Davan v. Mercado (249 A.D.2d 171, 1998)

—Judgment, Supreme Court, New York County (Carol Huff, J.), entered July 26, 1996, which denied petitioner’s application to annul respondent State Division of Human Rights’ determination dismissing so much of petitioner’s complaint as alleges employment discrimination based upon marital status and disability, and dismissed the petition, unanimously affirmed, without costs.

Concerning the marital status claim, even now petitioner fails to adduce any evidence in support thereof. Concerning the disability claim, first asserted in an amended complaint filed beyond the one-year time limit in Executive Law § 297 (5), respondent’s finding that petitioner’s employer did not receive notice thereof by reason of petitioner’s original, but “materially different”, charges of discrimination based on marital status and age, and that the claim, therefore, is not saved by any relation back doctrine, is not arbitrary and capricious (see, Pejic v Hughes Helicopters, 840 F2d 667, 675). We have considered petitioner’s other arguments and find them to be without merit. Concur — Sullivan, J. P., Rosenberger, Rubin, Tom and Andrias, JJ.