IN RE: Fayiz HILAL (2008)

Proceeding pursuant to Executive Law § 298 to review a determination of the New York State Division of Human Rights dated March 16, 2007, which, after a hearing, inter alia, found that the petitioners unlawfully discriminated against the complainant in relation to her employment by subjecting her to a hostile work environment, awarded the complainant the principal sums of $2,160 in damages for back pay and $35,000 in compensatory damages for mental anguish, and directed that the petitioner Fayiz Hilal was personally liable for the damages award.   The New York State Division of Human Rights cross-petitions to enforce its determination.

ADJUDGED that the branch of the petition which is to annul so much of the determination as directed that the petitioner Fayiz Hilal was personally liable for the damages award is granted, on the law, without costs or disbursements, the petition is otherwise denied, that portion of the determination is annulled, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits;  and it is further,

ADJUDGED that the branch of the cross petition which is to enforce so much of the determination as directed that the petitioner Fayiz Hilal was personally liable for the damages award is denied, on the law, without costs or disbursements, and the cross petition is otherwise granted.

 Determinations of the New York State Division of Human Rights (hereinafter the Division) are accorded “considerable deference due to its expertise in evaluating discrimination claims” (Matter of Matteo v. New York State Div. of Human Rights, 306 A.D.2d 484, 485, 761 N.Y.S.2d 517;  see Matter of Club Swamp Annex v. White, 167 A.D.2d 400, 401, 561 N.Y.S.2d 609).   A determination may not be set aside “ ‘merely because the opposite decision would have been reasonable and also sustainable’ ” (Matter of Matteo v. New York State Div. of Human Rights, 306 A.D.2d at 485, 761 N.Y.S.2d 517, quoting Matter of Mize v. State Div. of Human Rights, 33 N.Y.2d 53, 56, 349 N.Y.S.2d 364, 304 N.E.2d 231;  see Matter of Imperial Diner v. State Human Rights Appeal Bd., 52 N.Y.2d 72, 79, 436 N.Y.S.2d 231, 417 N.E.2d 525).

 Sexual harassment based upon a hostile work environment exists when “the workplace is permeated with ‘discriminatory intimidation, ridicule and insult’ that is sufficiently severe or pervasive to alter the terms or conditions of employment” (Vitale v. Rosina Food Prods., 283 A.D.2d 141, 143, 727 N.Y.S.2d 215, quoting Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295).   Here, the Division's determination that the complainant was subjected to a hostile work environment leading to her constructive discharge is supported by substantial evidence on the record considered as a whole (see Executive Law § 296[1];  Matter of R & B Autobody & Radiator, Inc. v. New York State Div. of Human Rights, 31 A.D.3d 989, 991, 819 N.Y.S.2d 599;  Matter of Under the Elms v. Tolbert, 1 A.D.3d 373, 374, 766 N.Y.S.2d 876;  Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 46-47, 642 N.Y.S.2d 739;  see also Ortega v. Bisogno & Meyerson, 2 A.D.3d 607, 608-609, 769 N.Y.S.2d 279).

 Contrary to the petitioners' contention, the award of $2,160 in damages for back pay was supported by the evidence (see Executive Law § 297 [4][c];  Matter of Club Swamp Annex v. White, 167 A.D.2d at 402, 561 N.Y.S.2d 609;  cf. Matter of Cosmos Forms v. State Div. of Human Rights, 150 A.D.2d 442, 443, 541 N.Y.S.2d 50).

 However, it is correctly conceded that the petitioner Fayiz Hilal may not be held personally liable for the damages awarded by the Commissioner.

The petitioner's remaining contentions are either unpreserved for appellate review or without merit.