State Division of Human Rights v. Bystricky

Sweeney, J. This is a proceeding initiated in the Appellate Division of the Supreme Court, Third Judicial Department, pursuant to section 298 of the Executive Law, to enforce an order of the Human Bights Appeal Board, dated July 24,1970. The Human Bights Appeal Board has affirmed a determination of the Commissioner of Human Bights ruling that respondent is guilty of an unlawful discriminatory practice in refusing to sell her property to complainant Herbert Watkins and his wife because of their color. The board, however, reduced the damages imposed from $2,500 to $1,000 which includes a $200 deposit. The testimony at the hearing revealed that a realtor brought complainant and respondent together for the purpose of the sale of respondent’s property to the complainant. Subsequent thereto respondent agreed in writing to sell to complainant and accepted a deposit of $200. The date for the closing was agreed upon. Just prior to the closing date respondent advised complainant that she had changed her mind and refused to go through with the sale. Bespondent contends, and so testified, that the reason she changed her mind was her inability to find suitable quarters for herself and children. Neither party sought judicial review of the board’s order within the 30-day period as prescribed by the statute. On this enforcement order proceeding brought by the division, respondent urges this court to examine its merits. The first question presented for our determination is whether we may properly consider the merits of the order seeking enforcement where no appeal was taken by respondent for a judicial review of the finding of discrimination. Being mindful of the purpose and nature of this recently enacted legislation, we con280 elude that we may. The language of the statute is broad and it confers ample authority on this court to scrutinize an order on which we are to place our stamp of approval. (Matter of Hempstead Volunteer Fire Dept. v. New York State Div. of Human Rights, 35 A D 2d 601; Matter of Moskal v. New York State Div. of Human Rights, 36 A D 2d 46.) As to the merits, complainant has the burden of establishing by substantial evidence that the sole reason respondent refused to sell her property to him was because he was black. In our opinion, an examination of the record in its entirety reveals that complainant has failed to meet this burden. It is most significant that prior to the signing of the sale agreement and accepting the deposit, respondent knew complainant was black. There is also testimony that the respondent’s neighbors made no objection to complainant because he was black. 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. Consequently, the order of enforcement must be denied. If complainant has been wronged by respondent he has an adequate remedy. The record reveals that complainant had, as a matter of fact, filed an action in Supreme Court for specific performance prior to the filing of his complaint against respondent with the division. Whether such an action is a bar to his proceeding before the division, we do not determine since it was not raised. (See Executive Law, § 297, subd. 9; § 300.) The application should be denied, and petition dismissed, •without costs.