Opinion
May 20, 1971
Present Goldman P.J., Marsh, Witmer, Cardamone and Henry, JJ.
Petition dismissed and cross motion granted, without costs, in accordance with the following memorandum: Petitioners' application for review by this court of the Division's order may not be entertained with respect to its status as a petitioner. It may, however, be treated as an answer to the cross petition of the State Division of Human Rights for an order of enforcement. ( Matter of Moskal v. State Division of Human Rights, 36 A.D.2d 46; Ernsteins v. State Division of Human Rights, 35 A.D.2d 599. ) The Division's cross motion for an order of this court for the enforcement of the Commissioner's order, which was not appealed to the Human Rights Appeal Board, should be granted to the extent warranted by the record. Upon a motion for an enforcement order this court has jurisdiction of the proceeding and the questions determined therein and may make an order modifying such order and enforcing it as modified. (Executive Law, § 298; Matter of Moskal, supra; Ernsteins v. State Division of Human Rights, supra.) The Commissioner determined that respondents Italiano and Wiggins withheld from complainant (Newell) a housing accommodation because of her race and color in violation of the Human Rights Law and orderd them to cease and desist from such acts of discrimination. It also ordered that they take affirmative action to effectuate the purpose of the law specifid in paragraphs (a) through (c) of the order. We find that the ordering provisions of paragraphs (e) (f) (g) (h) and (i) are proper. Since it is not claimed that there has been a vacancy in petitioners' premises the cross petition for enforcement of the provisions of pargraphs (a) and (c) must be denied without prejudice to the right to renew the application upon a proper showing. ( Matter of Moskal v. State Division of Human Rights, supra.) Paragraph (b) required petitioners to pay complainant $250 as compensatory damages. Since this is a civil right granted by statute (Human Rights Law [Executive Law, art. 15], § 291, subd. 2) the quantum of proof supporting the Commissioner's award should not be limited by the standard ordinarily used in common law actions (e.g. Matter of Chance v. Frank's Beauty Salon, 35 A.D.2d 304). The statutory scheme to discourage racial discrimination contemplates the "awarding of compensatory damages to the person aggrieved by such practice" (Human Rights Law [Executive Law, art. 15], § 296, subd. 3; § 297, subd. 4, par. c, cl. ii). The record reveals that complainant had a nervous condition and felt humiliated from getting the "cold shoulder" in trying to find an apartment. She testified that she had gone to see a doctor and told him of her experience at petitioners' premises. She stated that she told the doctor that she had been trying to find a decent place in which to live and the doctor told her not to worry and to try to be contented. She further testified that her condition was aggravated by this experience and she was required to take medication. Medical testimony is not likely to be practically or economically feasible in the majority of these cases. To require such evidence would, in effect, preclude most awards of compensatory damages. Unlike Matter of Moskal, ( supra) where the award was "not supported by any evidence of actual damage" the record here, as demonstrated by what we have just written above, sufficiently supports the Commissioner's discretion in awarding complainant $250 compensatory damages. Accordingly, the ordering provision of paragraph (b) is proper and should be enforced. The provision of paragraph (d) requiring notice of vacancies in all housing accommodations owned or controlled by petitioners is too broad and should be stricken. ( Matter of Moskal v. State Division of Human Rights, supra; Matter of Kindt v. State Comm. of Human Rights, 44 Misc.2d 896, mod. 23 A.D.2d 809, affd. 16 N.Y.2d 1001. ) The part of this directive requiring preference to referred applicants should also be stricken. ( Center Mgt. Co. v. State Division of Human Rights, 27 N.Y.2d 914.) The order as so modified should be enforced in accordance with this memorandum.
In my opinion the amount of damages which petitioners are required to pay should be reduced to $23. Paragraph (b) required petitioners to pay complainant $250 as damages. Damages may be awarded for out of pocket expense ( Matter of State Division of Human Rights, v. Luppino, 35 A.D.2d 107; Ernsteins v. State Division of Human Rights, 35 A.D.2d 599) and for mental pain and suffering provided such suffering is supported by probative evidence. ( Matter of Chance v. Frank's Beauty Salon, 35 A.D.2d 304.) Complainants unsupported testimony that she was humiliated and felt terrible and developed a nervous condition does not justify an award over the $23 out of pocket expense for loss of pay for one day. Otherwise I concur in the memorandum. Witmer, J.: I concur in the decision of the court except insofar as enforcement is directed of that part of the order which awards $250 compensatory damages to complainant, and in that respect I concur in the dissent by Justice Henry. There is no basis in the record for the award of the $250. The figure is simply "taken out of a hat" and could as well be $500, $2,500 or $5,000, depending upon the visceral reaction or caprice of the Commissioner. The statutory authorization for compensatory damages does not permit such an award without proof (see Center Mgt. Co. v. State Division of Human Rights, 27 N.Y.2d 914). Where the Legislature has wished to authorize an award in the nature of a penalty and not one based upon probative evidence of damage, it has done so in a well-planned and explicit manner (see Judiciary Law, §§ 751, 756, 773; Geller v. Flamount Realty Corp., 260 N.Y. 346, 351; Matter of McDonnell v. Frawley, 23 A.D.2d 729; Levine v. 97 Realty Corp., 21 A.D.2d 655). If it is desired that such damages be awarded in this field, they should be authorized by the Legislature under appropriate standards or safeguards.