State Division of Human Rights v. National Economic Development Ass'n

Silverman, J., dissents in a memorandum as follows:

I would not grant a final order on default at this stage but would direct a hearing as to various issues on which it seems to me the record is inadequate for us to be able to render a final determination. These issues include: 1. Jurisdiction of the person of respondent. An enforcement proceeding under section 298 of the Executive Law is apparently a special proceeding. Apparently respondent is no longer in New York. It seems unlikely that mailing the notice of motion to respondent and to an attorney is valid service (the attorney represented respondent before the Human Rights Division but apparently only to the extent of requesting an adjournment). (Cf. CPLR 403, subd [c]; 311, subd 1; General Associations Law, § 13.) 2. The division did not find the amount to be awarded as compensation for loss of earnings but merely set forth a method for computing it. Among the items now claimed by the employee is $2,000 as “estimated value of pension and annuity that would have been earned,” etc. This is, as it says, an “estimate.” Perhaps the amount could be made certain by calculation on settlement of the order; otherwise there would have to be an inquest before a court or referee (see CPLR 3215, subds [a], [b]). Settle order.