IN RE: NEW YORK STATE DIVISION OF HUMAN RIGHTS (2009)

Petitioner commenced this proceeding seeking to enforce its determination awarding complainant, an employee of respondent Village Plaza Family Restaurant, Inc. (Restaurant), damages based on sexual harassment.

 We note at the outset that Supreme Court erred in transferring the proceeding to this Court pursuant to Executive Law § 298 inasmuch as the determination was made following a hearing pursuant to Executive Law § 297(4)(b) (see Matter of New York State Div. of Human Rights v. Atlantic City Sub Shop, 27 A.D.3d 853, 810 N.Y.S.2d 572).   Nevertheless, we address the merits of the issues raised by petitioner in the interest of judicial economy (see generally Matter of Moulden v. Coughlin, 210 A.D.2d 997, 621 N.Y.S.2d 250).

 In reviewing an administrative determination, this Court “may not substitute its judgment for that of ․ the administrative board or agency” (State Div. of Human Rights v. Rochester Prods. Div. of Gen. Motors Corp., 112 A.D.2d 785, 785, 492 N.Y.S.2d 282;  see generally § 298;  300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   Here, petitioner's determination is supported by the requisite substantial evidence, and we therefore grant the petition.   We agree with petitioner that the record supports its determination that complainant was subjected to a hostile work environment based on evidence that she was forced to submit to a constant barrage of inappropriate and demeaning comments, unwanted physical contact, and vulgar sexual gestures during her term of employment (see generally Executive Law § 296[1][a] ).   We further conclude that there is substantial evidence in the record to support petitioner's determination that the Restaurant is liable for the hostile work environment created by respondent employee of the Restaurant (see Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 54-55, 642 N.Y.S.2d 739, lv. denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502).

It is hereby ORDERED that said petition is unanimously granted without costs and respondents are directed to pay complainant the sum of $7,350.75 for back pay, with interest at the rate of 9% per annum, commencing July 7, 2002, and the sum of $65,000 for mental anguish and humiliation, with interest at the rate of 9% per annum, commencing November 14, 2006.

MEMORANDUM: