SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

709 

TP 15-01941 

PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. 

 

IN THE MATTER OF RACHEL FIGUEROA, PETITIONER, 

V MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS 

AND BUFFALO CITY SCHOOL DISTRICT, RESPONDENTS. 

 

LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (CHARLES MILLER OF COUNSEL),

FOR PETITIONER.

CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX, FOR RESPONDENT NEW YORK

STATE DIVISION OF HUMAN RIGHTS.

GOLDBERG SEGALLA LLP, BUFFALO (KRISTIN K. WHEATON OF COUNSEL), FOR

RESPONDENT BUFFALO CITY SCHOOL DISTRICT. 

 

Proceeding pursuant to Executive Law § 298 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Erie County [Catherine R.

Nugent Panepinto, J.], dated November 16, 2015) to review a

determination of respondent New York State Division of Human Rights. 

The determination dismissed petitioner’s complaint. 

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: Petitioner Rachel Figueroa commenced this proceeding

and petitioner Ashleigh Schwallie commenced a separate proceeding

(Matter of Schwallie v New York State Div. of Human Rights, ___ AD3d

___ [Sept. 30, 2016]) pursuant to Executive Law § 298 seeking to annul

the determination of respondent New York State Division of Human

Rights (Division) dismissing their complaints alleging sexual

harassment and retaliation. At the time of the alleged employment

discrimination, petitioners were employed by respondent Buffalo City

School District (District) at the same school.

At the outset, we conclude that the District waived its

contention that the petitions should be dismissed for lack of

jurisdiction based upon the alleged failure of petitioners to serve

the District in accordance with CPLR 311 (a) (7). Those objections to

service were raised in the District’s answers, and the District failed

to move to dismiss the petitions on that ground within 60 days after

serving its answers (see CPLR 3211 [e]; Anderson & Anderson, LLPGuangzhou v Incredible Invs. Ltd., 107 AD3d 1520, 1521; Matter of
-2- 709 

TP 15-01941 

Resnick v Town of Canaan, 38 AD3d 949, 951). We also reject the

District’s contention that the proceedings were not timely commenced,

inasmuch as the limitations period commenced on the date of service of

the Division’s order and the record does not establish the date of

such service (see Matter of Fantauzzi v New York State Div. of Human

Rights, 113 AD3d 518, 519).

On the merits, however, we agree with the District that

substantial evidence supports the determination of the Division that

the District is not liable for the coworker’s discriminatory conduct. 

“Under the Human Rights Law, an ‘employer cannot be held liable for an

employee’s discriminatory act[s] unless the employer became a party to

[them] by encouraging, condoning, or approving [them]’ ” (Matter of

New York State Div. of Human Rights v ABS Elecs., Inc., 102 AD3d 967,

968, lv denied 24 NY3d 901, quoting Matter of Totem Taxi v New York

State Human Rights Appeal Bd., 65 NY2d 300, 305, rearg denied 65 NY2d

1054). Petitioners failed to establish that the District became a

party to the discriminatory conduct. “Rather, the record establishes

that [the District] ‘reasonably investigated complaints of

discriminatory conduct and took corrective action’ ” (Matter of Gordon

v New York State Dept. of Corr. & Community Supervision, 138 AD3d

1477, 1479).

Substantial evidence also supports the determination of the

Division that petitioners were not subjected to retaliation for

complaining about unlawful discrimination. Although petitioners

established a prima facie case of retaliation, the District “came

forward with ‘legitimate, independent, and nondiscriminatory reasons

to support its employment decision[s]’ ” (Matter of Childs v New York

State Div. of Human Rights, 57 AD3d 1457, 1458, lv dismissed 12 NY3d

888, 13 NY3d 926, quoting Matter of Miller Brewing Co. v State Div. of

Human Rights, 66 NY2d 937, 938), and petitioners failed to show that

those reasons were pretextual (see Matter of Pace Univ. v New York

City Commn. on Human Rights, 85 NY2d 125, 129). 

Entered: September 30, 2016 Frances E. Cafarell

Clerk of the Court