JOHNSON v. SCHOLASTIC INC

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Supreme Court, Appellate Division, First Department, New York.

James M. JOHNSON, Petitioner-Appellant, v. SCHOLASTIC INC., et al., Respondents-Respondents.

Decided: June 19, 2008

MAZZARELLI, J.P., ANDRIAS, WILLIAMS, RENWICK, JJ. Bonnie P. Josephs, New York, for appellant. Proskauer Rose LLP, New York (Neil H. Abramson of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Jane S. Solomon, J.), entered June 1, 2007, dismissing this proceeding to challenge a final determination of the City Human Rights Commission of no probable cause for petitioner's discrimination complaint, unanimously affirmed, without costs.

 A petition for review of an agency determination cannot go forward without joining that agency in the proceeding (see Matter of Solid Waste Servs., Inc. v. New York City Dept. of Envtl. Protection, 29 A.D.3d 318, 319, 814 N.Y.S.2d 151 [2006], lv. denied 7 N.Y.3d 710, 822 N.Y.S.2d 758, 855 N.E.2d 1173 [2006];  see also Matter of Okoumou v. Community Agency for Senior Citizens, Inc., 17 Misc.3d 827, 832, 833, 842 N.Y.S.2d 881 [2007] ).   Here, neither the City Commission nor its chairperson was joined as a party, necessitating dismissal.

Even if the petition had not been denied for failure to name the City Commission as a respondent, we would find that the determination was supported by substantial evidence (see Matter of New Venture Gear, Inc. v. New York State Div. of Human Rights, 41 A.D.3d 1265, 839 N.Y.S.2d 375 [2007] ), the City Commission's investigation was sufficient (see Stern v. New York City Commn. on Human Rights, 38 A.D.3d 302, 830 N.Y.S.2d 655 [2007] ), and the purported “new evidence” provided no basis for disturbing the Commission's determination.