        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

709
TP 15-01941
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


IN THE MATTER OF RACHEL FIGUEROA, PETITIONER,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS
AND BUFFALO CITY SCHOOL DISTRICT, RESPONDENTS.


LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (CHARLES MILLER OF COUNSEL),
FOR PETITIONER.

CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX, FOR RESPONDENT NEW YORK
STATE DIVISION OF HUMAN RIGHTS.

GOLDBERG SEGALLA LLP, BUFFALO (KRISTIN K. WHEATON OF COUNSEL), FOR
RESPONDENT BUFFALO CITY SCHOOL DISTRICT.


     Proceeding pursuant to Executive Law § 298 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Catherine R.
Nugent Panepinto, J.], dated November 16, 2015) to review a
determination of respondent New York State Division of Human Rights.
The determination dismissed petitioner’s complaint.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner Rachel Figueroa commenced this proceeding
and petitioner Ashleigh Schwallie commenced a separate proceeding
(Matter of Schwallie v New York State Div. of Human Rights, ___ AD3d
___ [Sept. 30, 2016]) pursuant to Executive Law § 298 seeking to annul
the determination of respondent New York State Division of Human
Rights (Division) dismissing their complaints alleging sexual
harassment and retaliation. At the time of the alleged employment
discrimination, petitioners were employed by respondent Buffalo City
School District (District) at the same school.

     At the outset, we conclude that the District waived its
contention that the petitions should be dismissed for lack of
jurisdiction based upon the alleged failure of petitioners to serve
the District in accordance with CPLR 311 (a) (7). Those objections to
service were raised in the District’s answers, and the District failed
to move to dismiss the petitions on that ground within 60 days after
serving its answers (see CPLR 3211 [e]; Anderson & Anderson, LLP-
Guangzhou v Incredible Invs. Ltd., 107 AD3d 1520, 1521; Matter of
                                 -2-                           709
                                                         TP 15-01941

Resnick v Town of Canaan, 38 AD3d 949, 951). We also reject the
District’s contention that the proceedings were not timely commenced,
inasmuch as the limitations period commenced on the date of service of
the Division’s order and the record does not establish the date of
such service (see Matter of Fantauzzi v New York State Div. of Human
Rights, 113 AD3d 518, 519).

     On the merits, however, we agree with the District that
substantial evidence supports the determination of the Division that
the District is not liable for the coworker’s discriminatory conduct.
“Under the Human Rights Law, an ‘employer cannot be held liable for an
employee’s discriminatory act[s] unless the employer became a party to
[them] by encouraging, condoning, or approving [them]’ ” (Matter of
New York State Div. of Human Rights v ABS Elecs., Inc., 102 AD3d 967,
968, lv denied 24 NY3d 901, quoting Matter of Totem Taxi v New York
State Human Rights Appeal Bd., 65 NY2d 300, 305, rearg denied 65 NY2d
1054). Petitioners failed to establish that the District became a
party to the discriminatory conduct. “Rather, the record establishes
that [the District] ‘reasonably investigated complaints of
discriminatory conduct and took corrective action’ ” (Matter of Gordon
v New York State Dept. of Corr. & Community Supervision, 138 AD3d
1477, 1479).

     Substantial evidence also supports the determination of the
Division that petitioners were not subjected to retaliation for
complaining about unlawful discrimination. Although petitioners
established a prima facie case of retaliation, the District “came
forward with ‘legitimate, independent, and nondiscriminatory reasons
to support its employment decision[s]’ ” (Matter of Childs v New York
State Div. of Human Rights, 57 AD3d 1457, 1458, lv dismissed 12 NY3d
888, 13 NY3d 926, quoting Matter of Miller Brewing Co. v State Div. of
Human Rights, 66 NY2d 937, 938), and petitioners failed to show that
those reasons were pretextual (see Matter of Pace Univ. v New York
City Commn. on Human Rights, 85 NY2d 125, 129).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
