State Div. of Human Rights on Complaint of Geraci v. New York State Dept. of Correctional Services, 1

Decision Date08 November 1982
Docket NumberNo. 1,No. 2,1,2
Citation90 A.D.2d 51,456 N.Y.S.2d 63
PartiesSTATE DIVISION OF HUMAN RIGHTS ON the Complaint of Santo GERACI, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES et al., Respondents. (Matter) STATE DIVISION OF HUMAN RIGHTS on the complaint of Mitchell GREEBEL, Petitioner, v. NEW YORK STATE PARKS AND RECREATION COMMISSION, Respondent. (Matter)
CourtNew York Supreme Court — Appellate Division

Ann Thacher Anderson, New York City (Harry Starr, Elaine Berger, New York City, of counsel), for petitioners.

Ramon J. Rodriguez, Albany (Michael Kernan, Albany, of counsel), for respondent New York State Dept. of Correctional Services in Matter No. 1.

Calvin M. Berger, Albany (John K. Dalton, Albany, of counsel), for respondent New York State Dept. of Audit and Control in Matter No. 1.

Calvin M. Berger, Albany (John K. Dalton, Albany, of counsel), for N.Y.S. Dept. of Audit and Control and Harvey Randall, Albany, for N.Y.S. Dept. of Civil Service in Matter No. 2.

Before DAMIANI, J.P., and TITONE, LAZER and GIBBONS, JJ.

PER CURIAM.

The core issue pressed upon this court by all the parties 1 for decision is whether a money award against the State of New York can constitutionally be made by the Commissioner of Human Rights and enforced by the Appellate Division of the Supreme Court rather than by the Court of Claims. We answer in the affirmative.

In the first matter the State Department of Correctional Services was found by the commissioner to have unlawfully discriminated against Santo Geraci in dismissing him from his position as a correction officer because his age exceeded the maximum fixed by the department. The commissioner's order directed the department to pay a sum of money purportedly representing lost wages with interest, less standard payroll deductions, in addition to the sum of $250 for mental anguish. The Human Rights Appeal Board dismissed as untimely the department's appeal of the order and after numerous demands for payment, a voucher for the back pay amount only was prepared and then certified by the Department of Civil Service, which agreed that complainant had been illegally ousted from his office. After a check in the amount of $1,839.81 for back pay was sent to complainant, the Attorney-General ruled in an opinion requested by the State Comptroller that under the Human Rights Law the commissioner was vested with sufficient general jurisdiction over the State to award "such compensatory damages as are appropriate to compensate for the wrong suffered" (Executive Law, § 297) and to seek enforcement of such award in the Appellate Division (Executive Law, § 298) without relegation to suit in the Court of Claims. This opinion, dated February 28, 1980, reasoned that the State had impliedly waived sovereign immunity from suit in the same way it had expressly waived such immunity in section 77 of the Civil Service Law, which authorizes officers or employees removed in violation of that chapter to recover lost earnings.

The State Department of Correctional Services answered the instant application for enforcement by arguing that it was untimely brought under section 298 of the Executive Law and that, on the merits, the award was fatally defective in being predicated upon a record lacking substantial evidence and an erroneous ruling of substantive law. While conceding that there is "no question" that the State is "subject to" the Human Rights Law, the State Comptroller argued that the commissioner's jurisdiction did not extend to entertaining money claims against the State under section 297 of the Executive Law because the Constitution (art. VI, § 9) vests "exclusive" jurisdiction over such claims in the Court of Claims. Further, he argued that enforcement was unavailable in this court because he had not been joined as a party to the original proceeding. Also, there was neither a legal basis authorizing, nor a legislative appropriation covering, interest or damages for mental anguish.

The second matter is before this court in a different posture. The commissioner obtained on complainant Mitchell Greebel's behalf an order on default from this court dated December 1, 1980 to enforce an unappealed award against the State Parks and Recreation Commission covering back pay (less deductions) in the amount of $1,396.80, with interest, plus $500 for mental anguish. The State Comptroller seeks leave to intervene and set aside this order because the commissioner has threatened to initiate contempt proceedings for noncompliance. The comptroller raises the identical constitutional arguments set out in the Geraci matter. Additionally, he points out that in Greebel's case the award for lost earnings was predicated on an assumption that but for the State's wrongful act of discrimination in refusing to hire Greebel, a Sabbath observer, he would have been appointed to the civil service position; however, argues the comptroller, the commissioner's acting on this assumption in fixing the amount of damages unlawfully trenched upon the constitutional mandate of the Department of Civil Service, which must pass upon all such appointments, including noncompetitive summer positions such as the one sought by complainant. The latter department seeks leave to intervene with respect to that portion of the award characterized as lost earnings, and points out that the comptroller could not lawfully authorize payment from personal service appropriations absent its certification of the payroll. As already noted, the commissioner has consented to the comptroller's intervention though "seriously" questioning the need for intervention by the Civil Service Department.

