Opinion
CA 01-02119
June 14, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Erie County (Notaro, J.), entered April 10, 2001, which dismissed the CPLR article 78 petition.
ERNEST J. GAWINSKI, BUFFALO, FOR PETITIONERS-APPELLANTS.
ELAINE A. SMITH, BUFFALO, FOR RESPONDENT-RESPONDENT NEW YORK STATE DIVISION OF HUMAN RIGHTS.
PRESENT: PIGOTT, JR., P.J., PINE, HAYES, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Petitioners commenced this CPLR article 78 proceeding seeking relief in the nature of prohibition against respondent Mary Nevins, the complainant in the underlying administrative proceeding, and respondent New York State Division of Human Rights and its Commissioner (collectively, Division). The underlying administrative proceeding was filed with the Division in 1988 and charges petitioners with racial discrimination in employment. Petitioners alleged that the Division acted without or in excess of its jurisdiction by entering into a stipulation with the complainant in 2000 to amend her 1988 complaint to add a claim of retaliatory discharge. According to petitioners, the Division exceeded its authority to amend a complaint "reasonably and fairly" ( 9 NYCRR 465.4 [a]) when, without notice to petitioners, it amended the complaint to add a claim that had accrued 11 years earlier.
Supreme Court properly dismissed the petition. The extraordinary remedy of prohibition is available to address whether a body or officer has proceeded, is proceeding, or is about to proceed without or in excess of jurisdiction ( see CPLR 7803; Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 786). "The writ is generally not available to correct common procedural or substantive errors" ( Town of Huntington, 82 N.Y.2d at 786; see Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569; Matter of Rush v. Mordue, 68 N.Y.2d 348, 353). It lies only where there is a clear legal right to relief ( see Rush, 68 N.Y.2d at 352-353; Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 51), and generally does not lie where the harm can be adequately corrected on appeal or by recourse to ordinary proceedings ( see Rush, 68 N.Y.2d at 354; see generally Town of Huntington, 82 N.Y.2d at 786).
Here, the Division has authority to amend complaints of discrimination ( see 9 NYCRR 465.4 [a], [c]). Moreover, petitioners allege a procedural or substantive error, not such a lack or excess of jurisdiction "as to implicate the legality of the entire proceeding" ( Rush, 68 N.Y.2d at 353). We therefore conclude that petitioners failed to establish a clear legal right to the relief sought ( see Town of Huntington, 82 N.Y.2d at 786). In any event, petitioners failed to demonstrate that the amendment of the complaint will cause them such substantial and irreparable prejudice as to oust the Division of jurisdiction to hear and adjudicate the amended complaint of discrimination ( see Matter of Diaz Chem. Corp. v. New York State Div. of Human Rights, 91 N.Y.2d 932, 933; Matter of Corning Glass Works v. Ovsanik, 84 N.Y.2d 619, 623-625; Matter of Harris Assoc. v. deLeon, 84 N.Y.2d 698, 702; Matter of Cortlandt Nursing Home v Axelrod, 66 N.Y.2d 169, 178-179, rearg denied 66 N.Y.2d 1035, cert denied 476 U.S. 1115). We note that petitioners may challenge the amendment of the complaint, if so advised, following the Division's adjudication of the matter and "will suffer no irreparable harm" by waiting until then to challenge the amendment ( Town of Huntington, 82 N.Y.2d at 786).