        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

976
TP 14-00043
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.


IN THE MATTER OF COUNTY OF ERIE, NAMED IN THE
UNDERLYING MATTER AS ERIE COUNTY DEPARTMENT OF
SOCIAL SERVICES, PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS,
RESPONDENT-PETITIONER,
AND MARGARET PASCALE, RESPONDENT.


MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (MICHELLE M. PARKER OF
COUNSEL), FOR PETITIONER-RESPONDENT.

CAROL J. DOWNEY, GENERAL COUNSEL, BRONX (MICHAEL K. SWIRSKY OF
COUNSEL), FOR RESPONDENT-PETITIONER.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Henry J. Nowak,
Jr., J.], entered January 6, 2014) to review a determination of
respondent-petitioner. The determination, among other things, found
that petitioner-respondent engaged in unlawful discrimination.

     It is hereby ORDERED that the determination so appealed from is
unanimously modified on the law and the petition is granted in part by
reducing the award of compensatory damages for mental anguish and
humiliation to $2,500 and as modified the determination is confirmed
without costs, and the cross petition is granted in part and
petitioner-respondent is directed to pay respondent the sum of $2,500
with interest at the rate of 9% per annum, commencing March 26, 2013,
and to pay the State of New York a civil penalty in the amount of
$5,000 at the rate of 9% per annum, commencing March 26, 2013 and
petitioner-respondent is directed to maintain a desktop printer at the
work station of respondent.

     Memorandum: Petitioner-respondent (petitioner) commenced this
proceeding pursuant to Executive Law § 298 seeking to annul the
determination of respondent-petitioner, New York State Division of
Human Rights (Division), that it engaged in unlawful discrimination
because it failed to provide a reasonable accommodation to respondent,
Margaret Pascale. The Division awarded respondent that accommodation
and damages and imposed a civil penalty of $5,000. It is undisputed
that respondent’s left leg was amputated below the knee as the result
of complications from diabetes. It also is undisputed that petitioner
                                 -2-                           976
                                                         TP 14-00043

implemented a county-wide program for substantially reducing the
number of desktop printers and instead, utilizing all-in-one printer
systems to be shared by several employees. Although the common-use
printer was in proximity to respondent’s work station, she requested
that she be provided with a desktop printer because she used the
printer “constantly” and, with her prosthetic and “bad knees,” “it is
very tiring” and the use of the common printer “may cause added
soreness to [her] situation.” Respondent provided petitioner with its
required medical certification from her physician, which stated that
respondent’s disability was a “diabetes caused amputation [prosthetic
leg].” The form listed symptoms of the disability as, inter alia,
“weak knees and chronic back pain,” as well as several limitations
that do not directly impact respondent’s request. The form did not,
however, specify a recommended accommodation. Petitioner determined
that the accommodation was not necessary and denied respondent’s
request, following petitioner’s review of respondent’s work space and
its proximity to the common printer, along with information obtained
from respondent’s medical provider.

     Respondent filed a complaint with the Division, which determined
after a hearing that respondent met her burden of establishing a prima
facie case of discrimination based upon the denial of a reasonable
accommodation, i.e., that she is a person with a disability, that
petitioner had notice of it, that she could perform the essential
functions of her job with a reasonable accommodation, and that
petitioner refused to make such accommodation (see Matter of Abram v
New York State Div. of Human Rights, 71 AD3d 1471, 1473). We reject
petitioner’s contention that the Administrative Law Judge (ALJ) erred
in considering a letter from respondent’s physician inasmuch as the
record reflects that petitioner stipulated to the admission of that
letter in evidence. Although we agree with petitioner that the ALJ
erred in determining that it was required to obtain additional medical
evidence when it determined that the medical support provided by
respondent was insufficient (see Pimentel v Citibank, N.A., 29 AD3d
141, 148, lv denied 7 NY3d 707), we nevertheless conclude that the
Division’s determination, that the failure to provide a desktop
printer as a reasonable accommodation to respondent’s disability
constitutes discrimination, is supported by substantial evidence (see
generally Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499;
Matter of Noe v Kirkland, 101 AD3d 1756, 1757). Here, although “ ‘the
evidence is conflicting and room for choice exists[,]’ ” there is a
rational basis for the determination and thus “ ‘the judicial function
is exhausted’ ” (Noe, 101 AD3d at 1757).

     We nevertheless agree with petitioner that the award of $10,000
in compensatory damages is not “ ‘supported by the evidence’ ” and
does not compare with other awards for similar injuries (Matter of
City of Niagara Falls v New York State Div. of Human Rights, 94 AD3d
1442, 1444; see Matter of New York City Tr. Auth. v State Div. of
Human Rights, 78 NY2d 207, 216). Respondent testified that she was
“surprised,” “angry” and “depressed” by the determination to refuse to
restore a desktop printer to her work station and that she was
required to utilize prescription pain medication approximately once or
twice per week since using the common printer. We conclude that the
                                 -3-                           976
                                                         TP 14-00043

award should be reduced to $2,500 (see generally Matter of KT’s Junc.,
Inc. v New York State Div. of Human Rights, 74 AD3d 1910, 1911), and
we therefore modify the determination accordingly. We reject
petitioner’s further contention that the civil penalty of $5,000 is
excessive. “[J]udicial review of an administrative penalty is limited
to whether the measure or mode of penalty . . . constitutes an abuse
of discretion as a matter of law . . . [A] penalty must be upheld
unless it is ‘so disproportionate to the offense as to be shocking to
one’s sense of fairness,’ thus constituting an abuse of discretion as
a matter of law” (Matter of Kelly v Safir, 96 NY2d 32, 38, rearg
denied 96 NY2d 854), and here, the penalty is not an abuse of
discretion as a matter of law.




Entered:   October 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
