| Matter of Eastport Assoc., Inc. v New York State Div. of HumanRights |
| 2010 NY Slip Op 02145 [71 AD3d 890] |
| March 16, 2010 |
| Appellate Division, Second Department |
| In the Matter of Eastport Associates, Inc., et al., Petitioners/CrossRespondents, v New York State Division of Human Rights, Respondent/CrossPetitioner, et al., Respondent. |
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Proceeding pursuant to Executive Law § 298 to review a determination of theCommissioner of the New York State Division of Human Rights dated August 4, 2008, whichadopted the recommendation and findings of an administrative law judge dated April 10, 2008,made after a hearing, finding that the petitioner discriminated against the complainant in theterms, conditions, and privileges of employment because of his sex and that the complainant wassubjected to a hostile work environment because of his sex in violation of the Executive Law§ 296, and awarded the complainant the principal sums of $2,192.50 in damages for backpay and $15,000 in compensatory damages for mental anguish, and the New York State Divisionof Human Rights cross-petitions pursuant to Executive Law § 298 to enforce thedetermination.
Adjudged that the petition is dismissed as abandoned (see 22 NYCRR 670.8 [e] [1];670.17 [b]), without costs or disbursements; and it is further,
Adjudged that the cross petition is granted, the determination is confirmed, without costs ordisbursements, and the petitioners are directed to pay the complainant the sum of $2,192.50, plusinterest at the rate of 9% per year from May 8, 2006, and the sum of $15,000, plus interest at therate of 9% per year, from August 4, 2008.
Determinations of the New York State Division of Human Rights (hereinafter the Division)are accorded "considerable deference due to its expertise in evaluating discrimination claims"(Matter of Matteo v New York State Div. of Human Rights, 306 AD2d 484, 485 [2003];see Matter of Club Swamp Annex v White, 167 AD2d 400, 401 [1990]). A determinationof the Division 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 HumanRights, 306 AD2d at 485, quoting Matter of Mize v State Div. of Human Rights, 33NY2d 53, 56 [1973]; see Matter of Imperial Diner v State Human Rights Appeal Bd., 52NY2d 72, 79 [1980]).[*2]
Sexual harassment based upon a hostile workenvironment exists under Executive Law § 296 (1) when "the workplace is permeated withdiscriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter theterms 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] [internal quotationmarks omitted] [construing title VII of the Civil Rights Act of 1964, 42 USC § 2000eet seq. (hereinafter title VII)]). "The law forbids not only opposite-sex sexual harassmentin the workplace, but same-sex sexual harassment as well" (Matter of State Div. of Human Rights v Stoute, 36 AD3d 257, 263[2006], citing Oncale v Sundowner Offshore Services, Inc., 523 US 75 [1998][construing title VII]; see Matter ofState Div. of Human Rights v Dom's Wholesale & Retail Ctr., Inc., 18 AD3d 335, 336[2005]).
Here, the Division's determination that the complainant was subjected to a hostile workenvironment, based on sex, that led to his constructive discharge is supported by substantialevidence on the record considered as a whole (see Executive Law § 296 [1];Matter of State Div. of Human Rights v Dom's Wholesale & Retail Ctr., Inc., 18 AD3dat 336; see also Matter of State Div. of Human Rights v Stoute, 36 AD3d at 265-266).
The Division properly determined that the petitioner Eastport Associates, Inc. (hereinafterEastport), is liable for the discriminatory conduct by the petitioner T.J. Miskovsky, a co-ownerand president of Eastport (see Matter of Father Belle Community Ctr. v New York State Div.of Human Rights, 221 AD2d 44 [1996]). In addition, the Division properly determined thatMiskovsky is individually liable to the complainant based on his ownership interest in Eastport(see Matter of State Div. of HumanRights v Koch, 60 AD3d 777, 777-778 [2009]; Gallegos v Elite Model Mgt. Corp., 28 AD3d 50, 60 [2005]).
The award of the sum of $2,192.50 in damages for back pay is supported by substantialevidence as well (see Executive Law § 297 [4] [c]; Matter of Hilal v New York State Div. ofHuman Rights, 57 AD3d 898, 899 [2008]; Matter of Club Swamp Annex vWhite, 167 AD2d at 402). The Division did not err in awarding pre-determination interest onthe back pay award from May 8, 2006 (see Matter of Aurecchione v New York State Div. ofHuman Rights, 98 NY2d 21, 26-27 [2002]). The award for compensatory damages formental anguish "must be upheld if it is reasonably related to the wrongdoing, is supported bysubstantial evidence, and is similar to comparable awards for similar injuries" (Matter ofState Div. of Human Rights v Stoute, 36 AD3d at 266, citing Matter of New York CityTr. Auth. v State Div. of Human Rights, 78 NY2d 207, 218-219 [1991]). Under thecircumstances presented here, that award is supported by substantial evidence, and is reasonablyrelated to the wrongdoing (see Matter of State Div. of Human Rights v Dom's Wholesale &Retail Ctr., Inc., 18 AD3d at 336; see also Matter of State Div. of Human Rights vStoute, 36 AD3d at 266-267). Skelos, J.P., Florio, Hall and Austin, JJ., concur.