Opinion
February 26, 1982
Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and Moule, JJ.
Determination of appeal board unanimously confirmed, without costs, in accordance with the following memorandum: Although the appeal board erred in dismissing the complaint on the ground that the delay of the New York State Division of Human Rights (Division) caused prejudice as a matter of law ( Matter of Spica v. New York State Human Rights Appeal Bd., 73 A.D.2d 762), we find that the protracted and egregious delay in the Division's proceedings warrants dismissal in this instance ( Matter of Sarkisian Bros. v. State Div. of Human Rights, 48 N.Y.2d 816; State Div. of Human Rights v. Board of Educ., of West Val. Cent. School Dist., 53 A.D.2d 1043, affd 42 N.Y.2d 862). The appeal board could have dismissed upon a finding of actual prejudice to the employer (see Matter of Hagen v. State Human Rights Appeal Bd., 73 A.D.2d 646; Ritchie v. New York State Human Rights Appeal Bd., 72 A.D.2d 718); however, absent such a finding, proceedings properly initiated before the Division may not be dismissed at any step of the administrative proceedings solely because of delay ( Matter of Division of State Police v. Kramarsky, 75 A.D.2d 662). The time schedules in section 297 Exec. of the Executive Law are merely directory ( Matter of Sarkisian Bros. v. State Div. of Human Rights, supra). In this instance, however, the delay far exceeds the delay found to constitute prejudice as a matter of law in State Div. of Human Rights v. Board of Educ. ( 59 A.D.2d 1048) and West Val. ( supra) (see, also, State Div. of Human Rights v. Gannett Co., 61 A.D.2d 1134). The period between the filing of the complaint on November 4, 1971 and the determination of the hearing commissioner on May 31, 1979 was in excess of seven years. Accordingly, we find that the protracted delay caused prejudice to the respondent employer, as a matter of law, and warrants dismissal of the complaint.