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Vance v New York City Commission on Human
2012 NY Slip Op 31759(U)
June 26, 2012
Supreme Court, New York County
Docket Number: 113818/11
Judge: Eileen A. Rakower
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SCANNED ON 71612012
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
Index Number : I 1381812011
NYC COMMISSION ON HUMAN RIGHTS
SEQUENCE NUMBER : 002
The following papem, nurnbrmd 1 to
Notlce of MotionlOrder to Show Cause
MOTION SEQ. NO.
,were read on this motlon tolfor
I No(s). I
I No(s). 2
-Affldavltn - Exhlbltr
Answerlng Affldavlts - Exhiblta
Upon the fomgolng papers, It Is ordered that thlo motlon is
1. CHECK ONE: .....................................................................
@ CASE DISPOSED
........................... MOTION is: uGRANTED
CHECK IF APPROPRIATE: ................................................
2. CHECK As APPROPRIATE:
0DO NOT POST
NEW YORK CITY COMMISSION ON HUMAN RIGHTS,
Mot. Seq. 002
Respondent submits this motion for leave to reargue this courts April 16,
20 12 decision pursuant to CPLR $222 1(d). This court’s decision overlooked the
fact that this is a special proceeding brought under the Administrative Code of the
City of New York (“Administrative Code”) 588-123 and 8-125 and CPLR Article
4, not Article 78. Section 8- 123 provides specific procedures for seeking judicial
review of a Human Rights Commission determination and $8-1 25 provides
procedures for seeking enforcement of a Human Rights Commission
determination. Since this is not an Article 78 proceeding, there is no basis to refer
the substantial evidence question to the Appellate Division. Pursuant to $88- 123
and 8-125 and Article 4, this Court must hear and decide all issues raised in the
Petition and Answer, including the questions of substantial evidence. Therefore,
the instant order is amended as follows.
Petitioner brings this motion for an Order vacating the Decision and Order
made by the New York City Commission on Human Rights dated November 9,
20 11, based upon a default OATH Report and Recommendation. Petitioner, A
Bridal Hair and Make-up Salon by Marina Vance, is a d/b/a of Marina Vance.
Marina Vance does not presently own a salon, but states that she occasionally
rents a chair at various salons in Manhattan to service clients, or services clients at
Petitioner asserts that she was not properly served with a Notice of Trial and
accordingly, was unaware of the OATH hearing which took place on June 13,
20 12. Petitioner annexes copies of envelopes that were returned to the
Commission from all five of the addresses where they attempted to serve
Petitioner. She points out that while the Decision notes that the Commission
attempted service on Petitioner at five different addresses, none of these addresses
were at her home address on record with the State of New York Department of
State Division of Licensing Services that issued her cosmetology license.
Petitioner asserts that she has lived at this address since 1998. She also says that
she does not own, nor is she employed by, a salon; she occasionally rents a chair at
various salons and sometimes services clients at their homes.
The commission has broad discretion “to decide how to conduct its
investigations.” (See, Stern v. NYC Comm ’nHuman Rights, 3 8AD3d 302 [ lstDept
20071). “So long as the investigation is sufficient and the claimant afforded a full
opportunity to present [her] claims” the method or methods to be employed in
investigating a claim” are left to the human rights agency. (See, McFarZand v. New
York State Div. Human Rights,24 1 AD2d 108 [ 1st Dept 19981).
Petitioner fails to prove that she was not given a full and fair opportunity to
rebut the claims against her. The Commission made efforts to contact Petitioner to
notify her of its intention to proceed to trial at five different locations, two
locations which Petitioner advertises on her official website. Petitioner admits in
her complaint that she had provided a San Jose address to the Commission and
that she received the Complaint at that address, and submitted an Answer. The
court also notes that Petitioner states she never received notice of trial, yet
following the mailing of the ALJ’s Report and Recommendation to two addresses
which she had been sent the notice of trial, Petitioner immediately submitted
comments to the Commission.
Additionally, Petitioner requested that the ALJ’s Report and
Recommendation, and the Commission’s Decision and Order should be vacated
because they were arbitrary and capricious and not supported by substantial
evidence, the damages and civil penalties awarded were excessive and that Tiffany
McIntosh’s (“McIntosh”) complaint before the Commission should be dismissed
on the ground that she was not denied a public accommodation.
