SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1035 

CA 12-00004 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.

 

 

KEN-VIL ASSOCIATES LIMITED PARTNERSHIP, 

AFFINITY RENEWAL DEVELOPMENT LLC, 

VILLA MARIA COLLEGE OF BUFFALO AND 

ATLANTIC HOUSING FOUNDATION, INC., 

PLAINTIFFS-RESPONDENTS,

 

V MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS 

AND GALEN D. KIRKLAND, DEFENDANTS-APPELLANTS. 

 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ANDREW B. AYERS OF

COUNSEL), FOR DEFENDANTS-APPELLANTS. 

LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (DENNIS C. VACCO OF

COUNSEL), FOR PLAINTIFFS-RESPONDENTS KEN-VIL ASSOCIATES LIMITED

PARTNERSHIP AND AFFINITY RENEWAL DEVELOPMENT LLC. 

CONNORS & VILARDO LLP, BUFFALO (RANDALL D. WHITE OF COUNSEL), FOR

PLAINTIFF-RESPONDENT ATLANTIC HOUSING FOUNDATION, INC. 

 

Appeal from an order of the Supreme Court, Erie County (John A.

Michalek, J.), entered March 14, 2011. The order denied defendants’

motion to dismiss the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting that part of defendants’

motion to dismiss the first and third causes of action and as modified

the order is affirmed without costs. 

Memorandum: Plaintiffs commenced this action seeking, inter

alia, a judgment declaring that the settlement agreement (Agreement)

that they entered into with defendant New York State Division of Human

Rights (Division) is void and unenforceable and a permanent injunction

prohibiting defendants from enforcing that Agreement. In lieu of an

answer, defendants moved to dismiss the complaint pursuant to CPLR

3211 (a) (2) and (7) on the ground that, inter alia, Executive Law §

298 provides the exclusive means for reviewing a final determination

of the Division and plaintiffs failed to seek judicial review of the

determination within the statute’s 60-day limitations period. Supreme

Court denied the motion.

We agree with defendants that, insofar as the complaint

challenges the Division’s authority to enter into the Agreement and
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the circumstances surrounding the execution of the Agreement, it

should be dismissed as untimely pursuant to Executive Law § 298. That

statute provides, in relevant part, that “[a]ny complainant,

respondent or other person aggrieved by . . . an order of the

[D]ivision which makes a final disposition of a complaint may obtain

judicial review thereof . . . in a proceeding as provided in this

section” (id.). Such a proceeding “must be instituted within sixty

days after the service of such order” (id.; see Matter of Lester v New

York State Off. of Parks, Recreation & Historic Preserv., 60 AD3d 680,

681, lv denied 12 NY3d 712; Matter of Gil v New York State Div. of

Human Rights, 17 AD3d 365, 366). Executive Law § 298 provides the

“exclusive means” for reviewing a determination of the Division

(Matter of Baust v New York State Div. of Human Rights, 70 AD3d 1107,

1108, lv denied 15 NY3d 710).

Here, the Division filed an administrative complaint against,

inter alia, plaintiffs Ken-Vil Associates Limited Partnership (KenVil), Affinity Renewal Development LLC (Affinity), and Villa Maria

College of Buffalo (Villa Maria), alleging that they were in violation

of Executive Law §§ 296 (2-a) and 296 (5) “by developing and renting

housing accommodations designed to and with the effect of denying

housing to individuals based on, inter alia, their familial status,

race, and/or age, and which unlawfully perpetuates segregation and

separation in the State of New York.” Ken-Vil, Affinity, Villa Maria

and the Division executed a stipulated agreement pursuant to which the

Division agreed to withdraw the complaint without prejudice in order

to facilitate settlement discussions. Thereafter, plaintiffs and the

Division entered into the Agreement at issue herein, the terms of

which were incorporated into an order of the Division (Order). 

