IN RE: NEW YORK STATE DIVISION OF HUMAN RIGHTS (2026)

Application pursuant to Executive Law § 298 to enforce an order of petitioner State Division of Human Rights, dated September 21, 2023, which, among other things, found that respondent D. Auxilly NYC LLC discriminated against the complainant on the basis of sexual orientation in violation of the New York State Human Rights Law (NYSHRL), awarded complainant compensatory damages in the principal amount of $5,000 for mental pain and suffering, and assessed a civil penalty in the principal amount of $20,000 against D. Auxilly (transferred to this Court by order of Supreme Court, Bronx County [Myrna Socorro, J.], entered September 16, 2025), unanimously granted, and the order confirmed, without costs.

Complainant, at the time a Missouri resident, emailed D. Auxilly, a New York based business that produces and sells attire, including bridal outfits, to inquire about a bridal jumpsuit she had seen advertised on one or more of D. Auxilly's social media pages.  Specifically, complainant requested information about payment options for the jumpsuit.  Complainant also informed D. Auxilly that as her fiancé had “fallen in love” with it after struggling to find anything she liked, complainant wanted to purchase it for their upcoming wedding.  Dominique Galbraith, D. Auxilly's owner and operator, responded on behalf of D. Auxilly advising complainant of the payment requirements of the business but that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs.  She also urged complainant and her fiancé to reconsider getting married.

Complainant filed a complaint with petitioner the New York State Division of Human Rights (the Division) for discrimination based on her sexual orientation.  In connection with the public hearing before the Administrative Law Judge (ALJ), the parties stipulated to the content of the complainant's and Galbraith's email exchange, that Galbraith continued to believe that it would violate her sincerely held religious beliefs to make an outfit for a same-sex wedding, and that the complainant was not a New York resident and not in New York at the time the communication and alleged discrimination took place.  Complainant testified at the public hearing about the hurt and mental anguish she felt due to D. Auxilly's response.  D. Auxilly did not present any witnesses or evidence, and Galbraith exercised her right not to testify.

In its recommendation after the hearing, the ALJ proposed that the complaint be sustained, monetary damages be awarded to complainant, and a civil fine be assessed against D. Auxilly for violation of the NYSHRL.  The Commissioner's final order adopted the ALJ's recommendation on liability and damages, finding, among other things, that D. Auxilly had discriminated against complainant because of her sexual orientation.  The Commissioner concluded that the Division had jurisdiction because D. Auxilly is a New York business selling goods in New York, marketed as “made in New York,” the transaction would have occurred in New York, D. Auxilly would have done the required work in New York, and the money paid for the garment would have landed in New York, thus, the discrimination occurred in New York. The Commissioner also found that D. Auxilly's First Amendment rights to free speech and the free exercise of religion were not violated because NYSHRL is generally applicable and neutral and does not target any specific beliefs.  Finally, the Commissioner found that complainant suffered emotional distress and awarded her $5,000, and, in furtherance of the goal of deterrence, assessed a civil fine of $20,000 against D. Auxilly.

Initially, the Division had jurisdiction in the instant matter because the discriminatory conduct occurred in New York and its impact was felt in the state (see Syeed v Bloomberg L.P., 41 NY3d 446, 451 [2024] ).  Complainant reached out to D. Auxilly, a business which markets its clothes as “made in New York”, seeking to purchase goods from this New York business.  D. Auxilly's discriminatory conduct based upon complainant's sexual orientation deprived complainant of an opportunity to engage in commercial activity here.  Indeed, by affirmatively labeling its products as being “made in New York” but then refusing to sell those same “New York” products to people of a certain sexual orientation, D. Auxilly implicitly associated the City and State of New York with a discriminatory act, and the impact test is satisfied.  Additionally, the fact that complainant communicated with D. Auxilly online through social media rather than traveling to a New York storefront does not deprive petitioner of jurisdiction over this matter.

The Division's findings are amply supported by substantial evidence in the record (Executive Law § 298;  see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 [1978] ), which includes the very communications in which complainant sought to purchase a jumpsuit from D. Auxilly and D. Auxilly refused to sell it because it would be used in a same-sex wedding.  Same-sex marriage is “inextricably tied to sexual orientation” (Matter of Gifford v McCarthy, 137 AD3d 30, 37 [3d Dept 2016] ).  Moreover, D. Auxilly posted on social media that it indeed refused to sell a garment to a woman because she happened to be engaged to another woman.  Such acts fall within the prohibition of discrimination in a public place of accommodation (Executive Law § 296[2][a] ).

The First Amendment does not shield D. Auxilly from liability for this discrimination.  Unlike the baker in Masterpiece Cakeshop v Colorado Civil Rights Comm. (584 US 617 [2018] ), D. Auxilly was not asked to design and create customized items which might constitute an “expressive statement.”  Nor was it tasked with creating a customized wedding website, as in 303 Creative LLC v Elenis (600 US 570 [2023] ).  Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public.  While the garment likely would need to be adjusted for sizing, this potential sizing alteration would not constitute an expressive statement.  Neither would D. Auxilly's “speech” be compelled here by requiring it to sell the previously designed and marketed garment (see State v Arlene's Flowers, Inc., 193 Wash2d 469, 536 [Wash 2019], cert denied 141 S Ct 2884 [2021];  Matter of Gifford, 137 AD3d at 40–42;  see also Civil Rights Dept. v Cathy's Creations, Inc., 109 Cal App5th 204 [Cal App 2025] ).

Enforcement of the NYSHRL here also does not violate D. Auxilly's right to free exercise of religion.  The statute is “neutral, both on its face and due to a lack of evidence that it targets religious conduct for a distinctive treatment” (Matter of Ferrelli v State of New York, 226 AD3d 504, 505 [1st Dept 2024] ).

Finally, we find the awards of compensatory damages and civil penalties proper.  The award to complainant is reasonably related to the wrongdoing, supported by evidence before the Division, and in line with other awards for similar injuries (see Matter of New York State Unified Ct. Sys. v New York State Div. of Human Rights, 180 AD3d 555, 557 [1st Dept 2020], lv denied 35 NY3d 916 [2020] ).  Likewise, the civil penalty of $20,000 is neither disproportionate to the offense nor does it shock the conscience (see id.).

We have considered the D. Auxilly's remaining arguments and find them unavailing.