CERIO v. Wayne H.K., Respondent. (1999)

Petitioner was accused of discriminating against respondent Wayne H.K. (complainant) based on complainant's HIV-positive status.   The Commissioner of respondent New York State Division of Human Rights issued findings of fact that petitioner discriminated against complainant by overcharging him for routine cleaning, scheduling his appointments at the end of the day and week, and improperly draping all surfaces of the operatory when treating him.   The Commissioner awarded complainant $7,500 in compensatory damages for mental anguish and humiliation.

 The finding that complainant was overcharged for services is supported by “sufficient evidence on the record considered as a whole” (Executive Law § 298;  cf., Youth Action Homes v. State Div. of Human Rights, 231 A.D.2d 7, 12, 659 N.Y.S.2d 447;  see generally, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   The record, however, does not support the finding that petitioner discriminated against complainant by draping all surfaces of the operatory when treating him.   The experts agreed that some professional judgment must be exercised in implementing appropriate barriers for surfaces that might become contaminated by the blood of an HIV-positive patient (see, Syracuse Community Health Ctr. v. Wendi A. M., 198 A.D.2d 830, 831, 604 N.Y.S.2d 406, affd. 86 N.Y.2d 856, 635 N.Y.S.2d 938, 659 N.E.2d 760).   Additionally, the scheduling of complainant's appointments at the end of the day and week is justified by the additional precautions with respect to the draping of surfaces of the operatory.

 We agree with petitioner that the award of $7,500 for mental anguish and humiliation is excessive and reduce the award to $1,000 (see, Matter of Buffalo Athletic Club v. New York State Div. of Human Rights, 249 A.D.2d 986, 672 N.Y.S.2d 210).   We thus modify the determination and grant in part the petition by vacating the findings that petitioner discriminated against complainant by draping all surfaces of the operatory when treating him and scheduling appointments at the end of the day and week and by reducing the award of $7,500 for mental anguish and humiliation to $1,000.   We grant in part the cross petition for enforcement and direct petitioner to pay complainant $1,000 for mental anguish and humiliation.

Determination unanimously modified on the law and as modified confirmed without costs and petition and cross petition granted in part.

MEMORANDUM: