Petitioner, Union Endicott Central School District, commenced this Article 78 proceeding for a writ of prohibition to prohibit respondent, New York State Division of Human Rights, from conducting an investigation and/or hearing into a complaint made by Sylvia R. Malvasio o/b/o S.M., a minor child against petitioner. Petitioner argues that the respondent, New York State Division of Human Rights, has no jurisdiction with respect to this matter on the grounds that petitioner is not an education corporation or association as those terms are defined in Human Rights Law § 296 (4). Respondent, the State Division of Human Rights, opposes the application.

On May 28, 2010, this court held a telephone conference with counsel and thereafter

issued an Order to Show Cause with a temporary restraint preventing respondent from proceeding with the underlying complaint. This matter was deemed submitted as of the return date of June 25, 2010.

Respondent Malvasio filed a complaint with the State Division of Human Rights (hereinafter "SDHR") alleging petitioner Union Endicott Central School District (hereinafter "School District") violated the Human Rights Law by failing to take appropriate action after her daughter, an African-American student at Union Endicott High School, was assaulted by a white student.

The School District seeks to prohibit SDHR from conducting an investigation and hearing into said complaint, as well as for dismissal of the Malvasio complaint on the grounds that SDHR is without jurisdiction to proceed.

In opposition, respondent SDHR argues that the petition must be dismissed due to petitioner's failure to have exhausted its administrative remedies. Stated another way, SDHR argues that whether the School District is subject to SDHR's authority is a matter of fact to be determined by SDHR in the first instance and that such issue may be raised in the hearing by petitioner and that SDHR's decision on such issue would be eventually subject to an Article 78 review after a hearing.

In reply, petitioner argues that it will suffer extreme prejudice by way of the costs associated in having to respond to any SDHR investigation and hearing preparation.

The Court of Appeals has described a writ of prohibition as an extraordinary remedy [*2]available only "[t]o prevent or control a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction [citations omitted] and then only when the clear legal right to relief appears and, in the court's discretion, the remedy is warranted [citations omitted]" (Schumer v Holtzman, 60 NY2d 46, 51 [1983]; CPLR § 7803 [2]). In other words, a writ of prohibition prevents the exercise of jurisdiction in the absence of subject matter jurisdiction. It is well-settled that the writ is not available to correct common procedural or substantive errors and will not lie where its proponent has access to another adequate legal remedy (Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993]). A court should exercise its discretion in determining whether a writ should be granted based on such factors as the gravity of the potential harm caused by the threatened excess of power and whether other proceedings could correct the flaw (Id.). The Court of Appeals has stated that a writ of prohibition is not available to stop SDHR from conducting an investigation because the "[r]emedy for asserted error of law in the exercise of that 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 [1979]). Moreover, "[a] challenge to a nonfinal order of SDHR 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' [citations omitted]" (Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 AD3d 1314, 1316 [3rd Dept 2009]).

Here, the parties are debating the applicability of Executive law § 296 (4) which states, in pertinent part, as follows:

[i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant of the provisions of article four of the real property tax law to deny the use of its facilities to anyone person otherwise qualified, or to permit the harassment of any student or applicant, by reason of his...sex....

(Emphasis added).

Petitioner School District argues it is not an education corporation or association under Executive Law § 296 (4) meaning that SDHR does not have jurisdiction to proceed against public school districts as concerns students. To the contrary, SDHR argues that it has subject matter jurisdiction over complaints alleging discrimination against public school students or, at the least, the jurisdiction to make that determination in the first instance.

It is well-settled that SDHR was created by statute to hear and determine allegations of unlawful discriminatory practices defined in New York's Executive Law § 296-a. Moreover, SDHR, like any court or body, whether of limited or unlimited jurisdiction, has the initial jurisdiction to make a determination whether a request for relief made to it falls within its jurisdictional ambit. In making that initial determination, SDHR must "[d]etermine whether it has jurisdiction and, if so, whether there is probable cause to believe that the person named in the [*3]complaint...has engaged or is engaging in an unlawfully discriminatory practice" (Executive Law § 297[2]).

The parties argue the applicability or lack thereof of several cases including

Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342 [2nd Dept 2009], lv denied 14 NY3d 710 [2010]; Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 AD3d 1314 [3rd Dept 2009]; and Matter of the Application of North Syracuse Central School District, Index No. 2009-7473, Hon. Brian F. DeJoseph, December 8, 2009.

In East Meadow, the Second Department found that a school district is not an "'[e]ducation corporation or association' within the meaning of Executive Law § 296 (4)" (East Meadow, 65 AD2d at 1344). By way of background, in East Meadow, SDHR had found probable cause warranting a public hearing relative to a complaint that a school district did not have a service dog policy. In a related matter, the district court denied a request for a preliminary injunction, and the school district filed an Article 78 challenge to SDHR's denial of reconsideration of its probable cause finding. Upon review, the Second Department granted the petition finding that the school district was neither an education corporation or association within the meaning of Executive Law § 296 (4).

