Opinion
May 31, 1988
Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.
The Division's determination that the petitioners failed to establish compliance with Executive Law § 297 (5) finds a rational basis in the record. That provision requires that a complaint based upon unlawful discrimination be filed within one year of the alleged unlawful discriminatory practice. However, the time within which to file the complaint is extended if the alleged violation is of a continuing nature ( 9 NYCRR 465.3 [e]; Syracuse v New York State Human Rights Appeal Bd., 107 A.D.2d 804). The petitioners, who are black, alleged that the existence of three incidents, occurring in 1969, 1976, and 1980, when they were denied appointments to administrative positions in favor of less qualified white individuals, established a continuing pattern and practice of discrimination. The only instance of alleged discrimination that fell within the one-year time period, the 1980 appointment, was merely the reappointment of a former administrative assistant pursuant to an understanding entered into between the employee and the director of the Queens Children's Psychiatric Center. The petitioners failed to establish that this reappointment constituted unlawful discrimination, and thus failed to establish compliance with Executive Law § 297 (5) (cf., Stewart v CPC Intl., 679 F.2d 117; LaBeach v Nestle Co., 658 F. Supp. 676). Therefore, the Division did not err in determining that the petitioners did not establish actionable discrimination (see, Board of Educ. v New York State Div. of Human Rights, 44 N.Y.2d 902, rearg denied 45 N.Y.2d 838). Mollen, P.J., Mangano, Eiber and Sullivan, JJ., concur.