§ 297. Procedure. 1. Any person claiming to be aggrieved by an
unlawful discriminatory practice may, by himself or herself or his or
her attorney-at-law, make, sign and file with the division a complaint
in writing under oath or by declaration which shall state the name and
address of the person alleged to have committed the unlawful
discriminatory practice complained of and which shall set forth the
particulars thereof and contain such other information as may be
required by the division. The commissioner of labor or the attorney
general, or the executive director of the justice center for the
protection of people with special needs, or the division on its own
motion may, in like manner, make, sign and file such complaint. In
connection with the filing of such complaint, the attorney general is
authorized to take proof, issue subpoenas and administer oaths in the
manner provided in the civil practice law and rules. Any employer whose
employees, or some of them, refuse or threaten to refuse to cooperate
with the provisions of this article, may file with the division a
verified complaint asking for assistance by conciliation or other
remedial action.

2. a. After the filing of any complaint, the division shall promptly
serve a copy thereof upon the respondent and all persons it deems to be
necessary parties, and make prompt investigation in connection
therewith. Within one hundred eighty days after a complaint is filed,
the division shall determine whether it has jurisdiction and, if so,
whether there is probable cause to believe that the person named in the
complaint, hereinafter referred to as the respondent, has engaged or is
engaging in an unlawful discriminatory practice. If it finds with
respect to any respondent that it lacks jurisdiction or that probable
cause does not exist, the commissioner shall issue and cause to be
served on the complainant an order dismissing such allegations of the
said complaint as to such respondent.

b. Notwithstanding the provisions of paragraph a of this subdivision,
with respect to housing discrimination only, after the filing of any
complaint, the division shall, within thirty days after receipt, serve a
copy thereof upon the respondent and all persons it deems to be
necessary parties, and make prompt investigation in connection
therewith. Within one hundred days after a complaint is filed, the
division shall determine whether it has jurisdiction and, if so, whether
there is probable cause to believe that the person named in the
complaint, hereinafter referred to as the respondent, has engaged or is
engaging in an unlawful discriminatory practice. If it finds with
respect to any respondent that it lacks jurisdiction or that probable
cause does not exist, the commissioner shall issue and cause to be
served on the complainant an order dismissing such allegations of the
said complaint as to such respondent.

3. a. If in the judgment of the division the circumstances so warrant,
it may, at any time after the filing of the complaint, endeavor to
eliminate such unlawful discriminatory practice by conference,
conciliation and persuasion. Each conciliation agreement shall include
provisions requiring the respondent to refrain from the commission of
unlawful discriminatory practices in the future and may contain such
further provisions as may be agreed upon by the division, the
complainant, and the respondent, including a provision for the entry in
the supreme court in any county in the judicial district where the
alleged unlawful discriminatory practice was committed, or where any
respondent resides or maintains an office for the transaction of
business, or where the housing accommodation, land or commercial space
specified in the complaint is located, of a consent decree embodying the
terms of the conciliation agreement. The division shall not disclose
what has transpired in the course of such endeavors.

b. If a conciliation agreement is entered into, the division shall
issue an order embodying such agreement and serve a copy of such order
upon all parties to the proceeding, and if a party to any such
proceeding is a regulated creditor, the division shall forward a copy of
the order embodying such agreement to the superintendent.

c. If the division finds that noticing the complaint for hearing would
be undesirable, the division may, in its unreviewable discretion, at any
time prior to a hearing before a hearing examiner, dismiss the complaint
on the grounds of administrative convenience. However, in cases of
housing discrimination only, an administrative convenience dismissal
will not be rendered without the consent of the complainant. The
division may, subject to judicial review, dismiss the complaint on the
grounds of untimeliness if the complaint is untimely or on the grounds
that the election of remedies is annulled.

4. a. Within two hundred seventy days after a complaint is filed, or
within one hundred twenty days after the court has reversed and remanded
an order of the division dismissing a complaint for lack of jurisdiction
or for want of probable cause, unless the division has dismissed the
complaint or issued an order stating the terms of a conciliation
agreement not objected to by the complainant, the division shall cause
to be issued and served a written notice, together with a copy of such
complaint, as the same may have been amended, requiring the respondent
or respondents to answer the charges of such complaint and appear at a
public hearing before a hearing examiner at a time not less than five
nor more than fifteen days after such service and at a place to be fixed
by the division and specified in such notice. The place of any such
hearing shall be the office of the division or such other place as may
be designated by the division. The case in support of the complaint
shall be presented by one of the attorneys or agents of the division
and, at the option of the complainant, by his or her attorney. With the
consent of the division, the case in support of the complainant may be
presented solely by his or her attorney. No person who shall have
previously made the investigation, engaged in a conciliation proceeding
or caused the notice to be issued shall act as a hearing examiner in
such case. Attempts at conciliation shall not be received in evidence.
At least two business days prior to the hearing the respondent shall,
and any necessary party may, file a written answer to the complaint,
sworn to subject to the penalties of perjury, with the division and
serve a copy upon all other parties to the proceeding. A respondent who
has filed an answer, or whose default in answering has been set aside
for good cause shown may appear at such hearing in person or otherwise,
with or without counsel, cross examine witnesses and the complainant and
submit testimony. The complainant and all parties shall be allowed to
present testimony in person or by counsel and cross examine witnesses.
The hearing examiner may in his or her discretion permit any person who
has a substantial personal interest to intervene as a party, and may
require that necessary parties not already parties be joined. The
division or the complainant shall have the power reasonably and fairly
to amend any complaint, and the respondent and any other party shall
have like power to amend his or her answer. The hearing examiner shall
not be bound by the strict rules of evidence prevailing in courts of law
or equity. The testimony taken at the hearing shall be under oath and a
record made.

