrained for election of a civil matter within 20 days. The document does not reference a time limit for the Respondents. Unfortunately, should you not agree to change course, we will have no choice but to bring Article 78 proceedings for each of these improper denials.” Aside from these statements, no detail as to how COVID impacted the right of election of a civil action. Furthermore, counsel’s interpretation of the statutory time limit is belied by the language of Human Rights Law §297.9. On May 12, 2021, the DHR responded in writing to petitioners’ counsel, standing by its April 26, 2021 letter denying petitioners’ request as untimely. In that May 2021 letter, the DHR explained that the Governor’s Executive Orders that tolled statutory periods in 2020 expired on November 3, 2020, and since the DHR had not even issued its probable cause determination until January 12, 2021, any tolling afforded by the Executive Orders did not apply, as the right to request a forum selection had not even accrued until January 12, 2021. This Court agrees with the DHR’s analysis of the Governor’s Executive Orders and their inapplicability to this matter. Notwithstanding the circumstances, the DHR offered petitioners the opportunity to present “any additional factors that would justify the Division honoring their requests.” Despite the fact that the DHR was willing to review any additional information submitted by petitioners in consideration of their late request for a forum change, it is apparently undisputed that the petitioners did not avail themselves of that opportunity; rather, they chose to follow through on their warning to bring this Article 78 proceeding, which was filed on August 9, 2021. Despite all of the prior communication between the petitioners’ counsel and DHR, for the first time in the instant petition, petitioners claim that their counsel “did not receive a copy of these documents until March 6, 2021. Please note that the notice is alleged to have been sent to Stanley J. Somer’s attention at 2171 Jericho Turnpike, Suite 350, Commack, New York 11725. The firm has not resided at that office for over two years. Our correct address is 5036 Jericho Turnpike, Suite 301, Commack, NY 11725.” Notably, there is no assertion made that the petitioners themselves failed to receive the DHR’s January 12, 2021 notice of a determination of probable cause, nor did petitioners’ counsel make any such assertion during the exchange of communication prompted by the DHR’s rejection of the forum selection form in April 2021. In fact, petitioners’ form notice date April 13, 2021 seeking removal to a court of competent jurisdiction did not provide any explanation for the late notice. When provided the opportunity by the DHR in May 2021 to present “any additional factors that would justify the Division honoring their requests” for a forum change, petitioners/their counsel remained silent. Even if petitioners/petitioners’ counsel did not receive the DHR’s notice until March 6, 2021, their notice/request to change the forum was still filed more than twenty days later, specifically approximately five and one-half weeks after March 6, 2021, and therefore still in violation of the applicable provision of the Human Rights Law. Accordingly, the DHR’s rejection of petitioners’ request to transfer the matter to a court of competent jurisdiction was not arbitrary, capricious, or an abuse of discretion; rather, the rejection was soundly and squarely based upon Human Rights Law §297.9. There is also no basis upon which to compel the DHR to transfer the complaint made by Gary Sandefur to Supreme Court, Suffolk County. “Mandamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought. That is not the case in this instance” (Matter of Legal Aid Society of Sullivan County, Inc. v. Scheinman. 53 NY2d 12, 16 [1981]). The petitioners have utterly failed to demonstrate a clear legal right to the relief requested because they failed to timely file their notice of intent to change forum, in contravention of the applicable law (see Matter of Von Maack v. Baynes, 159 AD3d 1012 [2d Dept 2018]). The Court further notes that the administrative hearing on this matter has not yet been held before the presiding administrative law judge. Should the petitioners be aggrieved by the final order following a hearing, petitioners may then seek judicial review; however, the time to elect a judicial remedy at this juncture has long passed, even if measured from March 6, 2021. Accordingly, petitioners should proceed with the administrative proceedings. There is also no basis to award petitioners attorneys’ fees and or costs and disbursements of this action; therefore that request is denied. The petition is hereby dismissed in its entirety, and this action shall be marked disposed. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [X] NON-FINAL DISPOSITION [ ] Dated: December 2, 2021
