NEW YORK STATE DIVISION OF HUMAN v. NANCY POTENZA DESIGN & BUILDING ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
988
TP 11-00646
PRESENT: SMITH, J.P., CENTRA, CARNI, AND LINDLEY, JJ.
IN THE MATTER OF NEW YORK STATE DIVISION OF
HUMAN RIGHTS AND GENISE BENSON, PETITIONERS,
V MEMORANDUM AND ORDER
NANCY POTENZA DESIGN & BUILDING SERVICES, INC.,
ROCCO POTENZA, INDIVIDUALLY, HEALTHNOW NEW
YORK, INC., DOING BUSINESS AS BLUECROSS BLUESHIELD
OF WESTERN NEW YORK, POTENZA SERVICES INC., AS
SUCCESSOR-IN-INTEREST, AND POTENZA SERVICE, INC.,
AS SUCCESSOR-IN-INTEREST, RESPONDENTS.
CAROLINE J. DOWNEY, BRONX (TONI ANN HOLLIFIELD OF COUNSEL), FOR
PETITIONERS.
Proceeding pursuant to Executive Law § 298 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Joseph R.
Glownia, J.], entered January 4, 2011) to enforce a determination of
the New York State Division of Human Rights.
It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is granted.
Memorandum: Petitioner New York State Division of Human Rights
(SDHR) commenced this proceeding for judicial review and enforcement
of an order pursuant to Executive Law § 298 finding that respondent
Nancy Potenza Design & Building Services, Inc. was liable, as the
complainant’s employer, of aiding and abetting the sexual harassment
of the complainant. The Administrative Law Judge (ALJ) awarded the
complainant $10,000 in compensatory damages based on a hostile work
environment claim and the Commissioner of SDHR (Commissioner) adopted
the recommended order of the ALJ. We conclude that there is
substantial evidence supporting the determination (see generally 300
Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-
182).
The fact that the sexual harassment did not take place on the
employer’s premises does not relieve the employer of liability under
the Human Rights Law (Executive Law art 15; see Lockard v Pizza Hut,
162 F3d 1062). Additionally, respondent Rocco Potenza, as the owner
and president of the employer who condoned the sexual harassment, may
be held individually liable for the discriminatory actions that
damaged the complainant (see Patrowich v Chemical Bank, 63 NY2d 541,
-2- 988
TP 11-00646
542). Finally, we conclude that the amount of the award is reasonably
related to the wrongdoing and is supported by the evidence before the
Commissioner (see Matter of New York State Dept. of Correctional
Servs. v New York State Div. of Human Rights, 265 AD2d 809).
Entered: September 30, 2011 Patricia L. Morgan
Clerk of the Court