State Division of Human Rights v. Bystricky

• Decision Date: 04 May 1972
• Citation: 333 N.Y.S.2d 398,30 N.Y.2d 322,284 N.E.2d 560
• Parties: , 284 N.E.2d 560 In the Matter of STATE DIVISION OF HUMAN RIGHTS, Appellant, v. Lillian J. BYSTRICKY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 398

333 N.Y.S.2d 398

30 N.Y.2d 322, 284 N.E.2d 560

In the Matter of STATE DIVISION OF HUMAN RIGHTS, Appellant, v. Lillian J. BYSTRICKY, Respondent.

Court of Appeals of New York.

May 4, 1972.

Harry Starr and Henry Spitz, New York City, for appellant.

Submitted by respondent.

GIBSON, Judge.

The appeal presents the primary issue whether, upon an application to the Appellate Division for an order to enforce an order of the Human Rights Appeal Board imposing sanctions, upon finding respondent guilty of an unlawful discriminatory practice ¹, the Appellate Division may consider the merits of the board's determination despite respondent's failure to seek judicial review of the order finding discrimination, within the 30-day period limited by the statute. The Appellate Division, 36 A.D.2d 278, 320 N.Y.S.2d 684, considered that it had power to review the merits, and, upon finding that the board's determination was not supported by sufficient evidence, denied the application and dismissed the petition. The court was correct in each respect, and its order must be affirmed.

There is no great dispute as to the facts and the difficulty lies with the inferences which the board drew from them, and which the Appellate Division correctly found to be completely unwarranted.

The respondent, Mrs. Bystricky, owned a house at Apalachin which she and her four children occupied. She considered moving and contracted to sell to the complainant, Mr. Watkins, a black, after she had been, according to her testimony, badgered by a real estate agent into listing her property with him, upon his assurance that he would find her a suitable house in nearby Vestal where her children were in school.

Although she was shown homes by the real estate agency, she found nothing suitable. Nothing in the agent's testimony tends to contradict Mrs. Bystricky except as he testified that he made no 'promises' to find her another home. In fact, his testimony seems generally corroborative of respondent's recital of the events leading up to the contract.

After the agreement was signed in May, 1968, with an August 1, 1968 closing date, later extended, Mrs. Bystricky, according to her unrefuted testimony, began to become concerned. She was unable to locate another home that suited her and she desired to have her four children remain in the Vestal schools. During this period she twice communicated with Mr. Watkins, attempting to prevail upon him to withdraw from the contract because of her plight, but this he declined to do. It is to be noted that Mrs. Bystricky knew that Mr. and Mrs. Watkins were Negro before she signed the contract as she had met them when the agent showed them the house.

Mrs. Bystricky failed to appear at the closing and on October 4, 1968 Mr. Watkins brought a specific performance action, as to which there is nothing in the record beyond the parties' stipulation that the action had been commenced on that date; but there is no indication that it is no longer viable. It was certainly pending when Mr. Watkins made the discrimination complaint on October 29, 1968, in which he deposed that no other sort of redress was pending, and it was pending when the hearings commenced. ² In his complaint to the division, Mr. Watkins suggested that Mrs. Bystricky's neighbors had objected to the sale after the signing of the contract, but no evidence was ever produced to substantiate this and the testimony of two of Mrs. Bystricky's neighbors was to the contrary.

The Commissioner's determination rests upon the critical finding that respondent failed to consummate the sale to complainant 'solely because of his race and color'. The Appellate Division, in well-considered opinions, correctly found no substantial evidence supportive of the board decision. As Mr. Justice Sweeney wrote: 'The record merely establishes that complainant is black and respondent refused to sell him her property. To meet the standard of substantial evidence it must further appear that the reason for the refusal was because he was black. This the present record fails to do.' (36 A.D.2d 278, 280, 320 N.Y.S.2d 684, 686.) Mr. Justice Reynolds, concurring, found 'not a scintilla of evidence, let alone substantial evidence in the record, which even suggests that the respondent refused to sell her property to complainant because of his color' (pp. 280--281, 320 N.Y.S.2d p. 687). The sole dissenter did not reach the merits.

We turn, then, to the legal issue, which is that with respect to section 298 of the Executive Law. The first sentence provides: 'Any complainant, respondent or other person aggrieved by any order of the 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, in a proceeding as provided in this section.' The very last sentence of the long section provides: 'A proceeding under this section when instituted by any complainant, rspondent or other person aggrieved must be instituted within thirty days after the service of such order.'

Concededly, respondent took no appeal and when the division commenced its proceeding for enforcement, she responded Pro se, as she does in our court.

The proceeding in the Appellate Division, whether instituted by the Division of Human Rights or by a party aggrieved, is initiated by petition, whereupon 'the court shall have jurisdiction of the proceeding And of the questions determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript an order enforcing, Modifying, and enforcing as so modified, Or setting aside in whole or in part such order.' (Executive Law, § 298; emphasis supplied.) It is further, and importantly, provided in section 298: 'The findings of facts on which such order is based shall be conclusive if supported by sufficient evidence on the record considered as a whole.'

Clearly, the powers of the Appellate Division to review, to modify or set aside and to impose the test of 'sufficient evidence on the record considered as a whole', apply equally and without reservation to...