Opinion
February 4, 1994
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Green, J.P., Pine, Lawton, Doerr and Boehm, JJ.
Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in granting the petition prohibiting the State Division of Human Rights (SDHR) from proceeding further upon the complaint of Thomas B., which alleged employment discrimination based upon a perceived disability. The SDHR has jurisdiction to investigate complaints of discrimination and any error of law in the exercise of that jurisdiction must first be challenged by administrative review before judicial review pursuant to section 298 Exec. of the Executive Law is available (Matter of Tessy Plastics Corp. v. State Div. of Human Rights, 47 N.Y.2d 789, 791). The extraordinary writ of prohibition does not lie to challenge the SDHR's initial acceptance of jurisdiction over a complaint of discrimination (Matter of Richards v. Mangum, 35 A.D.2d 124; see also, Matter of Town of Huntington v. State Div. of Human Rights, 82 N.Y.2d 783; Matter of Fleetwood Tenants Assn. v. New York State Div. of Hous. Community Renewal, 176 A.D.2d 941; Matter of McMillan Book Co. v. State Div. of Human Rights, 64 Misc.2d 692).