The following electronically filed papers were read upon these motions: Notice of Motion/Order to Show Cause 1-23, 26; 27-35 Answering Papers 41-49; 50-51, 55-86 Reply 53 For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner commenced this action to prohibit the New York State Division of Human Rights (DHR) from holding any further proceedings related to a complaint filed by respondent Susan Monahan on behalf of her deceased daughter, annulling and vacating the DHR’s Determination/Reconsideration Decision/Preliminary Conference Notice, dismissing Susan Monahan’s complaint, and awarding petitioner costs and disbursements of this proceeding (Motion Sequence 001). Respondent Bellhaven Center for Rehabilitation and Nursing Care (Bellhaven) cross-moves for the same relief (Motion Sequence 002). The petition alleges two causes of action based upon CPLR §§7803 (2) (in excess of jurisdiction) and (3) (determinations affected by an error of law). Petitioner is the medical director of respondent Bellhaven, which is a skilled nursing facility. In a complaint sworn to on December 20, 2019 and filed with the DHR, petitioner and respondent were named as having violated Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. The complaint filed with the DHR was sworn to by Susan Monahan, ostensibly on behalf of her deceased daughter, Alexandra Monahan. The material facts are not in dispute. Alexandra Monahan was employed by Bellhaven as a Licensed Practical Nurse (LPN), from on or about March 2017 until the date of her resignation on September 13, 2019. In late June/early July 2019, Alexandra was granted a leave of absence by Bellhaven for her to enter an inpatient detox and rehabilitation program at the Long Island Center for Rehabilitation. Alexandra ultimately completed the inpatient program on or about August 12, 2019, despite having left the program eight days after entering, contrary to medical advice, and then re-entering the program nine days later, on July 17, 2019. Alexandra resided at a sober facility upon her discharge from the inpatient program. She returned to work at Bellhaven on August 17, 2019, but tendered a letter of resignation on August 31, 2019, stating that her resignation would become effective on September 13, 2019. Sadly, Alexandra died in the emergency department of Long Island Community Hospital on November 16, 2019. Her mother, Susan Monahan, filed a complaint with the DHR more than one month after Alexandra’s death, on or about December 20, 2019, and more than three months after Alexandra ceased her employment with Bellhaven. It is undisputed that Alexandra Monahan never herself filed a complaint with the DHR. Susan Monahan’s complaint alleges that her daughter was sexually harassed and forced to resign her position at Bellhaven, and that Dr. Roche engaged “in a campaign of harassment and intimidation” and “physically and mentally abused her,” to include “verbal and inappropriate touching.” The DHR entertained Susan Monahan’s complaint and Bellhaven submitted a position statement in response to the complaint asserting, inter alia, that Susan Monahan lacked standing to pursue an employment discrimination on behalf of her deceased daughter. Petitioner also submitted a position statement, adopting the arguments set forth in Bellhaven’s position statement and also asserting that the complaint is predicated entirely upon hearsay evidence and petitioner was not Alexandra’s employer. On March 24, 2021, the DHR issued a Determination After Investigation stating that the DHR “has determined that it has jurisdiction in this matter and that PROBABLE CAUSE exists to believe that [Dr. Roche and Bellhaven] have engaged in or are engaging in the unlawful discriminatory practice complained of” (emphasis in original). In that Determination, the DHR also recommended the matter for a public hearing. In May, 2021, Bellhaven and petitioner each moved for reconsideration of the DHR’s determination, maintaining that the Human Rights Law requires the DHR to make a jurisdiction determination before conducting a hearing and cannot defer the issue of jurisdiction to the trier of fact, that an estate administrator does not have standing to file an administrative complaint, and that the DHR failed to conduct a fair and impartial investigation. On December 28, 2021, the DHR issued the Reconsideration Decision denying Bellhaven’s and petitioner’s motions for reconsideration. In its Reconsideration Decision, the DHR declared that “there are material issues of fact involved which are best resolved at a public hearing before an administrative law judge, where testimony is taken under oath, witnesses are subject to cross-examination and a full record is made. These issues include, but are not limited