In Johnson-El v. West, No. CV-000232-26/KI, 2026 WL 2165111 (N.Y. Civ. Ct. June 23, 2026), the court, inter alia, citing the “election of remedies” doctrine, dismissed plaintiff’s complaint alleging employment discrimination.
From the decision:
In addition to finding that service was not proper, the court further finds that plaintiff’s within complaint was improperly filed in this court. Having previously filed an identical complaint2 with NYSDHR on October 21, 2024, which claim is still pending when he filed the within case on January 16, 2026, plaintiff may not maintain the within case. The law is clear that one must elect his/her remedy when seeking redress for employment discrimination.
NY Exec. Law § 297 (9) provides for election of remedies for one aggrieved by an unlawful discrimination practice to seek redress either through an administrative complaint with NYDHR or the court.
[That statute provides:]
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages, including, in cases of employment discrimination related to private employers and housing discrimination only, punitive damages, and such other remedies as may be appropriate, including any civil fines and penalties provided in subdivision four of this section, unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this article, provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. At any time prior to a hearing before a hearing examiner, a person who has a complaint pending at the division may request that the division dismiss the complaint and annul his or her election of remedies so that the human rights law claim may be pursued in court, and the division may, upon such request, dismiss the complaint on the grounds that such person’s election of an administrative remedy is annulled (NY Exec. Law § 297 [9]).
See also Frank Vetro v Hampton Bays Union Free Sch. Dist., 148 AD3d 963 (2nd Dept. 2017 (holding “[P]ursuant to the election of remedies doctrine, the filing of a complaint with the New York State Division of Human Rights (hereinafter the Division) precludes the commencement of an action in the Supreme Court asserting the same discriminatory act. NY Executive Law § 297 (9) provides that, ‘where the [D]ivision has dismissed such complaint on the grounds of administrative convenience[,]…such person shall maintain all rights to bring suit as if no complaint had been filed with the [D]ivision’”). Id (quoting Wrenn v Verizon, 106 AD3d 995, 995-996 [2013], quoting Executive Law § 297 [9])
The court concluded that “there is no evidence that plaintiff has requested NYSDHR to dismiss his complaint and annul his election of remedies so that he can pursue his claims in court” or any “evidence that the Division has dismissed plaintiff’s complaint.”