Opinion
June 7, 1991
Appeal from the Supreme Court, Cayuga County, Corning, J.
Present — Callahan, J.P., Denman, Green, Pine and Lowery, JJ.
Order and judgment unanimously affirmed with costs. Memorandum: Respondent Giles A. Wanamaker filed with the federal Equal Employment Opportunity Commission (EEOC) a complaint of age discrimination and retaliation against his employer, petitioner Columbian Rope Company (Columbian). The EEOC, contrary to Wanamaker's request, forwarded the complaint to the respondent New York State Division of Human Rights (SDHR) pursuant to a work sharing agreement between the two agencies. The SDHR did not conduct an investigation or a hearing on the matter. Wanamaker commenced an action in Federal District Court (see, Wanamaker v Columbian Rope Co., 713 F. Supp. 533) and alleged age discrimination under federal law (see, 29 U.S.C. § 621 et seq.) and also asserted a pendent state law claim (see, Executive Law § 290 et seq.). SDHR dismissed the claim before it on the ground of administrative convenience (see, Executive Law § 297; 9 NYCRR 465.5 [d] [2] [iv]). Colombian then commenced the instant proceeding pursuant to Executive Law § 298 to annul the SDHR dismissal.
Supreme Court properly denied the petition. An administrative convenience dismissal may be annulled only if it was "purely arbitrary" (Matter of Pan Am. World Airways v New York State Human Rights Appeal Bd., 61 N.Y.2d 542, 547). Here, contrary to Columbian's contention, the SDHR dismissal for administrative convenience effectuated Wanamaker's election of remedies, was in conformity with state law and regulation and advanced the state's human rights goals by not compelling use of scarce state resources where the complainant clearly expressed his desire to have his claim litigated in Federal Court (see, Eastman Chem. Prods. v New York State Div. of Human Rights, 162 A.D.2d 157, 158-159; Scott v Carter-Wallace, Inc., 147 A.D.2d 33, 38, lv dismissed 75 N.Y.2d 764; see also, Martel v Dean Witter Reynolds, 738 F. Supp. 53; Kaczor v City of Buffalo, 657 F. Supp. 441, 447). Colombian's reliance upon Marine Midland Bank v New York State Div. of Human Rights ( 75 N.Y.2d 240, rearg denied 75 N.Y.2d 947) is misplaced. There, the issue was whether a complaint which was untimely could be dismissed for administrative convenience. There is no issue of untimeliness presented in the instant case.