| Matter of Hilal v New York State Div. of Human Rights |
| 2008 NY Slip Op 10164 [57 AD3d 898] |
| December 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of Fayiz Hilal et al., Petitioners, v New York StateDivision of Human Rights et al., Respondents. |
—[*1] Caroline J. Downey, Bronx, N.Y. (Peter G. Buchenholz of counsel), for respondent New YorkState Division of Human Rights.
Proceeding pursuant to Executive Law § 298 to review a determination of the New YorkState Division of Human Rights dated March 16, 2007, which, after a hearing, inter alia, found that thepetitioners unlawfully discriminated against the complainant in relation to her employment by subjectingher to a hostile work environment, awarded the complainant the principal sums of $2,160 in damagesfor back pay and $35,000 in compensatory damages for mental anguish, and directed that the petitionerFayiz Hilal was personally liable for the damages award. The New York State Division of HumanRights cross-petitions to enforce its determination.
Adjudged that the branch of the petition which is to annul so much of the determination as directedthat the petitioner Fayiz Hilal was personally liable for the damages award is granted, on the law,without costs or disbursements, the petition is otherwise denied, that portion of the determination isannulled, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on themerits; and it is further,
Adjudged that the branch of the cross petition which is to enforce so much of the determination asdirected that the petitioner Fayiz Hilal was personally liable for the damages award is denied, on thelaw, without costs or disbursements, and the cross petition is otherwise granted.
Determinations of the New York State Division of Human Rights (hereinafter the Division) [*2]are accorded "considerable deference due to its expertise in evaluatingdiscrimination claims" (Matter of Matteo v New York State Div. of Human Rights, 306 AD2d484, 485 [2003]; see Matter of Club Swamp Annex v White, 167 AD2d 400, 401 [1990]). Adetermination may not be set aside " 'merely because the opposite decision would have beenreasonable and also sustainable' " (Matter of Matteo v New York State Div. of Human Rights,306 AD2d at 485, quoting Matter of Mize v State Div. of Human Rights, 33 NY2d 53, 56[1973]; see Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72, 79[1980]).
Sexual harassment based upon a hostile work environment exists when "the workplace ispermeated with 'discriminatory intimidation, ridicule and insult' that is sufficiently severe or pervasive toalter the terms or conditions of employment" (Vitale v Rosina Food Prods., 283 AD2d 141,143 [2001], quoting Harris v Forklift Systems, Inc., 510 US 17, 21 [1993]). Here, theDivision's determination that the complainant was subjected to a hostile work environment leading toher constructive discharge is supported by substantial evidence on the record considered as a whole(see Executive Law § 296 [1]; Matter of R & B Autobody & Radiator, Inc. v NewYork State Div. of Human Rights, 31 AD3d 989, 991 [2006]; Matter of Under the Elms vTolbert, 1 AD3d 373, 374 [2003]; Matter of Father Belle Community Ctr. v New York StateDiv. of Human Rights, 221 AD2d 44, 46-47 [1996]; see also Ortega v Bisogno &Meyerson, 2 AD3d 607, 608-609 [2003]).
Contrary to the petitioners' contention, the award of $2,160 in damages for back pay wassupported by the evidence (see Executive Law § 297 [4] [c]; Matter of ClubSwamp Annex v White, 167 AD2d at 402; cf. Matter of Cosmos Forms v State Div. ofHuman Rights, 150 AD2d 442, 443 [1989]).
However, it is correctly conceded that the petitioner Fayiz Hilal may not be held personally liablefor the damages awarded by the Commissioner.
The petitioner's remaining contentions are either unpreserved for appellate review or without merit.Rivera, J.P., Dillon, Covello and McCarthy, JJ., concur.