to, whether the Complainant has standing to file a complaint on behalf of her deceased daughter who had not filed prior to her death.” This Court agrees with the Reconsideration Decision to the extent that the issue of whether Susan Monahan has standing to file a complaint on behalf of her deceased daughter who had not filed before her death is a “material issue;” however, in this Court’s view it is not only material, but the threshold issue in this case since it is jurisdictional in nature. Furthermore, the questions of standing/jurisdiction is not a question of fact as asserted by the DHR, but one of law that must be determined by this Court. Petitioner commenced this proceeding on August 16, 2022, and on August 17, 2022, this Court issued an Order to Show Cause temporarily restraining the DHR from conducting any further proceedings on Susan Monahan’s complaint pending final determination of this proceeding. Bellhaven joins in petitioner’s contentions that the DHR failed to comply with its statutory requirement that it determine whether it has jurisdiction within 180 days of the filing of a complaint, and only if jurisdiction exists can the DHR determine whether there is probable cause; that Susan Monahan is not a “aggrieved person” within the meaning of the Human Rights Law §297; that the absence of a living claimant renders the purported evidence inadmissible hearsay that is not subject to cross-examination, and that no further proceedings on the complaint should take place until the issue of jurisdiction is determined. Petitioner in this matter contends that he is entitled to a writ of prohibition because the DHR lacks jurisdiction over the employment discrimination complaint filed by the estate of the decedent. “A petition seeking Article 78 relief in the nature of prohibition should be granted upon a showing that a ‘body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction’ (CPLR 7803 [2]). Our precedents emphasize, however, that such relief is ‘extraordinary’ and should only be granted in limited circumstances” (internal citation omitted) (Matter of Garner v. New York State Dept. of Correctional Servs., 10 NY3d 358, 361 [2008]). “[A] petitioner seeking a writ of prohibition must demonstrate that: (1) a body or officer is acting in a judicial or quasi-judicial capacity, (2) that body or officer is proceeding or threatening to proceed in excess of its jurisdiction and (3) petitioner has a clear legal right to the relief requested. But, even if those facts are established, the writ may still be denied if Supreme Court, in exercising its discretion, concludes the remedy is not warranted because, for example, the harm allegedly suffered is not sufficiently grave or because other proceedings in law or equity could correct the alleged error (Id. at 361-362, citing Town of Huntington v. New York State Div. Of Human Rights, 82 NY2d 783, 786 [1993]). It is undisputed, including in the DHR’s opposition papers, that the DHR acts in a quasi-judicial capacity (see Silver v. Mohasco Corp., 94 AD2d 820, 822 [3d Dept 1983, aff'd 62 NY2d 741 [1984]). Human Rights Law §297(2)(a) provides in relevant part that “[w]ithin one hundred eighty days after a complaint is filed, the division shall determine whether it has jurisdiction and, if so, whether there is probable cause to believe that the person named in the complaint. . .has engaged or is engaging in any unlawful discriminatory practice. If it finds with respect to any respondent that it lacks jurisdiction or that probable cause does not exist, the commissioner shall issue and cause to be served on the complainant an order dismissing such allegations of the said complaint as to such respondent.” Here, the December 28, 2021 Reconsideration Determination makes clear that more than two years after Susan Monahan filed the complaint the DHR has not determined whether it has jurisdiction despite its claim that “it has jurisdiction in this matter” made approximately nine months earlier, on March 24, 2021. The December 28, 2021 Reconsideration Determination passing on the determination of jurisdiction/standing to a factual hearing completely undermines the March 24, 2021 Determination After Investigation in that regard, especially considering that both the petitioner and Bellhaven argued this point to the DHR from inception. As noted, the threshold question of law here is whether the administrator of an estate has authority to initiate an administrative claim before the DHR when the former employee never filed a complaint prior to death. If the answer to that question is no, which this Court determines is the case, then the DHR is without any power, and in excess of its jurisdiction, to adjudicate Susan Monahan’s complaint. The Human Rights Law §297 (1) provides that “[a]ny person claiming to be aggrieved by an unlawful discriminatory practice may, by himself or herself or his or her attorney-at-law, make, sign and file with the division a complaint in writing under oath or by declaration which shall state the name and address of the person alleged to have committed the unlawful discriminatory practice complained of and which shall set forth the particulars thereof and contain such other information as may be required by the division.” There is no question that Susan Monahan is/was not personally aggrieved by any unlawful discriminatory practice alleged to have been committed by petitioner or by Bellhaven. Susan Monahan was not employed either by the petitioner or by Bellhaven and Susan Monahan’s complaint makes plain that the alleged conduct was not directed at her; accordingly, she is not an “aggrieved person” within the meaning of the Human Rights Law (see Weinstein v. Hospital for Joint Disease and Medical Center, 53 AD2d 627 [2d Dept 1976] [spouse of employee alleging employment discrimination dies not have standing under Human Rights Law §297 (9) since spouse is not personally and adversely affected]). The only provision in the applicable statute providing for someone other than the aggrieved person to file a complaint is stated to be the commissioner of labor, or the attorney general, or the executive director of the justice center for the protection of people with special needs. There is no provision in the Human Rights Law for the executor of an estate to initiate a compliant when the former employee/aggrieved person predeceased the making of a complaint. When the language of a statute is clear an unambiguous, a court should give effect to the plain meaning of the words and not create obligations, conditions, or liability where there is none (see Orens v. Novello, 99 NY2d 180, 185 [2002]). When the Legislature lists an exception in a statute, namely here for people with special needs, items not specifically referenced are deemed to have been excluded, as in the case of estate representatives being permitted to initiate DHR complaints (Weingarten v. Board of Trustees of the New York City Teachers’ Retirement System, 98 NY2d 575, 583 [2002]). Moreover, the DHR’s own rules (9 NYCRR §465.3 [a][1]) designate who may file a complaint; none of the six designations apply to Susan Monahan, and none authorize the filing of a complaint by an executor of an estate of a deceased person who never filed a complaint prior to death. The fact that Alexandra Monahan herself never filed a complaint with the DHR prior to her death differentiates the case at bar from cased involving complaints that were initiated by the employee who died during the course of the DHR proceeding (see Mendoza v. State Division of Human Rights, 74 AD2d 508 [1st Dept 1980]), or where an employer’s owner died during the pendency of the DHR proceedings (see Pat’s Carpet Outlet v. State Executive Department, Division of Human Rights, 244 AD2d 338 [2d Dept 1007]). This Court’s conclusion that the DHR lacks jurisdiction over complaints initiated by estate representatives finds support from federal court cases that have considered the question in the context of the filing of complaints with the Equal Employment Opportunity Commission (EEOC), which is the DHR’s federal counterpart (Hardy v. Powell, 314 FSupp3d 359 [DC 2018]; Wright v. United States, 914 FSupp2d 837 [SD Miss 2012]). The EEOC itself has also concluded that while a federal employee’s EEO claims may survive the death of the complainant in certain instances, as where a deceased complainant initiates the process prior to death, the deceased complainant’s estate may file the formal complaint, but where the process was not initiated by the deceased complainant prior to his or her death, the estate may not initiate a complaint (see Estate of Krinsky v. Potter, 2007 WL 715558 [EEOC 2007]; Estate of Anderson v. Potter, 2003 WL 22288515 [EEOC 2003]). The DHR’s reliance upon EPTL §11-3.2 (b) is not applicable and does not serve to permit Susan Monahan to initiate an administrative proceeding with the DHR. Although a claim does not abate upon death, the DHR’s reliance upon Mendoza, supra for the contention that Susan Monahan has standing to file a complaint on behalf of her deceased daughter when her daughter never made any complaint prior to her death is misplaced. In Mendoza, Ofelia Mendoza initiated her complaint while she was alive, but she died during the pendency of the DHR proceeding. As noted, that is not the case here. Based upon the foregoing, this Court reaches the conclusion that the DHR acted in excess of its jurisdiction by failing to determine if it had jurisdiction before it rendered its determination of probable cause, nor could the DHR determine that it had jurisdiction to entertain Susan Monahan’s complaint since the Human Rights Law does not vest the DHR with jurisdiction to hear and determine the complaint of an estate administrator initiated by the estate and not by the aggrieved party. Simply state, Susan Monahan has no standing to file the complaint under the circumstances presented to this Court. In addition, the petitioner has demonstrated a clear legal right to the relief requested based upon the foregoing analysis, and because the petitioner, Dr. Roche, was not Alexandra Monahan’s employer (Matter of Central New York Centro, Inc. v. New York State Division of Human Rights, 142 Misc 2d 935 [Sup Ct Onondaga County 1989] [dismissal granted to New York Regional Transportation Authority because the Authority was not the claimant's employer]). This Court further concludes that there are no proceedings in law or equity that could correct the lack of jurisdiction, and that the harm to reputation that would be suffered by petitioner and Bellhaven is sufficiently grave to warrant a writ of prohibition in this matter where the threshold issue of jurisdiction has not been established by the DHR. Notably, the DHR has not responded to petitioner’s assertion that an administrative adjudication rendered against him will cause injury to his professional reputation that cannot be undone by a subsequent determination that the DHR should not have held the hearing in the first place. The DHR’s contention that a writ of prohibition is not available to the petitioner because he failed to exhaust his administrative remedies is unsupported by the cases cited. Although the petitioner points out that the DHR did not comply with the statutory deadlines provided by the Human Rights Law, petitioner does not rely upon that basis for asserting that the DHR lacks jurisdiction to entertain Susan Monahan’s complaint. The petitioner, and Bellhaven, clearly state that the basis for the writ of prohibition and annulment of the determinations issued by the DHR is that Alexandra Monahan never filed a complaint with the DHR, but that the DHR proceeded with the claim anyway, although it lacked jurisdiction. DHR’s contention that petitioner must challenge the jurisdiction issue for what amounts to a third time before the DHR is utterly unpersuasive. As noted by this Court, the issue of jurisdiction/standing in this matter is a question of law, not a factual question. The undisputed facts as set forth by the petitioner and cross-movant establish that Alexandra Monahan never filed a complaint with the DHR prior to her death; therefore, the question requiring determination as a matter of law is whether her mother has standing to initiate a complaint after her daughter’s death. This Court has answered that question of law in the negative. Moreover, the exhaustion of remedies rule “need not be followed, for example, when an agency’s action is challenged as wither unconstitutional or wholly beyond its grant of power” (Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52, 57 [1978]). The DHR’s own December 28, 2021 Reconsideration Determination, concedes that it did not have jurisdiction in March 2021, when it determined that probable cause existed. Accordingly, its new arguments in support of jurisdiction contained in its opposition papers (EPTL, Mendoza, supra, Florida Court of Appeal case) ring hollow considering DHR’s concession that jurisdiction was still undetermined as of December 28, 2021. Thus, the DHR’s March 2021 probable cause determination and its subsequent determination to deny the motions for reconsideration were issued in excess of the DHR’s jurisdiction and must be annulled because of lack of jurisdiction to make such determinations, which establishes that those determinations were affected by an error of law due to violation of the plain language of the Human Rights Law requiring the establishment of jurisdiction prior to the determination of probable cause. Thus, this Court determines that the petitioner and Bellhaven have established entitlement to a writ prohibiting the DHR from subjecting petitioner to any further proceedings in connection with Susan Monahan’s complaint dated December 20, 2019, and that the DHR’s Determination of probable cause, the Reconsideration Determination denying the motions for reconsideration made by petitioner and Bellhaven, and the preliminary conference notice be annulled and vacated. Judgment is granted pursuant to CPLR §§7803 (2) and 7803 (3). Motion Sequences 001 and 002 are each granted. Any all requests for costs and disbursements of this proceeding are denied. The foregoing constitutes the Decision and Order of this Court. Dated: November 7, 2022
