Diaz Chemical Corp. v. New York State Division of Human Rights

Determination modified on the law and as modified confirmed without costs in accordance with the following Memorandum: Petitioner has failed to demonstrate that it suffered substantial actual prejudice by reason of the 14-year delay of respondent New York State Division of Human Rights (SDHR) in reaching a final determination and thus petitioner is not entitled to dismissal of the petition (see, Matter of Corning Glass Works v Ovsanik, 84 NY2d 619, 624). Nevertheless, we do not condone SDHR’s extraordinary delay in resolving complaints (see, Matter of Alverson v State Div. of Human Rights, 181 AD2d 1019 [Balio, J., concurring]).

The determination of the Commissioner that petitioner committed an unlawful discriminatory practice by terminating the employment of complainant because of her pregnancy is supported by substantial evidence (see, Matter of Consolidated Edison Co. v New York State Div. of Human Rights, 77 NY2d 411, 417, rearg denied 78 NY2d 909; Matter of Heidie Tuxedos & Formals v New York State Div. of Human Rights, 224 AD2d 1022).

We conclude, however, that the award of damages for mental anguish is excessive. Complainant testified that she was "very upset” and "very emotionally distraught” because the termination of her employment would result in termination of her medical insurance. Complainant admitted, however, that within approximately one month she learned that she would be covered by her husband’s health insurance carrier, which resolved much of her distress. Although proof of mental anguish may be established by the testimony of the complainant alone (see, Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 216; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 207 AD2d 585, 586), an award of $5,000 is more consistent with awards for mental anguish made in similar cases (see, Matter of Heidie Tuxedos & Formals v New York State Div. of Human Rights, supra; Matter of City of Fulton v New York State Div. of Human Rights, 221 AD2d 971).

Thus, we modify the determination by reducing the award for mental anguish to $5,000 and otherwise confirm the determination.

All concur except Balio and Boehm, JJ., who dissent and vote to annul the determination in the following Memorandum.