Argued May 2, 1977
Decided June 9, 1977
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department.
Ann Thacher Anderson, Beverly Gross and Lawrence Kunin for State Division of Human Rights, appellant.
Richard C. Heffern, Bernard F. Ashe and Gerard John De Wolf for Susan Bailey, appellant.
Donald J. Holzman for respondent.
The order of the Appellate Division should be affirmed, with costs. We cannot say that the disposition by that court on this record was erroneous as a matter of law.
The time limitations specified in section 297 (subd 2; subd 4, pars a, c) of the Executive Law for the performance of certain acts on the part of the State Division of Human Rights are for the benefit of complainants "and cannot be held to shelter those charged with violation of the statute" (Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 381). Absent a showing of "substantial prejudice", and in conformity with the realities of litigation, they are directory only and, therefore, failure to adhere to them should not invalidate a proceeding or otherwise terminate jurisdiction (ibid.; see, also, McKinney's Cons Laws of NY, Book 1, Statutes, § 172).
Specifically, in this case the petitioner was not deprived of a fair hearing or otherwise substantially prejudiced. Nor, for that matter, is there even the slightest hint that the complainant by any conduct on her part had contributed to the delay.
Accordingly, the order of the Appellate Division should be reversed and the matter remitted to the Appellate Division to consider whether there is sufficient evidence to support the determination of the Human Rights Appeal Board.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, and WACHTLER concur in memorandum; Judge FUCHSBERG dissents and votes to reverse in a separate opinion in which Judge COOKE concurs.