Opinion
December 12, 1995
Appeal from the Supreme Court, New York County (Phyllis Gangel-Jacob, J.).
The Division of Human Rights' finding that the Dynasty Hotel discriminated against complainant, a black man, by failing to rent a room to him although it offered a room to a white friend of his the same day he inquired, was supported by substantial evidence ( see, Matter of Imperial Diner v State Human Rights Appeal Bd., 52 N.Y.2d 72, 77). Notwithstanding the inconsistencies in complainant's testimony and the contradictory statements of a witness for the hotel, the reviewing court may not substitute its judgment for that of the agency or pass on the credibility of witnesses where conflicting evidence exists ( see, State Div. of Human Rights v Rochester Prods. Div., 112 A.D.2d 785, 785-786).
The compensatory damage award, which is twice that recommended by the Administrative Law Judge, and the punitive damages awarded against the hotel for "[c]onscious and repeated disregard for Complainant's human rights" are not supported by the record. A statement made by complainant to a Division of Human Rights employee during an intake interview, recorded in a memorandum and subsequently admitted into evidence as a business record, indicates that he initially complained of being offered only transient instead of permanent accommodations, not that he was denied any room whatsoever.
Concur — Rosenberger, J.P., Rubin, Kupferman, Asch and Mazzarelli, JJ.