Taking each matter in turn, we conclude initially that the commissioner's application for enforcement on behalf of complainant Geraci was timely. The last sentence of section 298 of the Executive Law requires that a "proceeding under this section when instituted by any complainan respondent or other person aggrieved" be commenced within 30 days of service of the commissioner's order. But under the language of this rather lengthy and convoluted section it is clear that this proceeding is one for judicial review and not judicial enforcement because the first sentence of the section authorizes only the commissioner to bring an enforcement proceeding.

Insofar as the issue of substantial evidence is belatedly raised by the Department of Correctional Services, which failed to take an administrative appeal or to seek judicial review, we note preliminarily that under Matter of State Div. of Human Rights v. Bystricky, 30 N.Y.2d 322, 333 N.Y.S.2d 398, 284 N.E.2d 560, the issue is not waived and must be resolved by this court on an enforcement application using the same degree of scrutiny that would have been exercised on an application for judicial review. (See State Div. of Human Rights v. Sears, Roebuck & Co., 71 A.D.2d 885, 419 N.Y.S.2d 642; but, see, Matter of State Div. of Human Rights v. Merante, 35 A.D.2d 652, 312 N.Y.S.2d 1015; Ernsteins v. State Div. of Human Rights, 35 A.D.2d 599, 313 N.Y.S.2d 856, app. dsmd. 28 N.Y.2d 802, 321 N.Y.S.2d 907, 270 N.E.2d 725; Matter of State Div. of Human Rights v. Union Carbide Corp., 34 A.D.2d 636, 310 N.Y.S.2d 396.) The answer to the administrative complaint filed by Geraci admitted the facts pertinent to the reason for his dismissal, and merely pleaded in bar of recovery legal justification for fixing a maximum age of 37 as approved by the State Civil Service Commission. The commissioner, however, concluded that the age limit was not "reasonable" under section 54 of the Civil Service Law. Upon remission by the Human Rights Appeal Board for a redetermination of damages, the commissioner took evidence with respect to mental anguish. The complainant testified that his age at the time of his dismissal (45) had been known to his superiors, that he had resigned from a private sector position to rejoin the civil service at their urging after having been laid off from his original civil service position, and that he was the sole support of his wife and six children. We find that this testimony constituted substantial evidence supporting the award of compensation for mental anguish under the test set forth in Batavia Lodge No. 196, Loyal Order of Moose v. New York State Div. of Human Rights, 35 N.Y.2d 143, 147, 359 N.Y.S.2d 25, 316 N.E.2d 318 and Italia v. New York State Executive Dept., Div. of Human Rights, 36 A.D.2d 1009, 321 N.Y.S.2d 422.

Presumably, however, the issue of whether the commissioner's order was "in conformity with * * * the laws of the state" (Executive Law, § 297-a, subd. 7, par. a) is as much before this court in this enforcement proceeding as is the issue of substantial evidence (Executive Law, § 297-a, subd. 7, par. d), and it is this issue that we resolve against the commissioner.

The Department of Correctional Services properly points out that while this matter was pending before the State Division of Human Rights and the Human Rights Appeal Board, the Court of Appeals ruled that there was no violation of section 54 of the Civil Service Law in imposing a maximum age limit of 32 for New York City correction officers (Matter of Figueroa v. Bronstein, 38 N.Y.2d 533, 381 N.Y.S.2d 470, 344 N.E.2d 402, app. dsmd. 429 U.S. 806, 97 S.Ct. 41, 50 L.Ed.2d 67; see Knapp v. Monroe County Civ. Serv. Comm., 77 A.D.2d 817, 437 N.Y.S.2d 136 [age 29 limit for police officers not violative of Human Rights Law] ). Since it is not disputed that complainant's age in this matter exceeded the department's age limit, and the Court of Appeals had ruled a nearly identical age limit valid, there was no lawful predicate for the commissioner's order. Indeed, the commissioner completely fails to address this point in his application or reply papers though clearly raised by the Department of Correctional Services.

A reviewing court, however, is required to apply the law as it exists at the time of its...

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