Opinion
February 19, 1968
Irving Honigsberg for petitioners.
J. Lee Rankin, Corporation Counsel ( E.L. Johnson of counsel), for respondent.
This is a special proceeding to review an order of the Commission on Human Rights pursuant to section B1-9.0 of the Administrative Code of the City of New York. A cross petition seeks enforcement of respondent's order. That section states that: "The findings of the commission as to the facts shall be conclusive if supported by sufficient evidence on the record considered as a whole."
The decision and order, made and entered on November 10, 1967 and adopted by the commission on the same date, were based upon a hearing concluded on April 13, 1967.
It appears to me that the requirement as to expeditious disposal after a hearing or review by a court should be equally binding upon respondent. It is entirely inequitable and destructive of the rights of parties to delay a decision for a period of seven months. The importance of prompt disposal of a special proceeding in this court is stated as follows: "All such proceedings shall be heard and determined by the court and by any appellate court as expeditiously as possible and with lawful precedence over other matters."
The necessity of expeditious disposal is evidenced by the provision of section B1-8.0 (subd. 2, par. c) which grants "payment of compensatory damages to the person aggrieved by such practice" without likewise granting to the landlord compensatory damages for losses occasioned by delayed action of the respondent in the event that an order is entered in favor of the landlord.
I refer to that part of the decision which reads as follows: "pay to complainant Charles Gray the sum of $100 being compensation for the humiliation, outrage and mental anguish suffered by him as a direct result of respondents' unlawful discrimination."
It is my opinion that the respondent holds no power to grant such damages. The clear intention of the Legislature was to permit an award of damages to the extent of actual money loss occasioned to the complainant and not for other subjective injuries. Basically an action for compensatory damages constitutes a tort action which should be brought in a court of law triable by a jury, unless a jury is waived.
Authority for the enactment of chapter 1 of the Administrative Code creating the City Commission on Human Rights was granted by article 12-D of the General Municipal Law where, in section 239-o, it was provided: "The governing board of any county, city, village or town may by resolution create a commission on human rights." Nowhere in section 239-q, entitled "General duties" was any commission given the right to award damages, nor does section 239-r entitled "General obligations" extend this power to the respondent.
Pursuant to the authority of section 293 Exec. of the Executive Law, entitled "State commission for human rights" a similar commission was created in the Executive Department. The general powers and duties prescribed in section 295 authorize the holding of hearings and permit an award of compensatory damages. Obviously the city commission was modelled on this section. Section 297, prescribing the procedure to be followed upon the filing of a complaint and the investigations in connection therewith, provides in paragraph c of subdivision 2 that the commission state its findings of fact and serve an order enjoining unlawful discrimination and also for the payment of compensatory damages to the person aggrieved by such practice. The very nature of a provision awarding damages only to a complainant and not to a landlord is discriminatory. Landlords against whom false complaints are filed can be damaged monetarily to even a greater extent than an individual complainant. The discriminatory nature of such provision invalidates the provision for damages.
In this case there was no proof on the issue of damages submitted to the hearing commissioner. The complainant is a 25-year-old single male who lived with his single brother in a 3 1/2 room apartment for which his brother paid the rent. Although he claimed at the hearing that he was a student and that it was upon that basis that the Welfare Department undertook to pay his rent for this apartment, the nature of the studies being pursued by this 25-year-old student is not set forth nor the school which he attends nor the courses which he has taken. There is not the slightest degree of proof in this regard that he was in anywise humiliated, outraged and anguished by the result of the landlady's action. Consequently this court strikes from the order of the respondent the provisions for damages.
With respect to the merits of the order finding that the landlady and her "renting agent" were guilty of unlawful discrimination, this court finds that the record amply sustains the findings against the landlady but not against the "renting agent." The latter was an aged woman who was a tenant in the building and who performed some services for the landlady who is also an aged person. There is no evidence in the record to indicate that the landlady had any direct contact with any of the parties herein. The landlady's husband is alleged to be a 90-year-old practicing attorney. Neither the landlady nor the "renting agent" was called as a witness to refute any of the testimony given by the several persons on behalf of the complainant. The "renting agent" died on November 19, 1967.
