                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 31, 2016                     520412
________________________________

In the Matter of NEW YORK
   STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION,
                    Petitioner,
      v                                      MEMORANDUM AND JUDGMENT

NEW YORK STATE DIVISION OF
   HUMAN RIGHTS,
                    Respondent,
                    et al.,
                    Respondents.
________________________________


Calendar Date:    February 10, 2016

Before:    Peters, P.J., Garry, Rose, Devine and Clark, JJ.

                              __________


      Kevin P. Bruen, New York State Department of Corrections
and Community Supervision, Albany (Benjamin H. Rondeau of
counsel), for petitioner.

      Caroline Downey, New York State Division of Human Rights,
New York City (Toni Ann Hollifield of counsel), for New York
State Division of Human Rights, respondent.

                              __________


Rose, J.

      Proceeding pursuant to Executive Law § 298 (transferred to
this Court by order of the Supreme Court, entered in Albany
County) to review a determination of the Commissioner of Human
Rights which, among other things, found petitioner guilty of an
unlawful discriminatory practice based on disability.
                              -2-                520412

      Kenneth W. Howarth suffered from neurocardiogenic syncope,
a condition that caused him to occasionally faint while
performing his duties as a correction officer employed by
petitioner. Howarth fainted as he left work in his car in July
1994, causing an accident, and petitioner placed him on
involuntary leave pending a medical examination pursuant to Civil
Service Law § 72. Because his request for a light-duty
assignment was denied, he was required to exhaust his accumulated
leave time, after which he earned no salary until the medical
unit of respondent Department of Civil Service found him fit and
he was returned to duty in October 1994. Two months later,
Howarth again fainted at work, and petitioner again placed him on
involuntary leave. Petitioner again denied Howarth's request for
a light-duty assignment and terminated his employment in January
1995. Howarth contested his termination under the Civil Service
Law and, in August 1995, he also filed the first of his two
complaints with respondent State Division of Human Rights
(hereinafter SDHR) alleging that petitioner had discriminated
against him on the basis of a disability. In September 1995, a
hearing officer restored him to his job with back pay and
benefits.

      As a result of being out of work, as well as other factors,
Howarth filed for bankruptcy in 1996. In April 1997, he again
fainted at work and was again placed on involuntary leave.
Although he was found fit to return to work by the Department of
Civil Service in June 1997, he was involved in yet another motor
vehicle accident in July 1997 and again placed on involuntary
leave. He then filed the second of these complaints with SDHR
alleging that petitioner had discriminated against him again and
also retaliated against him for his first complaint. Once again,
he was found fit by the Department of Civil Service, he returned
to work in August 1997 with restored pay and benefits, and
ultimately he was promoted to sergeant.

      SDHR did not commence hearings on the 1995 and 1997
complaints until 2004. Although the testimony was neither long
nor complicated, the hearings were not concluded until 2006.
Seven years then passed without a decision. Finally, in 2013, an
Administrative Law Judge (hereinafter ALJ) determined, among
other things, that petitioner had granted light-duty assignments
                              -3-                520412

to employees with disabilities incurred on the job, whereas
employees with disabilities that were not work related – such as
Howarth – were denied light-duty assignments. The ALJ found that
petitioner had discriminated against Howarth by placing him on
involuntary leave under the Civil Service Law, resulting in the
use of leave accruals and leave without pay. The ALJ's
recommended award directed petitioner to pay to the trustee in
bankruptcy any lost wages and benefits that had not been restored
to Howarth for times that he was out of work between July 1994
and August 1997, as well as compensatory damages of $20,000 for
mental anguish, but the extent of the unrestored lost wages and
benefits was not determined. Instead, the Comptroller was
ordered to "perform an accounting" to supply this information and
determine these amounts. Petitioner was also ordered to revise
its policy regarding light-duty assignment and provide
discrimination prevention training to all of its employees. The
Commissioner of Human Rights adopted the ALJ's recommendations in
December 2013 with some modifications not relevant here, and this
proceeding to review the determination ensued.

