IN RE: ROCHESTER INSTITUTE OF TECHNOLOGY

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: ROCHESTER INSTITUTE OF TECHNOLOGY, Petitioner–Respondent, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Respondent–Petitioner, Eileen Lieb, Respondent.

1230

Decided: February 01, 2019

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND NEMOYER, JJ. THE WOLFORD LAW FIRM, LLP, ROCHESTER (MARY E. SHEPARD OF COUNSEL), FOR PETITIONER–RESPONDENT. CAROLINE J. DOWNEY, GENERAL COUNSEL, BRONX (AARON M. WOSKOFF OF COUNSEL), FOR RESPONDENT–PETITIONER.

MEMORANDUM AND ORDER

It is hereby ORDERED that the determination is unanimously confirmed without costs, the petition is dismissed, the cross petition is granted insofar as it seeks confirmation of the determination, and petitioner-respondent is directed to pay to the Comptroller of the State of New York the sum of $ 5,000 for a civil fine and penalty, with interest at the rate of 9% per annum commencing October 15, 2015.

Memorandum: Petitioner-respondent (petitioner) commenced this proceeding pursuant to CPLR article 78 and Executive Law § 298 seeking to annul the determination of respondent-petitioner New York State Division of Human Rights (SDHR) that assessed a $ 5,000 civil penalty, with statutory interest accruing from the date of SDHR's final determination, October 15, 2015, based on an adjudication that petitioner subjected respondent Eileen Lieb to discrimination on the basis of disability by improperly prorating her pay increase because she had previously been out of work on disability leave.  SDHR filed a cross petition seeking to confirm and enforce the determination.

Initially, we note that this matter was properly transferred to us from Supreme Court pursuant to CPLR 7804(g) because it initially involved a substantial evidence question as specified by CPLR 7803(4).  The parties subsequently settled with respect to the substantial evidence question, however, leaving only petitioner's challenge to the civil penalty.  Although there is no remaining substantial evidence question, we address the merits of the issue raised by petitioner in the interest of judicial economy (see Matter of Panek v. Bennett, 38 A.D.3d 1251, 1252, 834 N.Y.S.2d 894 [4th Dept. 2007] ).

We reject petitioner's contention that SDHR's imposition of a civil penalty was excessive and arbitrary and capricious.  It is well settled that “[j]udicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law ․ [A] penalty must be upheld unless it is ‘so disproportionate to the offense as to be shocking to one's sense of fairness,’ thus constituting an abuse of discretion as a matter of law” (Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001], rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773 [2001]; see Matter of Stellar Dental Mgt. LLC v. New York State Div. of Human Rights, 162 A.D.3d 1655, 1658, 80 N.Y.S.3d 757 [4th Dept. 2018] ).  Here, SDHR's award of a civil fine and penalty of $ 5,000 is not shocking to our sense of fairness (see Matter of County of Erie v. New York State Div. of Human Rights, 121 A.D.3d 1564, 1566, 993 N.Y.S.2d 849 [4th Dept. 2014] ).

We further reject petitioner's contention that we should toll the statutory interest on the civil fine and penalty that was provided in the determination.  Although petitioner contends that allowing interest to accrue from the date of SDHR's final determination would penalize petitioner for SDHR's delay in filing the administrative record, “interest is not a penalty,” and instead “represents the cost of having the use of another person's money for a specified period” (Matter of Aurecchione v. New York State Div. of Human Rights, 98 N.Y.2d 21, 27, 744 N.Y.S.2d 349, 771 N.E.2d 231 [2002] [internal quotation marks omitted] ).  Thus, petitioner, “ ‘who has actually had the use of the money, has presumably used the money to its benefit and, consequently, has realized some profit, tangible or otherwise, from having it in hand’ ” (id., quoting Love v. State of New York, 78 N.Y.2d 540, 545, 577 N.Y.S.2d 359, 583 N.E.2d 1296 [1991] ).  Consequently, statutory interest on the $ 5,000 civil penalty shall accrue, as provided in the determination, from October 15, 2015.