Opinion
2014-06-3
In re Roy Den HOLLANDER, Petitioner–Appellant, v. The CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS, Respondent–Respondent.
Roy Den Hollander, New York, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondent.
Roy Den Hollander, New York, appellant pro se. Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondent.
TOM, J.P., RENWICK, ANDRIAS, FREEDMAN, CLARK, JJ.
Judgment, Supreme Court, New York County (Alexander W. Hunter, J.), entered August 6, 2013, which denied the petition brought pursuant to CPLR Article 78 seeking to annul a determination of respondent City of New York Commission on Human Rights (CCHR), dated January 11, 2013, dismissing petitioner's complaint of age-based discrimination, unanimously affirmed, with costs.
Petitioner alleges that nonparty Amnesia J.V. LLC discriminated against him by requiring him to purchase a $350 bottle in order to gain admission to its nightclub. The New York State Division of Human Rights previously dismissed a complaint brought by petitioner alleging gender discrimination by Amnesia in hindering his admittance to the nightclub on January 9, 2010. Accordingly, the doctrine of election of remedies now bars petitioner from filing with CCHR the instant claim of age discrimination with respect to the same alleged incident ( see N.Y.C. Admin Code § 8–109[f] ). This is so even though petitioner is now advancing a different theory of invidious discrimination-age discrimination as opposed to gender discrimination ( see Benjamin v. New York City Dept. of Health, 57 A.D.3d 403, 404, 870 N.Y.S.2d 290 [1st Dept.2008],lv. dismissed,14 N.Y.3d 880, 903 N.Y.S.2d 335, 929 N.E.2d 398 [2010];Jones v. Gilman Paper Co., 166 A.D.2d 294, 294, 564 N.Y.S.2d 121 [1st Dept.1990] ).
In any event, CCHR's alternative determination of “no probable cause” has a rational basis and is not arbitrary and capricious ( see David v. New York City Commn. on Human Rights, 57 A.D.3d 406, 407, 869 N.Y.S.2d 504 [1st Dept.2008];de la Concha v. Gatling, 13 A.D.3d 74, 75, 784 N.Y.S.2d 871 [1st Dept.2004] ). Petitioner was afforded a “full and fair opportunity to present [his] case” (Matter of Block v. Gatling, 84 A.D.3d 445, 446, 922 N.Y.S.2d 327 [1st Dept.2011],lv. denied,17 N.Y.3d 709, 2011 WL 4089761 [2011] ), and received procedural due process ( see Matter of Daxor Corp. v. State of N.Y. Dept. of Health, 90 N.Y.2d 89, 98, 659 N.Y.S.2d 189, 681 N.E.2d 356 [1997],cert. denied, 523 U.S. 1074, 118 S.Ct. 1516, 140 L.Ed.2d 669 [1997];Pinder v. City of New York, 49 A.D.3d 280, 281, 853 N.Y.S.2d 312 [1st Dept.2008] ). There is absolutely no evidence that CCHR's Executive Director was biased against him, let alone any showing that any such bias “affect[ed] the result” ( People v. Moreno, 70 N.Y.2d 403, 407, 521 N.Y.S.2d 663, 516 N.E.2d 200 [internal punctuation omitted] ).