Opinion
July 27, 1970
Proceeding by persons against whom an order has been made by the Commissioner of the State Division of Human Rights, dated June 19, 1969, to review said order; and cross proceeding by said Division of Human Rights, pursuant to section 298 Exec. of the Executive Law, for enforcement of the order. The proceeding to review the order is dismissed. Upon the cross proceeding for enforcement, the order is modified, on the law, by reducing in subdivision (a) of the second ordering provision thereof, which directed Adolfs and Hannelore Ernsteins to pay compensatory damages to the complainant, Rachel Wilson Lee, the amount of $500 to $39; and cross proceeding for enforcement granted to the extent that the order of the Commissioner shall be enforced as modified herein. No costs are awarded to any of the parties. Althougth a person aggrieved by an order of the State Division of Human Rights may appeal therefrom to the Human Rights Appeal Board, and this is the appropriate remedy in the first instance, nevertheless, if the division proceeds in this court, pursuant to section 298 Exec. of the Executive Law, for enforcement of the order, this court is required to decide whether there is substantial evidence to sustain the order. This court may reverse or modify the order and, if it modifies the order, it may direct its enforcement as modified. In our opinion, the compensatory damages which may be awarded to a complainant in a proceeding under the Executive Law is limited to out-of-pocket expenses and does not include damages for mental distress. Moreover, we find sufficient evidence of mental distress was not adduced to justify the award of compensatory damages therefor, assuming that the Legislature intended that compensatory damages should include damages for mental distress (cf. Matter of State Division of Human Rights v. Luppino, 35 A.D.2d 107). Martuscello, Acting P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.