SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

59 

CA 16-01265 

PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.

 

IN THE MATTER OF DARCELL MCDONALD, 

PETITIONER-RESPONDENT, 

 

V MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS, 

RESPONDENT,

AND NEW YORK STATE OFFICE OF TEMPORARY AND 

DISABILITY ASSISTANCE, RESPONDENT-APPELLANT. 

 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF

COUNSEL), FOR RESPONDENT-APPELLANT. 

LAW OFFICE OF LINDY KORN, PLLC, BUFFALO (LINDY KORN OF COUNSEL), FOR

PETITIONER-RESPONDENT. 

 

Appeal from a judgment (denominated order) of the Supreme Court,

Erie County (Catherine R. Nugent Panepinto, J.), entered September 21,

2015 in a proceeding pursuant to CPLR article 78. The judgment

granted the petition to annul a determination of respondent New York

State Division of Human Rights. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law without costs, the petition is

dismissed, and the determination of respondent New York State Division

of Human Rights is reinstated. 

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination of respondent New York State

Division of Human Rights (SDHR) that there was no probable cause to

believe that petitioner’s employer, the New York State Office of

Temporary and Disability Assistance (respondent), discriminated and

retaliated against her. We agree with respondent that Supreme Court

erred in granting the petition.

“Where, as here, SDHR ‘renders a determination of no probable

cause without holding a hearing, the appropriate standard of review is

whether the probable cause determination was arbitrary and capricious

or lacked a rational basis’ ” (Matter of Napierala v New York State

Div. of Human Rights, 140 AD3d 1746, 1747). We agree with respondent

that the court erred in disturbing SDHR’s determination based upon,

inter alia, its failure to conduct a hearing. “Courts give deference

to SDHR due to its experience and expertise in evaluating allegations

of discrimination” (Matter of Curtis v New York State Div. of Human
-2- 59 

CA 16-01265 

Rights, 124 AD3d 1117, 1118), and “such deference extends to [SDHR’s]

decision whether to conduct a hearing” (Matter of Smith v New York

State Div. of Human Rights, 142 AD3d 1362, 1363). SDHR has the

discretion to determine the method to be used in investigating a

claim, and “a hearing is not required in all cases” (Smith, 142 AD3d

at 1363). Inasmuch as “the parties made extensive submissions to

[SDHR], ‘petitioner was given an opportunity to present [her] case,

and the record shows that the submissions were in fact considered, the

determination cannot be arbitrary and capricious merely because no

hearing was held’ ” (id.).

We further agree with respondent that the court erred in

disturbing SDHR’s determination of no probable cause on the ground

that the submissions raised issues of fact that warranted a hearing. 

“Probable cause exists only when, after giving full credence to

[petitioner’s] version of the events, there is some evidence of

unlawful discrimination . . . There must be a factual basis in the

evidence sufficient to warrant a cautious [person] to believe that

discrimination had been practiced” (Matter of Doin v Continental Ins.

Co., 114 AD2d 724, 725; see Smith, 142 AD3d at 1363). While

petitioner’s “factual showing must be accepted as true on a probable

cause determination” (Matter of Mambretti v New York State Div. of

Human Rights, 129 AD3d 1696, 1697, lv denied 26 NY3d 909), “full

credence need not be given to petitioner’s allegation in [her]

complaint that [she] was discriminated against on the basis of [her]

disability, for this is the ultimate conclusion, which must be

determined solely by [SDHR] based upon all of the facts and

circumstances” (Matter of Vadney v State Human Rights Appeal Bd., 93

AD2d 935, 936; see Smith, 142 AD3d at 1363-1364).

Here, we conclude that “the conflicting evidence before SDHR did

not create a material issue of fact that warranted a formal hearing”

(Matter of Hall v New York State Div. of Human Rights, 137 AD3d 1583,

1584). Rather, we agree with respondent that a rational basis

supports SDHR’s determination that, based upon all of the facts and

circumstances, there is no factual basis in the evidence sufficient to

warrant a cautious person to believe that respondent unlawfully

discriminated against petitioner based on her disability (see Smith,

142 AD3d at 1364). In addition, SDHR rationally determined that the

evidence did not support petitioner’s allegation that respondent

subjected her to a hostile work environment (see Matter of Baird v New

York State Div. of Human Rights, 100 AD3d 880, 881-882, lv denied 22

NY3d 851; Ferrer v New York State Div. of Human Rights, 82 AD3d 431,

431; see generally Matter of Bowler v New York State Div. of Human

Rights, 77 AD3d 1380, 1381, lv denied 16 NY3d 709). Finally, we

conclude that SDHR’s determination that there was no probable cause to

believe that respondent retaliated against petitioner is not arbitrary

or capricious, and it has a rational basis in the record (see

Napierala, 140 AD3d at 1747-1748; see generally Burlington N. & Santa

Fe Ry. Co. v White, 548 US 53, 67-68).

Entered: February 10, 2017 Frances E. Cafarell

Clerk of the Court