Opinion
November 28, 1988
Appeal from the Supreme Court, Kings County (Levine, J.).
Ordered that the judgment is affirmed, with costs.
Almost two years after a complaint was filed with the State Division of Human Rights (hereinafter the SDHR) alleging discrimination by the Interboro Bus Company against the complainant because of his religious beliefs, the petitioner was joined as a necessary party to the proceeding after an investigation of the complainant's allegations revealed that its presence at an evidentiary hearing was required to resolve factual disputes.
We agree with the Supreme Court that the SDHR acted to join the Local as a necessary party as promptly as was consonant with a fair and effective investigation of the issues presented by the underlying complaint (Executive Law § 297). The time limits set forth in Executive Law § 297 are directory and not mandatory (Union Free School Dist. No. 6 v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371; Matter of 121-129 Broadway Realty v New York State Div. of Human Rights, 43 A.D.2d 754; Matter of Moskal v. State of New York, Executive Dept., Div. of Human Rights, 36 A.D.2d 46; see also, Matter of Liverpool Cent. School Dist. v. State Div. of Human Rights, 46 A.D.2d 1004). They were enacted for the benefit of complainants, not those charged with violating the statute, and in the absence of substantial prejudice to the party charged, delay attributable solely to the administrative agency should not operate to foreclose relief to an innocent complainant who is not responsible for it (Matter of Liverpool Cent. School Dist. v State Div. of Human Rights, supra, at 1005; Matter of Tessy Plastics Corp. v. State Div. of Human Rights, 62 A.D.2d 36, 40, affd 47 N.Y.2d 789).
"[T]he mere passage of time normally will not constitute substantial prejudice in the absence of some showing of actual injury to the respondent" (Matter of Sarkisian Bros. v. State Div. of Human Rights, 48 N.Y.2d 816, 818; see also, Matter of State Div. of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684; Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, cert denied 476 U.S. 1115; Matter of Wirth v. Ambach, 134 A.D.2d 650; Matter of State Div. of Human Rights v. Johnson Co., 122 A.D.2d 949). The petitioner has failed to substantiate the claim that the Local was injured by the alleged delay of the SDHR in serving it with a complaint.
Nor is there merit to the petitioner's contention that since the Local was not joined as a necessary party within one year of the alleged discriminatory practice, the proceeding against it was barred by the Statute of Limitations contained in Executive Law § 297 (5). Executive Law § 297 (5) requires a complainant to file a complaint within one year of the alleged unlawful discriminatory practice. The complainant complied with this requirement. However, this section does not require the complainant to serve a respondent or a necessary party with the complaint. Rather, Executive Law § 297 (2) imposes a duty upon the SDHR to "promptly" serve the respondent and any necessary party with a copy of the complaint. Therefore, the SDHR was only required to serve the petitioner "promptly". Accordingly, the Supreme Court did not abuse its discretion in denying the application and dismissing the petition. Mollen, P.J., Mangano, Brown and Eiber, JJ., concur.