Pursuant to the terms of the Agreement, the Division agreed to

terminate its investigation of plaintiffs and to amend the stipulated

agreement to provide that the complaint was dismissed “with

prejudice”. We thus agree with the Division that the Order “final[ly]

dispos[ed] of [the] complaint” (§ 298), and that the statute’s 60-day

limitations period therefore began to run on the date the Order was

served.

We further agree with the Division that plaintiffs are precluded

from challenging the Order, the underlying Agreement, and the

circumstances surrounding the execution of the Agreement because they

failed to commence a proceeding pursuant to Executive Law § 298 within

the 60-day limitations period (see id.), and because they could have,

but did not, raise those issues in such a proceeding (see Matter of

Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789, 791). 

Notably, a declaratory judgment action may not be used to extend the

relevant limitations period (see New York City Health & Hosps. Corp. v

McBarnette, 84 NY2d 194, 201, rearg denied 84 NY2d 865). We therefore

modify the order by dismissing the first cause of action, which

alleges that the Agreement is void because the Division lacked the

authority to enter into a settlement agreement without first

determining that there was probable cause to believe that plaintiffs

engaged in an unlawful discriminating practice, and the third cause of

action, which alleges that the Agreement is void because it was

entered into under duress. 
-3- 1035 

CA 12-00004 

Contrary to the contention of defendants, however, we conclude

that the court properly denied the Division’s motion to dismiss the

complaint insofar as it challenges the validity of the Agreement based

upon events occurring after execution of the Agreement. Initially, we

note that defendants’ primary jurisdiction and ripeness contentions

are not properly before us inasmuch as they are raised for the first

time on appeal (see Avraham v Allied Realty Corp., 8 AD3d 1079, 1079). 

In any event, those contentions are without merit.

The doctrine of primary jurisdiction applies when the

determination of an action “ ‘requires the resolution of issues which,

under a regulatory scheme, have been placed within the special

competence of an administrative body’ . . . The doctrine is intended

to coordinate the relationship between courts and administrative

agencies so that, among other things, the agency’s views on factual

and technical issues are made available where the matter before the

court is within the agency’s specialized field” (Matter of Donato v

Board of Educ. of Plainview, Old Bethpage Cent. School Dist., 286 AD2d

388, 388, quoting United States v Western Pac. R.R. Co., 352 US 59,

64). Thus, “in such a case[,] the judicial process is suspended

pending referral of such issues to the administrative body for its

views” (Matter of Langston v Iroquois Cent. School Dist., 291 AD2d

845, 845 [internal quotation marks omitted]). 

Here, plaintiffs allege in their second, fourth, and fifth causes

of action that the Agreement is void for failure of conditions

precedent, frustration of purpose, and impossibility of performance

based upon their failure to obtain anticipated tax-exempt bond

financing. There is nothing in the Human Rights Law (Executive Law §

290 et seq.) or the Division’s Rules of Practice (9 NYCRR 465.1 et

seq.) that places a determination of whether a settlement agreement is

void on those grounds within the special competence of the Division

(cf. Langston, 291 AD2d at 845). Instead, such a determination

requires the application of general contract principles rather than

the use of any “specialized knowledge [or] expertise” of the Division

(Donato, 286 AD2d at 388; see generally Neumann v Wyandanch Union Free

School Dist., 84 AD3d 816, 818).

We further conclude that plaintiffs’ challenges to the Agreement

are ripe for judicial review inasmuch as the Order is final, and there

is no administrative proceeding available to raise the issues set

forth in the second, fourth, and fifth causes of action (see generally

Matter of Gordon v Rush, 100 NY2d 236, 242). While plaintiffs

theoretically could raise those issues as defenses in a compliance

proceeding brought by the Division, the Division has not commenced

such a proceeding (see Executive Law § 297 [7]; 9 NYCRR 465.18). In

light of the fact that an action for a declaratory judgment is

“governed by equitable principles” (Krieger v Krieger, 25 NY2d 364,

370), we conclude that plaintiffs, by reason of the Division’s delay

in seeking compliance with the Order, should not be foreclosed from

obtaining judicial review of the second, fourth, and fifth causes of 
-4- 1035 

CA 12-00004 

action.

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court