EMIL v. DEWEY

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The complaint should be dismissed pursuant to subdivision 9 of section 297 of the Executive Law. The record indicates, and it is conceded, that prior to commencing this action the plaintiff had filed a complaint with the State Division of Human Rights. Although the plaintiff withdrew that complaint prior to any determination by the division, there is no showing this was done for administrative convenience. Under these circumstances the statute (Executive Law, § 297, subd 9) precludes the plaintiff from commencing an action in court based on the same incident.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

Order affirmed.