The undisputed testimony of members of the respondent sufficiently established that the superintendent of the building had exhibited the apartment to the complainant who had obtained a list of available apartments from Operation Open City, an organization working in conjunction with the respondent. When shown one apartment he was told that another apartment was also available. There were no other Negroes living in this apartment house. When the superintendent took him to the "renting agent" she, ostensibly acting under orders of the landlady, told him that there were no available apartments and that the advertisements upon which the respondent based its listing were erroneous. The following day an inspector for the commission, a white woman, after informing the "renting agent" that she desired to rent the apartment for her brother, who was on welfare, was permitted to give a deposit for the apartment and received a receipt therefor. On the next day she returned to the apartment with the complainant and several other persons connected with the respondent. Confusion existed. Nevertheless the "renting agent" accepted from the complainant checks issued by the Welfare Department in the total sum of $139.70 for the payment of one month's rent and one month's security and gave him a lease, unsigned as yet by the landlady, and also gave him the keys to an apartment just vacated by a former tenant. When attempting to enter the apartment on the following day, the complainant found that the lock had been changed. Upon further conversation with the "renting agent" she claimed firstly, that the landlady refused to rent the apartment to a welfare recipient, and further that there were no apartments in fact available. Thereupon the present proceedings were commenced.
The only testimony offered on behalf of the landlady and "renting agent" was that of an attorney who had conversations with them. It was his contention that the landlady had the right to refuse to rent the apartment to a recipient of welfare because of unhappy experience with a welfare tenant which had resulted in the vacancy then existing.
That argument might have been tenable except for the uncontradicted testimony in the record that there were other welfare recipients as tenants with whom the landlady had no difficulties and further, the fact that the offer to rent had been made to the first investigator who had advised the "renting agent" that the apartment was for her brother who was a recipient of welfare.
Consequently the court must find that there was substantial evidence warranting the findings of the commission concerning discrimination.
A further provision of the order required the landlady to make available for rental to the complainant the same apartment or another apartment of comparable size and rental. Three weeks after the complaint was filed, the landlady rented the apartment to another, a white person.
I hold that that portion of the order requiring the offer to rent apartment 4F is stricken. In Matter of Commission on Human Rights v. City Builders ( 53 Misc.2d 1, 2) it was said:
"While the proceeding was pending before the petitioner, the apartment was rented to another tenant, who presently occupies it. This tenant was not initially a party to the proceeding. When this matter first appeared in court, the Justice then presiding ordered that he too be joined in the application. Such was done, and he has answered. On the papers submitted it is not shown that he had any knowledge of the proceeding before the petitioner, or that he in any way conspired with the owner.
"Accordingly, the court is of the opinion that to enforce the first part of the order would be harsh and inequitable as to the present tenant, who seems to be an innocent party." For the same reason I direct that that provision be stricken.
With respect to the remaining injunction contained in paragraph 2, concerning the offer of another apartment comparable in size and amount of rent to apartment 4F, I direct that the provision be added that the complainant be required to exercise his right of rental within five days after notice is sent to him by registered mail that such apartment is available. It would be inequitable to permit an unlimited time to elapse before the complainant makes up his mind whether or not to take the offered apartment.
In all other respects the order is affirmed.
Referring again to the findings concerning the award of compensatory damages, I am of the opinion that fairness requires equal protection not only of the one who complains but also of a landlord against whom a false accusation is filed. Obviously the practice of withholding decisions for the period of seven months, as was done in this case, is in conflict with subdivision 2 of section B1-8.0 of the Administrative Code which restricts the posting of a notice on the door of the housing accommodations to a period of ten days. It is also in conflict with that portion which reads in part: "If the commission, after such investigation, shall determine that there is probable cause to credit the allegations of the complaint, or if the chairman after such review, shall determine that there is such probable cause, the commission shall immediately endeavor to eliminate such unlawful discriminatory practice" (italics added). And then follows prescribed procedure.
Certainly the harm done to a landlord, against whom unfounded complaints are filed, will be substantially greater than that to the complainant. Some legislative provision or amendment should be made for the protection of such landlord.
Accordingly the order of the commission is modified on the petition and cross petition to the extent that paragraph 1 shall remain intact, paragraph 2 shall be changed as indicated above, and paragraph 3 shall be deleted.