Colleen D. Duffy, J.P.
Deborah A. Dowling
Janice A. Taylor
Laurence L. Love, JJ.
Melissa Franco, Bronx, NY (Abbey J. Marr of counsel), for petitioner.
DECISION & JUDGMENT
Proceeding pursuant to Executive Law § 298 to enforce a determination of the Commissioner of the New York State Division of Human Rights dated February 24, 2023. The determination adopted the recommendation and findings of an administrative law judge dated April 28, 2022, made after a hearing, finding that the respondents Boston Market Corporation and Nicholas Foreman unlawfully discriminated against the complainant on the basis of her sex, inter alia, awarded her compensatory damages in the principal sum of $75,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessed a civil fine and penalty against the respondents Boston Market Corporation and Nicholas Foreman in the principal sum of $50,000.
ADJUDGED that the petition is granted, without costs or disbursements, to the extent that the portion of the determination finding that the respondent Boston Market Corporation unlawfully discriminated against the complainant on the basis of her sex and awarding her compensatory damages in the principal sum of $75,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessing a civil fine and penalty against the respondent Boston Market Corporation in the principal sum of $50,000 is confirmed, the determination is otherwise annulled, the petition is otherwise denied, the proceeding is otherwise dismissed, and the respondent Boston Market Corporation is directed to pay the complainant compensatory damages in the principal sum of $75,000 for mental anguish, plus interest at the rate of 9% per year from February 24, 2023, and $24,640.50 for attorneys' fees, plus interest at the rate of 9% per year from February 24, 2023, and to pay the New York State Division of Human Rights the principal sum of $50,000, plus interest at the rate of 9% per year from February 24, 2023, as a civil fine and penalty.
The complainant filed a complaint with the New York State Division of Human Rights (hereinafter the SDHR) against the respondents, Boston Market Corporation (hereinafter Boston Market) and Nicholas Foreman, alleging that they subjected her to a hostile work environment on the basis of her sex. After a public hearing, an administrative law judge made a recommendation and findings that the respondents unlawfully discriminated against the complainant on the basis of her sex by subjecting her to a hostile work environment, awarded her compensatory damages in the principal sum of $20,000 for mental anguish and attorneys' fees in the principal sum of $24,640.50, and assessed a civil fine and penalty against the respondents in the principal sum of $10,000. Thereafter, the Commissioner of the SDHR (hereinafter the Commissioner), in a determination dated February 24, 2023, adopted the liability finding and the award for attorneys' fees of the administrative law judge, but awarded the complainant compensatory damages in the principal sum of $75,000 for mental anguish and assessed a civil fine and penalty against the respondents in the principal sum of $50,000. The SDHR subsequently commenced this proceeding pursuant to Executive Law § 298 to enforce the determination, and the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).
Initially, the Supreme Court erred in transferring so much of the proceeding as sought enforcement against Foreman to this Court pursuant to Executive Law § 298. Foreman defaulted in answering the complaint, and the determination against him was made following a hearing pursuant to Executive Law § 297(4)(b) (see Matter of New York State Div. of Human Rights v Village Plaza Family Rest., Inc., 59 AD3d 1038, 1038; Matter of New York State Div. of Human Rights v Atlantic City Sub Shop, 27 AD3d 853, 854). Nevertheless, in the interest of judicial economy, this Court will decide so much of the proceeding as sought enforcement against Foreman on the merits (see Matter of Sahara Constr. Corp. v New York City Off. of Admin. Trials & Hearings, 242 AD3d 998, 1000; Matter of New York State Div. of Human Rights v Village Plaza Family Rest., Inc., 59 AD3d at 1038).
An enforcement proceeding initiated by the SDHR raises the issue of whether its determination was supported by sufficient evidence in the record (see Matter of State Div. of Human Rights v Elite Dental Care, P.C., 237 AD3d 835, 836; Matter of New York State Div. of Human Rights v Boro Park Senior Living Community, LLC, 213 AD3d 671, 672). "The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the SDHR is supported by substantial evidence in the record" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898, 899). "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331 [internal quotation marks omitted]; see Matter of Town of Hempstead v New York State Div. of Human Rights, 215 AD3d 973, 976). "[C]ourts may not weigh the evidence or reject [SDHR's] choice where the evidence is conflicting and room for a choice exists" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 331 [internal quotation marks omitted]; see Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69, 75).
Here, there is substantial evidence in the record to support the Commissioner's determination that Boston Market subjected the complainant to a hostile work environment based on her sex (see Executive Law § 296[1][h]; Matter of State Div. of Human Rights v Adler, 229 AD3d 555, 556; Matter of New York State Div. of Human Rights v Team Taco Mexico, Corp., 140 AD3d 965, 966). However, Foreman may not be held individually liable for the damages awarded by the Commissioner (see Doe v Bloomberg L.P., 36 NY3d 450, 457-458; Matter of Hilal v New York State Div. of Human Rights, 57 AD3d 898, 899). Accordingly, so much of the petition as sought enforcement against Foreman must be denied.
The award of compensatory damages for mental anguish is reasonably related to the wrongdoing, supported by substantial evidence, and comparable to other awards for similar injuries (see Matter of State Div. of Human Rights v Steve's Pier One, Inc., 123 AD3d 728, 729; Matter of State Div. of Human Rights v Koch, 60 AD3d 777, 777).
A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Head Injury Assn., Inc. v New York State Div. of Human Rights, 241 AD3d 1335, 1338; Matter of Thomas v Town of Southeast, N.Y., 168 AD3d 955, 957). Here, we perceive no basis for disturbing the civil fine and penalty assessed (see Matter of New York State Div. of Human Rights v Boro Park Senior Living Community, LLC, 213 AD3d at 673; Matter of New York State Div. of Human Rights v Team Taco Mexico, Corp., 140 AD3d at 967).
The amount of the attorneys' fees awarded to the complainant was reasonable (see Executive Law § 297[10]).
DUFFY, J.P., DOWLING, TAYLOR and LOVE, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court