N.Y. Comp. Codes R. & Regs. tit. 9 § 465.5

Current through Register Vol. 46, No. 43, October 23, 2024

Section 465.5 - Withdrawals, discontinuances and dismissals before a hearing

(a) Withdrawal. A pending complaint, or any part thereof, may be withdrawn by the complainant at any time before the service of a notice of hearing. Such a withdrawal shall be in writing and signed by the complainant. Such withdrawal does not preclude the division from filing a complaint on its own motion based on the same facts.

(b) EEOC complaints. A complaint filed by the Equal Employment Opportunity Commission on or after July 15, 1991, to comply with the requirements of 42 USC section 2000e-5(c), or on or after June 16, 1992, to comply with the requirements of 42 USC section 12117(a) or 29 USC section 633(b) shall not constitute a filing within the meaning of Human Rights Law section 297.9, and shall not require a dismissal from the division where complainant seeks to pursue the above remedies in court.

(c) Discontinuance.

(1) After the service of the notice of hearing, a proceeding may be discontinued by the complainant on notice to the respondent and with the consent of the commissioner.

(2) The application to discontinue shall be in writing, signed by the complainant or complainant's attorney, or made upon the record at a public hearing before an administrative law judge.

(d) Dismissal for lack of jurisdiction or probable cause.

(1) If the division finds, either on the face of the complaint or after investigation, with respect to any respondent or any charge, that it lacks jurisdiction or that probable cause does not exist, the complaint shall be dismissed as to such respondent, or charge, by the regional director or director of regional affairs.

(2) A complaint against a nonresident person or foreign corporation under section 298-a of the New York State Human Rights Law shall be dismissed if the division finds, either on the face of the complaint or after investigation, with respect to such respondent, that it lacks jurisdiction or that there is no reason to believe that such respondent has committed or is about to commit outside of this State an act which, if committed within this State, would constitute an unlawful discriminatory practice.

(3) The regional director shall issue and serve upon all parties an order dismissing said complaint, in whole or in part, which shall state the grounds for such dismissal of those charges or respondents against whom the dismissal order is directed, and shall contain notice to the complainant of a right to appeal to the Supreme Court of the State in the judicial department embracing the county wherein the unlawful discriminatory practice which is the subject of the order occurs.

(e) Dismissal for administrative convenience.

(1) If the division finds that the complainant's objections to a proposed conciliation agreement are without substance or that noticing the complaint for hearing would be otherwise undesirable, the division may, in its discretion at any time prior to the taking of testimony at a public hearing before an administrative law judge, dismiss the complaint on grounds of administrative convenience.

(2) The grounds for dismissal of a complaint for administrative convenience may include, but not be limited to, the following:

(i) the complainant's objections to a proposed conciliation agreement are without substance;

(ii) the complainant is unavailable or unwilling to participate in conciliation or investigation, or to attend a hearing;

(iii) relief is precluded by the respondent's absence or other special circumstances;

(iv) holding a hearing will not benefit the complainant;

(v) processing the complaint will not advance the State's human rights goals; or

(vi) the complainant has initiated or wants to initiate an action or proceeding in another forum based on the same grievance, where the administrative convenience dismissal would not contravene the election of remedies provisions contained in section 297.9 or section 300 of the law.

(3) The division, by the commissioner, the deputy commissioner for regional affairs, or the regional director shall issue and serve upon all parties an order dismissing said complaint, which shall state the grounds for such dismissal and shall contain notice to the complainant of a right to appeal to the Supreme Court in the county wherein the unlawful discriminatory practice which is the subject of the order occurs.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 465.5