Opinion
February 2, 1996
Appeal from the Supreme Court, Allegany County, Francis, J.
Present — Green, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: Substantial evidence supports the determination of the Commissioner of Human Rights that Belmont Fire Company (Fire Company) discriminated against complainant because of her sex in denying her application for admission. Complainant made out a prima facie case of discrimination by demonstrating that she is a woman, that she was denied admission to the Fire Company and that she was qualified to be a fire-fighter (see, Ashker v. International Bus. Machs. Corp., 168 A.D.2d 724, 725). The evidence further demonstrated that no woman had ever been a member of the Fire Company. The burden then shifted to the Fire Company to provide a legitimate nondiscriminatory reason for rejecting complainant's application (see, Matter of Consolidated Edison Co. v. New York State Div. of Human Rights, 77 N.Y.2d 411, 418, rearg denied 78 N.Y.2d 909; Matter of New York City Bd. of Educ. v. Batista, 54 N.Y.2d 379, 384; Matter of Pace Coll. v. Commission on Human Rights, 38 N.Y.2d 28, 39-40; Belanoff v. Grayson, 98 A.D.2d 353, 356). The Fire Company failed to provide any reason for its rejection of complainant's application, which was by secret ballot of the membership. Consequently, the Commissioner was entitled to draw the inference that the Fire Company rejected the application of complainant because she is a woman. A reviewing court should not substitute its judgment for that of the Commissioner "if [hers] is supported by substantial evidence" (Matter of Consolidated Edison Co. v New York State Div. of Human Rights, supra, at 417).
The Fire Company contends that lengthy administrative delay in resolving this matter requires dismissal of the complaint. The Fire Company failed to demonstrate "substantial actual prejudice attributable to the delay" (Matter of Corning Glass Works v Ovansik, 84 N.Y.2d 619, 624); consequently, dismissal of the complaint is not required. Finally, we reject the Fire Company's argument that the award of damages in the amount of $10,000 is excessive (see, Matter of Marcellus Volunteer Fire Dept. v Stock, 155 A.D.2d 982).