One month later, the Third Department issued Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 AD3d 1314 (3rd Dept 2009), which involved allegations of gender discrimination by a school district in the discipline of male students following an altercation on a school bus. SDHR undertook an investigation of the complaint despite the school district's refusal to cooperate. SDHR issued an initial determination that it had jurisdiction to conduct the investigations and that probable cause existed regarding a violation of the Human Rights Law. The school district commenced an Article 78 proceeding to attack SDHR's finding of jurisdiction and sought a writ of prohibition preventing SDHR from conducting hearings. The Third Department found that the School District had not exhausted its administrative remedies and should assert its jurisdictional objections in the context of the administrative proceeding (Newfield Cent. School Dist., 66 AD3d at 1316). The Third Department also found that the School District had not demonstrated that the exhaustion of the administrative remedies would be a futile exercise or that it would suffer irreparable harm absent court involvement. In sum, the Third Department concluded that "[w]e find no reason to depart with the traditional rules that require a petitioner to exhaust all available administrative remedies before mounting a challenge to a final order from which it is aggrieved" (Newfield Cent. School Dist, 66 AD3d at 1317). That having been said, however, the Newfield decision contains an intriguing footnote by the Third Department which specifically references the East Meadow case as follows:

[i]t is unclear whether, as a result of that decision, SDHR will take a different position on this issue in the context of the instant proceeding, which further supports the conclusion that the need for the School District to exhaust its administrative remedies is not futile. We note that it is significant that the petitioner in Matter of East Meadow Union Free School Dist. did not seek to [*4]appeal from an interlocutory decision of SDHR - as is the case herein - but rather commenced an Executive Law § 298 proceeding challenging a final determination of SDHR.

(Newfield Cent. School Dist., 66 AD3d at 1317, n 2).

Next, the parties address the trial court decision from Onondaga Supreme Court in Matter of the Application of North Syracuse Cent. School Dist., Index No. 2009-7473, Hon. Brian F. DeJoseph, December 8, 2009. In North Syracuse, the Hon. Brian F. DeJoseph granted a school district's petition permanently enjoining SDHR from proceeding with a complaint against the district, as well as declaring SDHR to be without jurisdiction, that the exhaustion of administrative remedies would be futile, that the district would suffer irreparable harm in the absence of prompt judicial action, and that SDHR was proceeding beyond its grant of power. In reaching this determination, Justice DeJoseph's bench decision acknowledged the Second Department case of East Meadow and Third Department case of Newfield. Justice DeJoseph stated that he expressly declined to follow the Third Department's holding in Newfield, but rather the Second Department's conclusion in East Meadow.

This court has carefully examined the cited case law and the parties' arguments relative thereto. The court finds it is bound by the Third Department's conclusion in Newfield that petitioner's failure to exhaust administrative remedies bars the request for a writ of prohibition. The court further finds that the School District is misreading Newfield or more specifically the footnote contained there. Here, SDHR has not completed its investigation, has not made any determination whether probable cause exists regarding alleged violations of the Human Rights Law, held a hearing, nor made any determination regarding jurisdictional considerations. In the event SDHR does make any perceived adverse findings, then the School District has administrative remedies available under 9 NYCRR § 465 and may present its arguments to the contrary in the context of the administrative hearing with the ability to seek judicial review upon the issuance of a final order.

Nor does the court finds persuasive the School District's contention that it will suffer irreparable harm by way of the costs associated with defending itself at the administrative level. Litigation and/or administrative costs have been found insufficient to justify injunctive relief (Matter of Hurwitz v New York City Commn. on Human Rights, 142 Misc 2d 214, 219 [New York County 1988], affd 159 AD2d 417 [1st Dept 1990], lv denied 76 NY2d 702 [1990]). In sum, the court finds the School District has failed to establish that the exhaustion of administrative remedies would be futile, that it would suffer irreparable harm in the absence of prompt judicial action, and that SDHR is proceeding beyond its grant of power. While the court is certainly troubled by the expense in these difficult times that petitioner may well have to incur in the course of SDHR's investigation and hearing, the court is compelled to determine that SDHR itself is the proper forum in which to determine whether petitioner is subject to its authority. This court may not presume that SDHR will not properly determine such issue. In any event, SDHR's determination on the jurisdictional and other issues would be reviewable in a Article 78 review.

In view of the foregoing, the petition is dismissed and the temporary restraining order issued on May 28, 2010 is hereby vacated.

This shall constitute the decision, order and judgment of the court.

DATED:July 26, 2010

Binghamton, NY

s/ Ferris D. Lebous

HON. FERRIS D. LEBOUS