                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 25, 2016                    520714
________________________________

In the Matter of NEW YORK
   STATE DIVISION OF HUMAN
   RIGHTS et al.,
                    Petitioners,
      v                                      MEMORANDUM AND JUDGMENT

DAVID MIRANDA et al.,
                    Respondents.
________________________________


Calendar Date:    January 12, 2016

Before:    Peters, P.J., McCarthy, Rose and Lynch, JJ.

                              __________


      Caroline J. Downey, New York State Division of Human
Rights, New York City (Michael K. Swirsky of counsel), for New
York State Division of Human Rights, petitioner.

      Law Office of Christopher J. Watt, Saratoga Springs
(Christopher J. Watt of counsel), for Pamela Burns and another,
petitiones.

                              __________


Rose, J.

      Proceeding pursuant to Executive Law § 298 (transferred to
this Court by order of the Supreme Court, entered in Saratoga
County) to enforce an order of the Commissioner of Human Rights,
among other things, awarding damages to petitioners Pamela Burns
and Jane M. Anderson.

      Petitioners Pamela Burns and Jane M. Anderson (hereinafter
collectively referred to as petitioners) were formerly employed
as waitresses by respondent Nonnopapa Enterprises, Inc., doing
business as The Big Apple Restaurant (hereinafter the
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restaurant). Petitioners filed complaints with petitioner State
Division of Human Rights (hereinafter SDHR) charging respondents
with, among other things, sex-based employment discrimination in
violation of the Human Rights Law (see Executive Law § 296 [1]).
After a hearing, an Administrative Law Judge (hereinafter ALJ)
found that petitioners were exposed to a hostile work environment
and recommended that all respondents be held liable to
petitioners for $25,000 each in damages for their mental pain and
suffering. The Commissioner of Human Rights then adopted the
ALJ's recommendations and, ultimately, SDHR and petitioners
commenced this proceeding pursuant to Executive Law § 298 seeking
to enforce the Commissioner's order.

      Respondents did not seek judicial review of the
Commissioner's order and have not appeared in this proceeding.
Nevertheless, we are "required to review the record to determine
whether the underlying finding is supported by substantial
evidence" (Matter of New York State Div. of Human Rights v Young
Legends, LLC, 90 AD3d 1265, 1266 [2011] [internal quotation marks
and citation omitted]; see Matter of Arcuri v Kirkland, 113 AD3d
912, 913-914 [2014]). Here, both petitioners testified that they
were sexually harassed on a daily basis by respondent Dominick
Paduano, the restaurant's head chef. According to petitioners,
Paduano's harassment consisted of repeated lewd gestures,
demeaning comments and graphic descriptions of his oft-stated
desire to engage in various sexual acts with petitioners. Burns
testified that Paduano's comments made her "so upset inside
[that] it was hard to even continue to go back out and wait on a
customer." Similarly, Anderson testified that Paduano's conduct
caused her to feel extreme anxiety, stress, fear and depression.
Although petitioners made numerous complaints to respondent David
Miranda, a co-owner of the restaurant who was often present in
the kitchen and witnessed Paduano's conduct, Miranda refused to
take any action to remedy the situation.

      We find ample support in the record for the Commissioner's
determination that petitioners were exposed to a hostile work
environment as a result of sexual harassment (see Matter of
Rensselaer County Sheriff's Dept. v New York State Div. of Human
Rights, 131 AD3d 777, 778-780 [2015]). There is also support for
the Commissioner's imposition of personal liability against
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Miranda for condoning Paduano's harassing conduct (see Tidball v
Schenectady City Sch. Dist., 122 AD3d 1131, 1132 [2014]; see also
Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66
NY2d 684, 687 [1985]). Further, petitioners are "entitled to
enforcement of the Commissioner's order against [the restaurant]
. . . through [Miranda's] ownership interest" (Matter of New York
State Div. of Human Rights v Young Legends, LLC, 90 AD3d at
1267). Inasmuch as the restaurant and Miranda are independently
liable for violating Executive Law § 296 (1), their participation
in the discriminatory conduct serves as a predicate for the
imposition of personal liability against Paduano pursuant to
Executive Law § 296 (6) for aiding and abetting his employer's
violations (see Murphy v ERA United Realty, 251 AD2d 469, 471-473
[1998]; compare Matter of Medical Express Ambulance Corp. v
Kirkland, 79 AD3d 886, 888 [2010], lv denied 17 NY3d 716 [2011];
Strauss v New York State Dept. of Educ., 26 AD3d 67, 73 [2005]).

      We reach a different conclusion as to the personal
liability of respondent Guy Benacquista, the other co-owner of
the restaurant. While the record suggests that he was present at
the restaurant during the relevant time period, there is no
evidence that he ever observed Paduano's harassing conduct.
Furthermore, Anderson gave no testimony that she ever complained
directly to Benacquista, and Burns testified that she did not
bring her concerns to him until her last day of work. Burns
further stated that Miranda specifically told her that he would
not approach Benacquista with her concerns. "Thus, SDHR failed
to satisfy its 'affirmative burden' to prove that [Benacquista]
condoned the discriminatory conduct" (Matter of New York State
Div. of Human Rights v Young Legends, LLC, 90 AD3d at 1269,
quoting Matter of State Univ. of N.Y. at Albany v State Human
Rights Appeal Bd., 81 AD2d 688, 689 [1981], affd 55 NY2d 896
[1982]).

      Finally, we find that the Commissioner's award of $25,000
each in damages to petitioners for their mental pain and
suffering was "reasonably related to the wrongdoing, supported by
the record and comparable to other awards for similar injuries"
(Matter of New York State Dept. of Correctional Servs. v New York
State Div. of Human Rights, 53 AD3d 823, 826 [2008]; see Matter
of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d
                              -4-                  520714

207, 219 [1991]). Burns testified that, prior to working at the
restaurant, she was a victim of rape, and that Paduano's conduct
made her feel as though she was "letting [her]self be victimized
again." Her resulting distress required her to reach out to her
rape crisis counselor. Anderson testified that, as a result of
the harassment, she began seeing a psychologist and was
prescribed anti-anxiety medication, which she was still taking at
the time of the hearing. In light of this uncontradicted
testimony, and the fact that the award is commensurate with
damages awards granted under similar circumstances (see e.g.
Matter of West Taghkanic Diner II, Inc. v New York State Div. of
Human Rights, 105 AD3d 1106, 1107-1109 [2013]; Matter of New York
State Div. of Human Rights v Young Legends, LLC, 90 AD3d at
1270), we decline to disturb it.

     Peters, P.J., McCarthy and Lynch, JJ., concur.



      ADJUDGED that the order of the Commissioner of Human Rights
is modified, without costs, by annulling so much thereof as found
respondent Guy Benacquista personally liable for discriminatory
conduct toward petitioners, and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
