Opinion
June 12, 1989
Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the determination is modified by adding a provision thereto reducing the award of back pay to the respondent Walter J. Berg by the amount of severance pay and unemployment benefits he received subsequent to the termination, and by annulling the third decretal paragraph of the determination; the determination is otherwise confirmed, the proceeding is otherwise dismissed on the merits, and the matter is remitted to the respondent New York State Division of Human Rights for a new assessment of compensatory damages for mental anguish consistent with this decision, and for a recomputation of back pay.
The determination by the respondent New York State Division of Human Rights that the petitioner was guilty of unlawful discrimination against the respondent Walter J. Berg on the basis of his age was supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176). We cannot conclude, moreover, that the Administrative Law Judge misapplied the law with respect to the burden of proof in the instant case (see, Matter of State Div. of Human Rights v County of Onondaga Sheriff's Dept., 71 N.Y.2d 623; Matter of Pace Coll. v. Commission on Human Rights, 38 N.Y.2d 28, 40; Price Waterhouse v. Hopkins, 490 US ___, 104 L Ed 2d 268).
We find, however, that the award for back pay was improperly calculated and should be decreased by the amount received by the complainant for unemployment and severance payments subsequent to termination (see, Matter of Bayport-Blue Point School Dist. v State Div. of Human Rights, 131 A.D.2d 849; County of Nassau v New York State Div. of Human Rights, 123 A.D.2d 341). Moreover, the award of $50,000 for mental anguish was excessive and we recommend that on remittitur, a new award not to exceed $5,000 be made (see, Matter of Unitel Video v. New York State Div. of Human Rights, 147 A.D.2d 377; Matter of Board of Educ. v. State Div. of Human Rights, 109 A.D.2d 988).
We have considered the petitioner's remaining contentions and find them to be without merit. Brown, J.P., Kooper, Harwood and Rosenblatt, JJ., concur.