Moskal v. State, Executive Dept., Division of Human Rights on Complaint of Williams

• Decision Date: 18 February 1971
• Citation: 36 A.D.2d 46,319 N.Y.S.2d 358
• Parties: Application of Pauline MOSKAL and Eugene Husak, Petitioners, v. STATE of New York, EXECUTIVE DEPARTMENT, DIVISION OF HUMAN RIGHTS, on the complaint of Priscilla WILLIAMS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 358

319 N.Y.S.2d 358

36 A.D.2d 46

Application of Pauline MOSKAL and Eugene Husak, Petitioners, v. STATE of New York, EXECUTIVE DEPARTMENT, DIVISION OF HUMAN

RIGHTS, on the complaint of Priscilla WILLIAMS, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Feb. 18, 1971.

[36 A.D.2d 47] John G. Kimball, Syracuse, for appellants.

Commissioner Robert J. Mangum, State Division of Human Rights, New York City, Henry Spitz, Gen. Counsel, State Division of Human

Rights, New York City, for respondents (Herbert Rosenstein and Alan J. Saks, New York City, of counsel)

Mrs. Priscilla Williams, pro se.

Before GOLDMAN, P.J., and MARSH, WITMER, GABRIELLI and HENRY, JJ.

OPINION

PER CURIAM:

Complainant, Priscilla Williams, a Negro, filed a complaint against petitioners herein because of their failure to rent one of their vacant apartments to her. After a hearing ordered by the State Division of Human Rights the Commissioner made an order requiring these petitioners to cease and desist from refusing to sell or rent to any person because of race, creed or national origin and from inquiring of prospective purchasers or tenants concerning their race, creed or national origin. He further ordered these petitioners to take the following affirmative actions, to wit,

1. Pay claimant $300 damages within 30 days of the order,

2. With respect to all of their housing accommodations now Or hereafter owned or controlled by them, that they apply the same standards, terms and conditions regardless of race, creed or national origin of applicants,

3. For a period of two years from said order:

a. That they notify complainant in writing of the next available vacancy in the premises just denied to her, at the stated rental, or offer to her similar other premises, and allow her at least four business days in which to accept the offer,

b. That they notify the State Division of Human Rights of any available housing accommodations now Or hereafter owned or controlled by these petitioners, after giving complainant first opportunity of acceptance, and allow the Division or its designee at least four business days to refer the same to interested applicants, who shall be considered 'without regard to any waiting list of other applicants',

c. That they maintain a list of all applicants for housing accommodations now or hereafter owned or controlled by them, and in case of rejection, the reason therefor, and

d. That they make available to the State Division of Human Rights such documents and information as may be necessary for it to ascertain whether there has been compliance with this order.

The Division duly served copies of said order upon petitioners together with notice of their right under sections 297--a and 298 of the State Human Rights Law (Executive Law) to appeal to the State Human Rights Appeal Board within fifteen days of such service. Petitioners did not appeal to that Board. Instead, they petitioned to this Court for review of the order. In response, the Division has moved to dismiss the petition on the ground that this Court lacks jurisdiction thereof, since petitioners have failed to exhaust their administrative remedy of appeal to the Appeal Board. The Division also cross-petitioned for an order of this court enforcing its order.

Since the amendment of the Human Rights Law in 1968 (Laws of 1968, ch. 958, §§ 7 and 8, enacting sections 297--a and 298 of the Executive Law) creating the Appeal Board, the scheme of the statute has been to require a person aggrieved by an order of the Division to appeal to the Appeal Board. Section 298 thereof provides that a person aggrieved 'by any order of the Board (Appeal Board) may obtain judicial review thereof, and the division may obtain an order of court for its enforcement and for the enforcement of any order of the commissioner which has not been appealed to the board' (Emphasis added). Accordingly, petitioner's application for review by this Court of the Division's order may not be entertained, and the motion of the Division to dismiss it is granted, with respect to its status as a petition (see Matter of State Division of Human Rights v. Merante, 35 A.D.2d 652, 312 N.Y.S.2d 1015; and Ernsteins v. State Division of Human Rights, 35 A.D.2d 599, 313 N.Y.S.2d 856). However, we further hold that said petition may be treated as petitioners' answer in our consideration of the cross-petition (Ernsteins v. State Division of Human Rights, supra; Executive Law, section 298).

With respect to the merits of the order of the Commissioner, petitioners' contention that the order is void for failure of the Division to act precisely within the time periods specified in subsdivision 4, a. and c., of section 297 of the Executive Law, is without merit. Those provisions are directory, not mandatory (Matter of Hempstead Volunteer Fire Department v. State Division of Human Rights, 35 A.D.2d 601, 313 N.Y.S.2d 814; see also Matter of Glen Cove Municipal Civil Service Commission v. Glen Cove NAACP, 34 A.D.2d 956, 312 N.Y.S.2d 400; Rochester Gas & Electric Corporation v. Maltbie, 272 App.Div. 162, 71 N.Y.S.2d 326).

Petitioners' assertion that the order of the Commissioner was founded on insufficient evidence is likewise without merit. The statute (Executive Law, § 298) expressly provides that the findings of fact of the Division 'shall be conclusive if supported by sufficient evidence on the record considered as a whole'. Substantial evidence to support the Division's findings is sufficient and precludes this Court from holding to the contrary (Matter of Kindt v. State Commission for Human Rights, 44 Misc.2d 896, 254 N.Y.S.2d 933, mod. on other grounds, 23 A.D.2d 809, 258 N.Y.S.2d 250, affd. 16 N.Y.2d 1001, 265 N.Y.S.2d 662, 212 N.E.2d 898; and Matter of Holland v. Edwards, 307 N.Y. 38, 119 N.E.2d 581). The finding that petitioners discriminated against complainant herein is amply supported by the record.

The Division is, therefore, entitled to an order of enforcement of its order except in such respects as the order may be found to lack evidential support or to be contrary to law.

The provision awarding $300 damages to the complainant is not supported by any evidence of actual damage sustained by her (see Matter of Chance v. Frank's Beauty Salon, 35 A.D.2d 304, 316 N.Y.S.2d 236). Since the Division is not empowered to make an award as a penalty, this provision must be excised (see Matter of Ernsteins v. State Division of Human Rights, supra, 35 A.D.2d 599, 313...