IN RE: AMG MANAGING PARTNERS (2017)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Diane Y. Devlin, J.], entered May 26, 2016) to review a determination of respondent-petitioner New York State Division of Human Rights.  The determination, among other things, ordered petitioners-respondents Michael Aronica and Michael Giangreco and respondent John Suppa to pay respondent-petitioner Brittany Fragale the sum of $65,000 for compensatory damages incurred as a result of discriminatory actions.

It is hereby ORDERED that the determination so appealed from is unanimously modified on the law and the petition is granted in part by reducing the award of compensatory damages for mental anguish and humiliation to $25,000, and as modified the determination is confirmed without costs, and the cross petitions are granted in part and petitioners-respondents and respondent John Suppa are directed to pay respondent-petitioner Brittany Fragale the sum of $25,000 with interest at the rate of 9% per annum, commencing February 5, 2016, to pay respondent-petitioner Brittany Fragale $5,720 in lost wages with interest at the rate of 9% per annum, commencing February 5, 2016, and to pay the State of New York a civil penalty in the amount of $15,000 with interest at the rate of 9% per annum, commencing February 5, 2016, and petitioners-respondents and Suppa are directed to attend a training session in the prevention of unlawful discrimination.

The ALJ, “after a full consideration of many factors, including [complainant's] character and possible self-interest, decided to credit [her] testimony and reject that of [an opposing witness].  In our view, those credibility determinations are unassailable and the testimony thus credited provided substantial evidence for the determinations under review” (Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443).

We agree with petitioners, however, that the award for mental anguish and humiliation is excessive.  “In reviewing an award for mental anguish and humiliation, the court should ‘determine whether the relief was reasonably related to the wrongdoing, whether the award was supported by evidence before the Commissioner, and how it compared with other awards for similar injuries' “ (Father Belle Community Ctr., 221 A.D.2d at 57).  We conclude that, although the relief granted herein was reasonably related to the wrongdoing, the amount of the award is inappropriate when compared to other awards for similar injuries.  While petitioners' conduct was “unquestionably reprehensible [,] ․ ‘care must be taken to insure that the award is compensatory and not punitive in nature’ “ (Matter of New York State Div. of Human Rights v Young Legends, LLC, 90 AD3d 1265, 1269–1270).  Based on the evidence in this case, including evidence of complainant's own sexually inappropriate conduct at the workplace, the short duration of the conduct, and the severity of the conduct, we conclude that the Commissioner's award is excessive and must be reduced to $25,000 (see id. at 1270;  Matter of State of New York v New York State Div. of Human Rights, 284 A.D.2d 882, 884;  cf.  Father Belle Community Ctr., 221 A.D.2d at 57–58).

Frances E. Cafarell

Clerk of the Court