Roche v. N.Y.S. Div. of Human Rights

178 N.Y.S.3d 680

In the Matter of the Application of Robert ROCHE, M.D., Petitioner, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

v.The NEW YORK STATE DIVISION OF HUMAN RIGHTS, Bellhaven Center for Rehabilitation and Nursing Care, and Susan Monahan, as Administrator of the Estate of Alexandra Monahan, Respondents.

Index No. 616220/2022

Supreme Court, Suffolk County, New York.

Decided on November 7, 2022

Jessica Baquet, Esq., Ruskin Moscou Faltischek, P.C., 1425 RXR Plaza, East Tower, 15th Floor, Uniondale, NY 11556, For Petitioner

Aaron M. Woskoff, Esq., New York State Division of Human Rights, 1 Fordham Plaza, Fourth Floor, Bronx, NY 10458, For Respondent NYS DHR

Adam G. Guttell, Esq., Jackson Lewis P.C., 58 South Service Road, Ste. 410, Melville, NY 11747, For Respondent Bellhaven Center for Nursing and Rehabilitation Care

No appearance by Susan Monahan as Executor of the Estate of Alexandra Monahan

Carmen Victoria St. George, J. 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 N.Y.3d 358, 361, 859 N.Y.S.2d 590, 889 N.E.2d 467 [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, 859 N.Y.S.2d 590, 889 N.E.2d 467, citing Town of Huntington v. New York State Div. Of Human Rights , 82 N.Y.2d 783, 786, 604 N.Y.S.2d 541, 624 N.E.2d 678 [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 A.D.2d 820, 822, 462 N.Y.S.2d 917 [3d Dept. 1983], aff'd 62 N.Y.2d 741, 476 N.Y.S.2d 822, 465 N.E.2d 361 [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,...