IN RE: Robert HAWKINS (2006)

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered December 14, 2004, which denied respondents' motion to dismiss this proceeding and granted the petition to the extent of directing respondent Transit Authority to give petitioner back pay and benefits from October 30, 2002, unanimously affirmed, without costs.

 The Civil Service Commission found that the termination of employment amounted to discrimination based on petitioner's criminal record, in violation of Correction Law § 752, and ordered his reinstatement.   Pursuit of administrative remedies did not preclude petitioner from seeking back pay in this proceeding on the ground of unlawfully discriminatory discharge.   Petitioner was required to exhaust his administrative remedies, but the initiation of administrative proceedings and an appeal to the Civil Service Commission did not amount to an election of remedies barring a subsequent proceeding alleging a violation of the Human Rights Laws (Executive Law § 297 [9];  see Matter of Jainchill v. New York State Human Rights Appeal Bd., 83 A.D.2d 665, 442 N.Y.S.2d 595 [1981] ).

 The proceeding is not time-barred.   Petitioner was not required to commence an article 78 proceeding within four months of his termination date, since that determination was not final until he exhausted his administrative remedies (see Matter of Martin v. Ronan, 44 N.Y.2d 374, 405 N.Y.S.2d 671, 376 N.E.2d 1316 [1978] ).   Following petitioner's successful administrative appeal and his reinstatement, he made several requests for back pay for the period of his termination, which went unanswered.   The statute of limitations did not begin to run until respondents notified petitioner of their determination denying his request (see Matter of Carter v. State of New York, Executive Dept., Div. of Parole, 95 N.Y.2d 267, 270, 716 N.Y.S.2d 364, 739 N.E.2d 730 [2000];  Matter of Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832, 470 N.Y.S.2d 130, 458 N.E.2d 371 [1983] ).

It was not necessary for the court to grant respondents leave to serve an answer under CPLR 7804(f) before ruling on the merits, since they had already clearly stated their relevant arguments, leaving no material facts in dispute (Matter of Davila v. New York City Hous. Auth., 190 A.D.2d 511, 593 N.Y.S.2d 12 [1993], lv. denied 87 N.Y.2d 801, 637 N.Y.S.2d 688, 661 N.E.2d 160 [1995] ).