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

516
TP 11-02146
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.


IN THE MATTER OF CITY OF NIAGARA FALLS,
PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF HUMAN RIGHTS, ON THE
COMPLAINT OF KEVAN H. ARYA, RESPONDENT-PETITIONER,
AND KEVAN H. ARYA, RESPONDENT.


CRAIG H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (CHRISTOPHER M.
MAZUR OF COUNSEL), FOR PETITIONER-RESPONDENT.

CAROLINE J. DOWNEY, BRONX (TONI ANN HOLLIFIELD OF COUNSEL), FOR
RESPONDENT-PETITIONER.


     Proceeding pursuant to Executive Law § 298 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Niagara County [Ralph A.
Boniello, III, J.], entered April 11, 2011) to review a determination
of respondent-petitioner New York State Division of Human Rights. The
determination found that petitioner-respondent had discriminated
against respondent Kevan H. Arya on the basis of his national origin.

     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 $4,000 and as modified the determination is confirmed
without costs and the cross petition is granted to that extent.

     Memorandum: Petitioner-respondent (petitioner) commenced this
proceeding pursuant to Executive Law § 298 seeking to annul the
determination of the Commissioner of respondent-petitioner New York
State Division of Human Rights (SDHR), finding that respondent Kevan
H. Arya (complainant) was discriminated against based on his national
origin. The Commissioner ordered petitioner to pay complainant the
sum of $125, for costs incurred by complainant due to the improper
refusal by petitioner to permit him to take petitioner’s master
electrician’s test, with interest from a specified date to the date on
which such payment is made, plus the sum of $8,000 for compensatory
damages for mental anguish and humiliation, with interest on that part
of the award from the date of the Commissioner’s determination to the
date on which such payment is made. Petitioner then commenced this
proceeding, and SDHR filed a cross petition seeking enforcement of the
Commissioner’s determination.
                                 -2-                           516
                                                         TP 11-02146

     We conclude that the determination that complainant was
discriminated against based on his national origin is supported by
substantial evidence in the record. “Judicial review of [S]DHR’s
determination made after a hearing is limited to consideration of
whether substantial evidence supports the agency determination.
Substantial evidence ‘means such relevant proof as a reasonable mind
may accept as adequate to support a conclusion or ultimate fact’ ”
(Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human
Rights, 100 NY2d 326, 331, quoting 300 Gramatan Ave. Assoc. v State
Div. of Human Rights, 45 NY2d 176, 180). Furthermore, this Court “may
not weigh the evidence or reject the Commissioner’s determination
‘where the evidence is conflicting and room for choice exists’ ”
(Matter of Manhattan & Bronx Surface Tr. Operating Auth. v New York
State Exec. Dept., 220 AD2d 668, 668; see Matter of New York State Tug
Hill Commn. v New York State Div. of Human Rights, 52 AD3d 1169,
1170). Here, there is evidence supporting that part of the
determination of the Commissioner that petitioner’s employee failed to
respond in a timely manner to a request made by complainant for an
application to take the master electrician’s test, and indeed did not
respond for a two-month period lasting until after the yearly deadline
for that test had passed, and there is evidence supporting that part
of the determination that such failure was based upon a discriminatory
motive. We thus confirm those parts of the determination.

     Nevertheless, we agree with petitioner that the award of
compensatory damages for mental anguish and humiliation in the amount
of $8,000 “is not supported by the evidence. In reviewing such an
award, we must ‘determine[, inter alia,] whether . . . the award was
supported by evidence before [SDHR], and how it compared with other
awards for similar injuries’ ” (Matter of Anagnostakos v New York
State Div. of Human Rights, 46 AD3d 992, 994, quoting Matter of New
York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 219).
Here, the Commissioner’s conclusion that complainant experienced
mental anguish and humiliation is based upon the finding of the
Administrative Law Judge that complainant “appeared frustrated and
angry at the March 2009 public hearing, 6 months after [petitioner]’s
September 2008 denial” of his application to take the master
electrician’s test. Absent any further evidence of mental anguish and
humiliation, and absent testimony or evidence concerning the depth
thereof experienced by complainant, we conclude that the maximum
amount that may be awarded for mental anguish and humiliation is
$4,000. We therefore modify the determination accordingly, thus
granting the petition in part and granting the cross petition except
insofar as the determination is modified with respect to such damages.




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
