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

1390
TP 12-01112
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF PAUL J. NOE,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

GALEN D. KIRKLAND, COMMISSIONER, NEW
YORK STATE DIVISION OF HUMAN RIGHTS,
NEW YORK STATE DIVISION OF HUMAN RIGHTS,
RESPONDENTS-PETITIONERS,
AND LEON H. MARTIN, III, RESPONDENT.


HARRIS BEACH PLLC, BUFFALO (RICHARD T. SULLIVAN OF COUNSEL), FOR
PETITIONER-RESPONDENT.

CAROLINE J. DOWNEY, BRONX (TONI ANN HOLLIFIELD OF COUNSEL), FOR
RESPONDENTS-PETITIONERS.


     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, Erie County [Diane Y.
Devlin, J.], entered June 14, 2012) to review a determination of
respondents-petitioners. The determination found that petitioner-
respondent had engaged in an unlawful discriminatory practice.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs, the petition is dismissed, the cross petition
is granted, and petitioner-respondent is directed to pay respondent
Leon H. Martin, III, the sum of $10,000 as damages for mental anguish
and humiliation with interest at the rate of 9% per annum commencing
March 7, 2012, and to pay the Comptroller of the State of New York the
sum of $20,000 for a civil fine and penalty, with interest at the rate
of 9% per annum commencing March 7, 2012.

     Memorandum: Petitioner-respondent (petitioner) commenced this
proceeding pursuant to Executive Law § 298 to challenge the
determination of respondents-petitioners (respondents) that found,
after a hearing, that he had unlawfully discriminated against
respondent Leon H. Martin, III, (complainant) based on race and that
ordered him to pay a civil fine and compensatory damages. Respondents
cross-petitioned to enforce the determination. We now confirm the
determination, dismiss the petition, and grant the cross petition.

     Petitioner first contends that the determination is not supported
by substantial evidence. “[T]he scope of judicial review under the
                                 -2-                          1390
                                                         TP 12-01112

Human Rights Law is extremely narrow and is confined to the
consideration of whether the Division’s determination is supported by
substantial evidence in the record. Courts may not weigh the evidence
or reject the Division’s determination where the evidence is
conflicting and room for choice exists. Thus, when a rational basis
for the conclusion adopted by the Commissioner is found, the judicial
function is exhausted” (Matter of State Div. of Human Rights
[Granelle], 70 NY2d 100, 106). Here, the record establishes that
petitioner, an experienced landlord, refused to lease an available
commercial space to complainant only after meeting him in person and
voicing concerns about the race of his existing residential tenants as
compared to that of complainant. The record also establishes that
petitioner’s purported concerns about complainant’s intended use of
the space were merely a pretext for racial discrimination, given that
he could have easily tailored a lease to address any such concerns.
We therefore conclude that the determination is supported by
substantial evidence (see Matter of County of Onondaga v Mayock, 78
AD3d 1632, 1633; Matter of Mohawk Val. Orthopedics, LLP v Carcone, 66
AD3d 1350, 1350-1351).

     Contrary to petitioner’s second contention, an award of
compensatory damages for mental anguish and humiliation is supported
by the evidence adduced at the administrative hearing, which reveals
that petitioner’s conduct reminded complainant of the segregation that
he previously experienced in Alabama and caused him to resort to using
his spouse and her business as a front through which to lease
commercial space (see Mayock, 78 AD3d at 1633-1634; Matter of New York
State Off. of Mental Health v New York State Div. of Human Rights, 75
AD3d 1023, 1025). We note that petitioner does not challenge the
amount awarded in compensatory damages.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
