IN RE: EASTPORT ASSOCIATES

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

IN RE: EASTPORT ASSOCIATES, INC., et al., petitioners/cross respondents, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, etc., respondent/cross petitioner, et al., respondent.

Decided: March 16, 2010

PETER B. SKELOS, J.P., ANITA R. FLORIO, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ. Caroline J. Downey, Bronx, N.Y. (Toni Ann Hollifield of counsel), for respondent/cross-petitioner.

Proceeding pursuant to Executive Law § 298 to review a determination of the Commissioner of the New York State Division of Human Rights dated August 4, 2008, which adopted the recommendation and findings of an administrative law judge dated April 10, 2008, made after a hearing, finding that the petitioner discriminated against the complainant in the terms, conditions, and privileges of employment because of his sex and that the complainant was subjected to a hostile work environment because of his sex in violation of the Executive Law § 296, and awarded the complainant the principal sums of $2,192.50 in damages for back pay and $15,000 in compensatory damages for mental anguish, and the New York State Division of Human Rights cross-petitions pursuant to Executive Law § 298 to enforce the determination.

ADJUDGED that the petition is dismissed as abandoned (see 22 NYCRR 670.8[e] [i];  670.17[b] ), without costs or disbursements;  and it is further,

ADJUDGED that the cross petition is granted, the determination is confirmed, without costs or disbursements, and the petitioners are directed to pay the complainant the sum of $2,192.50, plus interest at the rate of 9% per year from May 8, 2006, and the sum of $15,000, plus interest at the rate of 9% per year, from August 4, 2008.

 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 of the Division 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 under Executive Law § 296(1) 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 Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 [internal quotation marks omitted] [construing Title VII of the Civil Rights Act of 1964, 42 USC § 2000e, et seq. (hereinafter Title VII) ] ).  “The law forbids not only opposite-sex sexual harassment in the workplace, but same-sex sexual harassment as well” (Matter of State Div. of Human Rights v. Stoute, 36 A.D.3d 257, 263, 826 N.Y.S.2d 122, citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 [construing Title VII];  see Matter of State Div. of Human Rights v. Dom's Wholesale & Retail Ctr., Inc., 18 A.D.3d 335, 336, 795 N.Y.S.2d 537).

 Here, the Division's determination that the complainant was subjected to a hostile work environment, based on sex, that led to his constructive discharge is supported by substantial evidence on the record considered as a whole (see Executive Law § 296[1];  Matter of State Div. of Human Rights v. Dom's Wholesale & Retail Ctr., Inc., 18 A.D.3d at 336, 795 N.Y.S.2d 537;  see also Matter of State Div. of Human Rights v. Stoute, 36 A.D.3d at 265-266, 826 N.Y.S.2d 122).

 The Division properly determined that the petitioner Eastport Associates, Inc. (hereinafter Eastport), is liable for the discriminatory conduct by the petitioner T.J. Miskovsky, a co-owner and president of Eastport (see Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 642 N.Y.S.2d 739).   In addition, the Division properly determined that Miskovsky is individually liable to the complainant based on his ownership interest in Eastport (see Matter of State Div. of Human Rights v. Koch, 60 A.D.3d 777, 777-778, 875 N.Y.S.2d 180;  Gallegos v. Elite Model Mgt. Corp., 28 A.D.3d 50, 60, 807 N.Y.S.2d 44).

 The award of the sum of $2,192.50 in damages for back pay is supported by substantial evidence as well (see Executive Law § 297[4][c];  Matter of Hilal v. New York State Div. of Human Rights, 57 A.D.3d 898, 899, 869 N.Y.S.2d 613;  Matter of Club Swamp Annex v. White, 167 A.D.2d at 402, 561 N.Y.S.2d 609).   The Division did not err in awarding pre-determination interest on the back pay award from May 8, 2006 (see Matter of Aurecchione v. New York State Div. of Human Rights, 98 N.Y.2d 21, 26-27, 744 N.Y.S.2d 349, 771 N.E.2d 231).   The award for compensatory damages for mental anguish “must be upheld if it is reasonably related to the wrongdoing, is supported by substantial evidence, and is similar to comparable awards for similar injuries” (Matter of State Div. of Human Rights v. Stoute, 36 A.D.3d at 266, 826 N.Y.S.2d 122, citing Matter of New York City Tr. Auth. v. State Div. of Human Rights, 78 N.Y.2d 207, 218-219, 573 N.Y.S.2d 49, 577 N.E.2d 40).   Under the circumstances presented here, that award is supported by substantial evidence, and is reasonably related to the wrongdoing (see Matter of State Div. of Human Rights v. Dom's Wholesale & Retail Ctr., Inc., 18 A.D.3d at 336, 795 N.Y.S.2d 537;  see also Matter of State Div. of Human Rights v. Stoute, 36 A.D.3d at 266-267, 826 N.Y.S.2d 122).

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