Cahill v. Rosa
| Decision Date | 16 October 1995 |
| Citation | 632 N.Y.S.2d 614,220 A.D.2d 585 |
| Parties | , 7 NDLR P 179 In the Matter of Dennis W. CAHILL, etc., Petitioner, v. Margarita ROSA, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Barry V. Pittman, Bay Shore, for petitioner.
Lawrence Kunin, New York City (Michael K. Swirsky, of counsel), for respondent.
Before O'BRIEN, J.P., and COPERTINO, SANTUCCI and JOY, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to Executive Law § 298 to review a determination of the New York State Division of Human Rights, dated March 30, 1994, which, after a hearing, inter alia, found that the petitioner, a dentist, had denied the complainant treatment because he perceived the complainant to be at risk for HIV infection and awarded the complainant $10,000 in compensatory damages. Cross petition by the respondent to confirm the determination.
ORDERED that the petitioner is awarded one bill of costs.
The complainant alleged to the New York State Division of Human Rights (hereinafter the SDHR), that the petitioner, a dentist, had denied him treatment because the petitioner perceived him to have AIDS.
After the complainant, who tested negative for the HIV virus, filed a complaint, the SDHR held a hearing to determine whether the petitioner did, in fact, discriminate against the complainant in violation of Executive Law § 296(2)(a). The Administrative Law Judge who heard the case and whose findings were adopted by the Commissioner determined that certain acts of the petitioner's employee constituted a refusal to treat the complainant based on his status as a person who was perceived to be at risk for the HIV virus.
Under Executive Law § 296(2)(a), it is an unlawful discriminatory practice for an owner of any "place of public accommodation" to withhold from or deny to any person because of disability any of the accommodations, advantages, facilities or privileges thereof. No issue has been raised in this proceeding with respect to whether an HIV-infected person or one so perceived, constitutes a person with a disability. The dispositive issue in this case is whether the petitioner's dental practice was a "place of public accommodation", as defined in the Executive Law § 292(9), when the alleged discrimination occurred.
The State Commissioner contends that the phrase "wholesale and retail stores and establishments dealing with goods or services of any kind, dispensaries, clinics, [and] hospitals", which is set forth in Executive Law § 292(9) and is part of an extensive list meant to illustrate what constitutes a "place of public accommodation", requires a finding that a dental office is a "place of public...
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