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

998
CA 11-00470
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.


IN THE MATTER OF ST. MATTHEW LUTHERAN CHURCH,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS,
RESPONDENT-APPELLANT.


CAROLINE J. DOWNEY, BRONX (MICHAEL K. SWIRSKY OF COUNSEL), FOR
RESPONDENT-APPELLANT.

CHIACCHIA & FLEMING, LLP, HAMBURG (ANDREW P. FLEMING OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Joseph R. Glownia, J.), entered May 17, 2010 in a
proceeding pursuant to CPLR article 78. The judgment granted the
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: In this CPLR article 78 proceeding, respondent
appeals from a judgment granting the petition seeking to prohibit it
from taking further action on a discrimination complaint filed by the
former principal of the school operated by petitioner. We agree with
respondent that Supreme Court erred in granting the petition. It is
well established that “the extraordinary remedy of prohibition does
not . . . lie to interfere with proceedings before [respondent],”
inasmuch as the “[r]emedy for asserted error of law in the exercise of
[respondent’s] jurisdiction or authority lies first in administrative
review and following exhaustion of that remedy in subsequent judicial
review pursuant to section 298 of the Executive Law” (Matter of Tessy
Plastics Corp. v State Div. of Human Rights, 47 NY2d 789, 791; see
Matter of Newfield Cent. School Dist. v New York State Div. of Human
Rights, 66 AD3d 1314, 1315-1316). Further, “a challenge to a nonfinal
order of [respondent] is not available unless there is a showing of
‘futility of the administrative remedy[,] irreparable harm in the
absence of prompt judicial intervention[] or a claim of
unconstitutional action’ ” (Newfield Cent. School Dist., 66 AD3d at
                                 -2-                           998
                                                         CA 11-00470

1316), and that is not the case here (see Matter of Diocese of
Rochester v New York State Div. of Human Rights, 305 AD2d 1000).




Entered:   October 7, 2011                     Patricia L. Morgan
                                               Clerk of the Court
