IN RE: NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

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

IN RE: NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Petitioner, v. STATE DIVISION OF HUMAN RIGHTS et al., Respondents.

Decided: July 24, 1997

Before CARDONA, P.J., and MIKOLL, CREW, CASEY and YESAWICH, JJ. Anthony J. Annucci,Department of Correctional Services (Leonard A. Mancini, of counsel), Albany, for petitioner. Lawrence Kunin, Division of Human Rights (Sheila A. Donohue, of counsel), New York City, for State Division of Human Rights, respondent.

Proceeding pursuant to Executive Law § 298 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent State Division of Human Rights which, inter alia, found petitioner guilty of an unlawful discriminatory practice based on race.

 The only issue to be considered in this proceeding is whether an award to respondent Nicholas Gant of $75,000 in compensatory damages, which was sustained by respondent State Division of Human Rights, is supported by sufficient evidence.   We hold the award to be excessive.   An award of compensatory damages must be based on pecuniary loss and emotional injuries actually suffered as a result of discrimination, and care must be taken to assure that the award is not punitive (see, Matter of New York State Dept. of Correctional Servs. v. New York State Div. of Human Rights, 225 A.D.2d 856, 858-859, 638 N.Y.S.2d 827;  Matter of New York State Dept. of Correctional Servs. v. State Div. of Human Rights, 215 A.D.2d 908, 910, 626 N.Y.S.2d 588).   Although Gant's testimony established that he did suffer humiliation and mental anguish, he did not detail much in the way of severity, consequence or duration of the mental anguish caused by the discrimination.   Furthermore, Gant admitted that his anxiety and stress were intermittent only.   In these circumstances, we find that the evidence cannot support an award in excess of $15,000.

ADJUDGED that the determination is modified, without costs, by reducing the amount awarded for mental anguish and humiliation from $75,000 to $15,000, and, as so modified, confirmed.

CASEY, Justice.

CARDONA, P.J., and MIKOLL, CREW and YESAWICH, JJ., concur.

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