

Matter of Miller v New York State Div. of Human Rights (2015 NY Slip Op 05193)





Matter of Miller v New York State Div. of Human Rights


2015 NY Slip Op 05193


Decided on June 17, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 17, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
HECTOR D. LASALLE, JJ.


2014-02613
 (Index No. 10771/12)

[*1]In the Matter of Jerald Miller, petitioner-respondent,
vNew York State Division of Human Rights, respondent-appellant, et al., respondents.


Caroline J. Downey, Bronx, N.Y. (Michael K. Swirsky of counsel), for respondent-appellant.

DECISION & ORDER
In a proceeding, inter alia, pursuant to Executive Law § 298 to review a determination of the New York State Division of Human Rights dated March 19, 2012, dismissing the petitioner's administrative complaint, the New York State Division of Human Rights appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated January 13, 2014, which, in effect, denied that branch of its motion which was to quash so much of a subpoena duces tecum as demanded the production of its General Counsel's Legal Opinion Nos. 1976-28, 2009-08, 2001-26, and 1997-06 and, upon in camera review of the subject documents, directed their production in redacted form.
ORDERED that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, and that branch of the motion of the New York State Division of Human Rights which was to quash so much of a subpoena duces tecum as demanded the production of its General Counsel's Legal Opinion Nos. 1976-28, 2009-08, 2001-26, and 1997-06 is granted.
"Judicial review of administrative determinations is confined to the facts and record adduced before the agency" (Matter of Yarbough v Franco,  95 NY2d 342, 347 [citation and internal quotation marks omitted]), and disclosure is permitted only by leave of court (see  CPLR 408). Here, the Supreme Court improvidently exercised its discretion in allowing the disclosure of the subject documents, as there is nothing in the administrative record to indicate that the agency relied on them in making the determination under review.
DILLON, J.P., DICKERSON, ROMAN and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


