Wierzbicki v. Rosa

—Proceeding pursuant to Executive Law § 298 to review an order of the State Division of Human Rights, dated June 16, 1993, which adopted, with modifications, the recommendation of the Administrative Law Judge, made after a hearing, finding that the petitioners had unlawfully discriminated against Hugh DeLeon and Angela DeLeon, and awarded Hugh DeLeon compensatory and punitive damages in the amount of $21,120 and Angela DeLeon compensatory and punitive damages in the amount of $15,000.

Adjudged that the petition is granted, on the law and the facts, with costs, and the determination is annulled.

It is axiomatic that a finding of discrimination by the Commissioner of the State Division of Human Rights must be confirmed if it is supported by substantial evidence on the record (see, Matter of State Div. of Human Rights v County of Onondaga Sheriff’s Dept., 71 NY2d 623; Matter of State Div. of Human Rights v Bystricky, 30 NY2d 322; Matter of New York State Div. of Human Rights v Colucci, 199 AD2d 268). However, the Commissioner’s finding that the petitioners’ claim that the claimants could not afford the rent was pretextual is not supported by substantial evidence. The claimants’ income was insufficient to enable the claimants to afford the rent requested by the petitioners. Thus, the petitioners could properly refuse to rent the subject premises to the claimants (see, Matter of State Commn. for Human Rights v Callan, 57 Misc 2d 504; see also, Matter of State Commn. for Human Rights v Kennelly, 30 AD2d 310, affd 23 NY2d 722; Matter of Pace Coll, v Commission on Human Rights, 38 NY2d 28). Therefore, the Commissioner’s determination that the petitioners unlawfully discriminated against the complainants must be annulled. Pizzuto, Hart and Krausman, JJ., concur.

Bracken, J. P., dissents and votes to reverse with the following memoradum: The Commissioner’s determination is supported by substantial evidence.