b. If the respondent fails to answer the complaint, the hearing
examiner designated to conduct the hearing may enter the default and the
hearing shall proceed on the evidence in support of the complaint. Such
default may be set aside only for good cause shown upon equitable terms
and conditions.

c. Within one hundred eighty days after the commencement of such
hearing, a determination shall be made and an order served as
hereinafter provided. If, upon all the evidence at the hearing, the
commissioner shall find that a respondent has engaged in any unlawful
discriminatory practice as defined in this article, the commissioner
shall state findings of fact and shall issue and cause to be served on
such respondent an order, based on such findings and setting them forth,
and including such of the following provisions as in the judgment of the
division will effectuate the purposes of this article: (i) requiring
such respondent to cease and desist from such unlawful discriminatory
practice; (ii) requiring such respondent to take such affirmative
action, including (but not limited to) hiring, reinstatement or
upgrading of employees, with or without back pay, restoration to
membership in any respondent labor organization, admission to or
participation in a guidance program, apprenticeship training program,
on-the-job training program or other occupational training or retraining
program, the extension of full, equal and unsegregated accommodations,
advantages, facilities and privileges to all persons, granting the
credit which was the subject of any complaint, evaluating applicants for
membership in a place of accommodation without discrimination based on
race, creed, color, national origin, sex, disability or marital status,
and without retaliation or discrimination based on opposition to
practices forbidden by this article or filing a complaint, testifying or
assisting in any proceeding under this article; (iii) awarding of
compensatory damages to the person aggrieved by such practice; (iv)
awarding of punitive damages, in cases of employment discrimination
related to private employers, and, in cases of housing discrimination,
with damages in housing discrimination cases in an amount not to exceed
ten thousand dollars, to the person aggrieved by such practice; (v)
requiring payment to the state of profits obtained by a respondent
through the commission of unlawful discriminatory acts described in
subdivision three-b of section two hundred ninety-six of this article;
and (vi) assessing civil fines and penalties, in an amount not to exceed
fifty thousand dollars, to be paid to the state by a respondent found to
have committed an unlawful discriminatory act, or not to exceed one
hundred thousand dollars to be paid to the state by a respondent found
to have committed an unlawful discriminatory act which is found to be
willful, wanton or malicious; (vii) requiring a report of the manner of
compliance. If, upon all the evidence, the commissioner shall find that
a respondent has not engaged in any such unlawful discriminatory
practice, he or she shall state findings of fact and shall issue and
cause to be served on the complainant an order based on such findings
and setting them forth dismissing the said complaint as to such
respondent. A copy of each order issued by the commissioner shall be
delivered in all cases to the attorney general, the secretary of state,
if he or she has issued a license to the respondent, and such other
public officers as the division deems proper, and if any such order
issued by the commissioner concerns a regulated creditor, the
commissioner shall forward a copy of any such order to the
superintendent. A copy of any complaint filed against any respondent who
has previously entered into a conciliation agreement pursuant to
paragraph a of subdivision three of this section or as to whom an order
of the division has previously been entered pursuant to this paragraph
shall be delivered to the attorney general, to the secretary of state if
he or she has issued a license to the respondent and to such other
public officers as the division deems proper, and if any such respondent
is a regulated creditor, the commissioner shall forward a copy of any
such complaint to the superintendent.

d. The division shall establish rules of practice to govern, expedite
and effectuate the foregoing procedure and its own actions thereunder.

e. Any civil penalty imposed pursuant to this subdivision shall be
separately stated, and shall be in addition to and not reduce or offset
any other damages or payment imposed upon a respondent pursuant to this
article. In cases of employment discrimination where the employer has
fewer than fifty employees, such civil fine or penalty may be paid in
reasonable installments, in accordance with regulations promulgated by
the division. Such regulations shall require the payment of reasonable
interest resulting from the delay, and in no case permit installments to
be made over a period longer than three years.

5. Any complaint filed pursuant to this section must be so filed
within three years after the alleged unlawful discriminatory practice.

