Opinion
January 6, 1994
Appeal from the Supreme Court, Broome County (Fischer, J.).
Petitioner commenced this CPLR article 78 proceeding to prohibit respondent Division of Human Rights from considering a complaint of employment discrimination filed on behalf of a former employee of petitioner. According to petitioner, the complaint was not timely filed. The Division concluded that although the complaint was not filed within the one-year period required by Executive Law § 297 (5), the complaint should be deemed timely filed in the interest of justice because the expiration of the statutory time period resulted from the Division's error and not from any fault of the complainant. Supreme Court held that the complaint was untimely and granted the petition. We reverse.
The writ of prohibition is generally 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 State of New York v. King, 36 N.Y.2d 59, 62). The Court of Appeals recently applied these general rules to conclude that "[t]he extraordinary writ of prohibition does not lie to prevent the Division of Human Rights from considering an individual's complaint of racial discrimination" (Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 784). The petition in the Huntington case alleged that the Division was collaterally estopped from considering the merits of the complaint by a prior final administrative determination in which the discrimination claim had been litigated. We see no basis for reaching a different conclusion here, where the petition alleges that the complaint was not timely filed with the Division. As in Huntington, petitioner herein has an adequate legal remedy in a CPLR article 78 proceeding to review the Division's final determination, and petitioner will suffer no irreparable harm from waiting until the Division renders a final determination.
Mikoll, J.P., Mercure, Crew III and Yesawich Jr., JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.