[2] We turn to the first element of the retaliation claim. Although we have never adopted the "reasonable belief" standard (see Matter of Mohawk Finishing Prods. v State Div. of Human Rights, 57 NY2d 892, 893-894 [1982]), and do not do so here because the parties agree that it applies, Appellate Division and DHR precedent requires CityVision and Renner to demonstrate that they were engaged in protected activity by showing that the initial complaint was [*4]based on a reasonable belief that Pine Ridge had engaged in unlawful housing discrimination (see Matter of New York State Off. of Mental Retardation & Dev. Disabilities [Staten Is. Dev. Ctr.] v New York State Div. of Human Rights, 164 AD2d 208, 210 [3d Dept 1990]; State Div. of Human Rights v GPA Dev. Corp., 2011 NYHUM LEXIS 16, *20 [NY St Div of Human Rights Case Nos. 10122321 & 10122322 (Feb. 1, 2012)]). DHR therefore erred by putting the burden on Pine Ridge and Pentkowski to show that the allegations advanced by CityVision in the initial DHR complaint were made in bad faith. As the Appellate Division concluded, DHR failed to "undertake any analysis as to whether CityVision reasonably believed that Pine Ridge" had engaged in a discriminatory practice during the test call (204 AD3d at 1360). Because DHR failed to make any non-conclusory factual findings on this issue, remittal is necessary so that DHR may determine whether CityVision and Renner established the first element of the retaliation claim.
Accordingly, the judgment should be reversed, with costs, and the matter remitted to the Appellate Division with directions to remand to DHR for further proceedings in accordance with this opinion.
Chief Judge Wilson and Judges Rivera, Garcia, Cannataro, Troutman and Halligan concur.