6. At any time after the filing of a complaint with the division
alleging an unlawful discriminatory practice under this article, if the
division determines that the respondent is doing or procuring to be done
any act tending to render ineffectual any order the commissioner may
enter in such proceeding, the commissioner may apply to the supreme
court in any county where the alleged unlawful discriminatory practice
was committed, or where any respondent resides or maintains an office
for the transaction of business, or if the complaint alleges an unlawful
discriminatory practice under subdivision two-a or paragraph (a), (b) or
(c) of subdivision five of section two hundred ninety-six of this
article, where the housing accommodation, land or commercial space
specified in the complaint is located, or, if no supreme court justice
is available in such county, in any other county within the judicial
district, for an order requiring the respondents or any of them to show
cause why they should not be enjoined from doing or procuring to be done
such act. The order to show cause may contain a temporary restraining
order and shall be served in the manner provided therein. On the return
date of the order to show cause, and after affording all parties an
opportunity to be heard, if the court deems it necessary to prevent the
respondents from rendering ineffectual an order relating to the subject
matter of the complaint, it may grant appropriate injunctive relief upon
such terms and conditions as it deems proper.

7. Not later than one year from the date of a conciliation agreement
or an order issued under this section, and at any other times in its
discretion, the division shall investigate whether the respondent is
complying with the terms of such agreement or order. Upon a finding of
non-compliance, the division shall take appropriate action to assure
compliance.

8. No officer, agent or employee of the division shall make public
with respect to a particular person without his consent information from
reports obtained by the division except as necessary to the conduct of a
proceeding under this section.

9. 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. Notwithstanding subdivision (a) of
section two hundred four of the civil practice law and rules, if a
complaint is so annulled by the division, upon the request of the party
bringing such complaint before the division, such party's rights to
bring such cause of action before a court of appropriate jurisdiction
shall be limited by the statute of limitations in effect in such court
at the time the complaint was initially filed with the division. Any
party to a housing discrimination complaint shall have the right within
twenty days following a determination of probable cause pursuant to
subdivision two of this section to elect to have an action commenced in
a civil court, and an attorney representing the division of human rights
will be appointed to present the complaint in court, or, with the
consent of the division, the case may be presented by complainant's
attorney. A complaint filed by the equal employment opportunity
commission to comply with the requirements of 42 USC 2000e-5(c) and 42
USC 12117(a) and 29 USC 633(b) shall not constitute the filing of a
complaint within the meaning of this subdivision. No person who has
initiated any action in a court of competent jurisdiction or who has an
action pending before any administrative agency under any other law of
the state based upon an act which would be an unlawful discriminatory
practice under this article, may file a complaint with respect to the
same grievance under this section or under section two hundred
ninety-six-a of this article. In cases of housing discrimination only, a
person whose complaint has been dismissed by the division after
investigation for lack of jurisdiction or lack of probable cause may
file the same cause of action in a court of appropriate jurisdiction
pursuant to this section, unless judicial review of such dismissal has
been sought pursuant to section two hundred ninety-eight of this
article. The attorney general shall have the power to commence an action
or proceeding in the supreme court of the state of New York, if, upon
information or belief, the attorney general is of the opinion that an
employer has been, is, or is about to violate the provisions regarding
unlawful discriminatory retaliation pursuant to subdivision seven of
section two hundred ninety-six of this article. Nothing in this section
shall in any way limit rights or remedies which are otherwise available
under law to the attorney general or any other person authorized to
bring an action under this section.

10. In an action or proceeding at law under this section or section
two hundred ninety-eight of this article, the commissioner or the court
may in its discretion award reasonable attorney's fees to any prevailing
or substantially prevailing party; provided, however, that a prevailing
respondent or defendant in order to recover such reasonable attorney's
fees must make a motion requesting such fees and show that the action or
proceeding brought was frivolous; and further provided that in a
proceeding brought in the division of human rights, the commissioner may
only award attorney's fees as part of a final order after a public
hearing held pursuant to subdivision four of this section. In no case
shall attorney's fees be awarded to the division, nor shall the division
be liable to a prevailing or substantially prevailing party for
attorney's fees, except in a case in which the division is a party to
the action or the proceeding in the division's capacity as an employer.
Expert witness fees may be awarded in the same manner as attorney's
fees. In cases of employment discrimination, a respondent shall only be
liable for attorney's fees under this subdivision if the respondent has
been found liable for having committed an unlawful discriminatory
practice. In order to find the action or proceeding to be frivolous, the
court or the commissioner must find in writing one or more of the
following:

(a) the action or proceeding was commenced, used or continued in bad
faith, solely to delay or prolong the resolution of the litigation or to
harass or maliciously injure another; or

(b) the action or proceeding was commenced or continued in bad faith
without any reasonable basis and could not be supported by a good faith
argument for an extension, modification or reversal of existing law. If
the action or proceeding was promptly discontinued when the party or
attorney learned or should have learned that the action or proceeding
lacked such a reasonable basis, the court may find that the party or the
attorney did not act in bad faith.