      Initially, we are unpersuaded by petitioner's argument that
because a public employer has discretion when using Civil Service
Law procedures regarding an employee, SDHR did not have
jurisdiction over this matter. Where it is alleged that such
procedures are used in a discriminatory manner under the Human
Rights Law, SDHR has jurisdiction (see Matter of New York State
Dept. of Correctional Servs. v New York State Div. of Human
Rights, 57 AD3d 1057, 1058-1059 [2008]; see also Matter of State
Div. of Human Rights [Granelle], 70 NY2d 100, 106-107 [1987]).
Further, the issue of whether there was substantial evidence to
support the findings of discrimination and retaliation is not
raised by petitioner in its brief before this Court.

      We must agree, however, with petitioner's primary
contention that the complaints should be dismissed because of
SDHR's delay in processing them. The controlling statute sets
forth time limits, measured in mere days and months, requiring
SDHR to promptly consider and determine discrimination complaints
(see Executive Law § 297). We are well aware that the time
limits in Executive Law § 297 are "directory only" (Matter of
Corning Glass Works v Ovsanik, 84 NY2d 619, 623 [1994] [eight-
                              -4-                520412

year delay]), and that they "exist for the benefit of
complainants and should not be used to . . . shelter those
charged with violating the statute unless there is a showing of
substantial actual prejudice" (id. at 624).

      Nevertheless, the time that elapsed here from the initial
complaint until the Commissioner issued her final order was more
than 18 years. In an agency long known for its troublesome and
excessive delays (see e.g. Matter of Diaz Chem. Corp. v New York
State Div. of Human Rights, 91 NY2d 932 [1998] [14-year delay];
Matter of Louis Harris & Assoc. v deLeon, 84 NY2d 698 [1994]
[seven-year delay]), this delay of nearly a generation has
plumbed a new depth of administrative inertia that has, in our
view, reached the point of being "jurisprudentially intolerable"
(Matter of Diaz Chem. Corp. v New York State Div. of Human
Rights, 91 NY2d at 935 [Bellacosa, J., concurring]). Indeed, in
a case decided by SDHR six years quicker than this one, we
"decr[ied] SDHR's egregious delays," stating that "they were an
abuse of SDHR's discretion that prejudiced all parties" (Matter
of New York State Dept. of Labor [Unemployment Ins. Appeal Bd.] v
New York State Div. of Human Rights, 71 AD3d 1234, 1238-1239
[2010], lv denied 15 NY3d 714 [2010]).

      In weighing the impact of this delay, we take note of the
fact that the complainant will receive no financial benefit here,
inasmuch as the order directs payment to the trustee in
bankruptcy. Although not in the record, it was represented at
oral argument that Howarth is now deceased. Furthermore, SDHR
has made no effort to offer any explanation or excuse for this
apparently unexplainable and indefensible delay. There is no
allegation that petitioner contributed to the delay, and the
complaints presented issues that were relatively simple and
straightforward. Seemingly, the most difficult part of the
matter would have been reconstructing the unrestored lost wages
and benefits for the various times that Howarth was out of work.
Rather than make these determinations, however, the Commissioner
ordered the Comptroller to do so. Nor is there any reason to
believe that, with Howarth now deceased, the Comptroller will be
able to gather the information necessary to determine these
                                 -5-                  520412

amounts.1

      Finally, the Commissioner directed petitioner to draft a
new light-duty assignment policy and embark on a discrimination
prevention training program for all of its employees. As
petitioner contends, however, this directive is based on
petitioner's policy in effect two decades ago when the complaints
were filed. Its imposition now, without regard to petitioner's
currently evolved policy and subsequent training, lacks support
in the record and creates potentially expensive, time-consuming
and unnecessary action by petitioner. Under these circumstances,
we find that there is substantial prejudice to petitioner
occasioned by this intolerable delay. Moreover, such delay is an
abuse of SDHR's discretion, and its determination must be
annulled (see Matter of New York State Dept. of Labor
[Unemployment Ins Appeal Bd.] v New York State Div. of Human
Rights, 71 AD3d at 1238-1239; Matter of Heller v Chu, 111 AD2d
1007, 1008-1009 [1985], appeal dismissed 66 NY2d 696 [1985]).
The remaining arguments are academic.

         Peters, P.J., Garry, Devine and Clark, JJ., concur.


      ADJUDGED that the determination is annulled, without costs,
petition granted and complaints dismissed.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court


     1
        Although the Commissioner cited no statutory or other
authority giving her the power to order the Comptroller to
conduct yet another administrative inquiry to gather the
necessary information, we need not decide this issue as we are
annulling the Commissioner's determination on other grounds.
