Opinion
Submitted January 20, 2000
February 28, 2000
In a proceeding pursuant to Executive Law § 298 Exec. to review a determination of the Commissioner of the New York State Division of Human Rights, dated July 2, 1998, which, after a hearing, found that Westchester County Department of Social Services had not unlawfully discriminated against the petitioner on the basis of race, gender, or disability, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Barone, J.), entered October 26, 1998, which denied the petition.
John W. Whittlesey, Chappaqua, N.Y., for appellant.
Gina M. Lopez, New York, N.Y. (Michael K. Swirsky of counsel), for respondent New York State Division of Human Rights.
Alan D. Scheinkman, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G. Gardiner of counsel), for respondent Westchester County Department of Social Services.
FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, JJ.
DECISION, ORDER JUDGMENT
ORDERED that the appeal is dismissed and the judgment is vacated, on the law; and it is further,
ADJUDGED that the determination is confirmed, and the proceeding is dismissed on the merits; and it is further,
ORDERED that the respondents are awarded one bill of costs.
Since the petition was brought pursuant to Executive Law § 298 Exec., the Supreme Court should have transferred the entire proceeding to the Appellate Division (Executive Law § 298 Exec.; see, Matter of Duso v. Kralik, 216 A.D.2d 297 ; Matter of Reape v. Gunn, 154 A.D.2d 682 ). Nonetheless, since the record is now before us, this court will treat the proceeding as if it had been properly transferred here (see, Matter of Duso v. Kralik, supra; Matter of Reape v. Gunn, supra).
The determination by the Commissioner of the New York State Division of Human Rights that the respondent Westchester County Department of Social Services had not unlawfully discriminated against the petitioner on the basis of race, gender, or disability is supported by substantial evidence (see, Matter of Consolidated Edison Co. of N.Y. v. New York State Div. of Human Rights [Easton], 77 N.Y.2d 411, 417 ; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176 ). There was substantial evidence in the record that the petitioner failed to provide the medical documentation required for extended sick leave.