Opinion
April 14, 1986
Order confirmed, proceeding dismissed and cross petition for enforcement denied without prejudice to renewal in the Supreme Court (see, Matter of Salvatore v. New York State Div. of Human Rights, 118 A.D.2d 715), with costs to the Commissioner of the New York State Division of Human Rights, payable by the petitioner, to be taxed by the County Clerk, Westchester County, under CPLR 8203 and 8301.
We reject the petitioner's contention that the Commissioner's findings were unsupported by substantial evidence. The testimony of both the complainant and a rabbi established that the complainant is a Sabbath observer, and that he had given his employer advance notice that he did not wish to work on the Sabbath and on Jewish holy days. In light of this testimony, we conclude that the Commissioner's findings were "supported by sufficient evidence on the record considered as a whole" and we decline to disturb them (Executive Law § 298; see, 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176; Matter of Board of Educ. v. McCall, 108 A.D.2d 855).
Moreover, we discern no error in the Commissioner's conclusion that the petitioner failed to sustain its burden of proof regarding the defense of undue economic hardship (see, Executive Law § 296 [c]). The evidence adduced by the petitioner at the hearing was insufficient to establish either that it attempted to accommodate the complainant's religious beliefs or that such accommodation would work an undue economic hardship upon it (see, Matter of Genesee Hosp. v. State Div. of Human Rights, 50 N.Y.2d 917, revg 68 A.D.2d 692, 701-704, on dissenting opn of Simons, J.P., at App. Div.; Matter of Schweizer Aircraft Corp. v. State Div. of Human Rights, 48 N.Y.2d 294; State Div. of Human Rights v. Carnation Co., 86 A.D.2d 977, lv denied 57 N.Y.2d 607, cert denied 459 U.S. 1206).
Furthermore, the Commissioner's award for mental anguish is supported by the evidence (see, Batavia Lodge No. 196 v. New York State Div. of Human Rights, 35 N.Y.2d 143; Matter of Board of Educ. v. McCall, supra; Catalina Beach Club v. State Div. of Human Rights, 95 A.D.2d 766; see generally, Cullen v. Nassau County Civ. Serv. Commn., 53 N.Y.2d 492). We have considered the petitioner's remaining contentions and find them to be without merit. Weinstein, J.P., Rubin, Eiber and Spatt, JJ., concur.