The relevant facts are as follows. On November 16, 2009, Tiffany
McIntosh, an African American woman, filed a verified complaint with the Law
Enforcement Bureau of the Commission, alleging that Petitioner discriminated
against her by denying her a public accommodation on account of her race.
McIntosh alleged that she called Petitioner to schedule a hair appointment for her
wedding and was asked about her race. She responded that she was black, and
they scheduled the appointment, McIntosh asserts that she missed the
appointment with Petitioner due to a last minute conflict, and Petitioner left her a
voicemail berating her for failing to cancel the appointment. McIntosh alleges that
Petitioner called her a “nigger,” among other derogatory remarks. McIntosh also
claims that in a subsequent conversation, Petitioner told her that she does “not do
business with niggers.”
The Bureau investigated McIntosh’s claims, and determined that there was
probable cause to believe that Petitioner had discriminated against McIntosh and
referred the case to the OATH for a trial before ALJ Alessandra Zorgniotti. As
discussed above, Petitioner did not appear at the trial.
On July 18,20 11, ALJ Zorgonotti issued a Report and Recommendation
finding that Petitioner discriminated against McIntosh by denying her the rights,
privileges and advantages of a public accommodation on account of her race and
recommended compensatory damages of $7,500 and a civil penalty of $1 5,000.
The Commission adopted the finding and recommendations of the Report, by
Decision and Order, dated November 1 1, 20 11, and hrther, rejected Petitioner’s
claim, made following the issuance of the Report, that she was not properly served
with notice of the OATH trial.
Section 8- 123 of the New York City Administrative Code provides that
“[tlhe findings of the commission as to the facts shall be conclusive if supported
by substantial evidence on the record considered as a whole.” After a review ofthe
commission’s trial transcript, it is clear that the decision is fully supported by
substantial evidence. In the hearing, McIntosh provides a copy of the voice mail
allegedly left by Vance which stated, “Hello Tiffany, this is Marina Vance. We
had an appointment today at 11:30- why didn’t you show up, or why didn’t you
call, alright? Ah this is very common with the- I’m sure you’re a fucking nigger,
ah, who doesn’t care for anybody’s time, alright... Tiffany with an “F”, a fucking
nigger, next time, or a fucking Dominican bitch ... Good bye.’’ McIntosh testified
that when she tried to call Vance back to explain why she did not show up and to
apologize, Petitioner told her “I do not want to talk with you, I don’t do business
Thus, there is substantial evidence that Petitioner discriminated against
McIntosh by making racially discriminatory comments, and making her feel
unwelcome as a customer. There is also evidence that she was denied a public
accommodation. NYCHRL 8- 107(4)(a) makes it unlawful for “any place or
provider of public accommodation because of the actual or perceived ... race... of
any person directly or indirectly to refise, withhold from or deny to such person
any of the accommodations, advantages, facilities or privileges thereof. ..” The
record indicates that Petitioner made discriminatory statements that she refused to
do business with people of a certain race.
With regard to damages and civil penalties, “the relief imposed by the
Commissioner need only be reasonably related to the discriminatory conduct.
Unless the award is so arbitrary and capricious as to constitute an abuse of
discretion, it is not erroneous as a matter of law.” (See, N a v York City Transit
Authority v. State Div. O Human Rights, 78 NY2d 207 ). Here, the
Commissioner adopted the recommendation of ALJ Zorgonotti. The ALJ’s
recommendation for civil penalties considered various factors, such as the impact
on the public, the use of offensive language, and the blatant disregard for the
Wherefore it is hereby,
ORDERED that Respondent New York City Commission on Human
Right’s motion to reargue is granted and this Court’s decision dated April 13,
2012 is vacated; and it is further,
ORDERED that upon reargument, Petitioner Marina Vance and A. Bridal
Hair and Make-up Salon By Marina Vance’s motion to vacate the decision of the
New York City Commission on Human Rights dated November 9,201 1 is denied
in all respects.
This constitutes the decision and order of the court. All other relief
requested is denied.
Dated: June 26,2012
EILEEN A. RAKOWER, J.S.C.
JUl 0 6 2012