Thoreson v. Penthouse International, Ltd.

OPINION OF THE COURT

Rubin, J.

On appeal, defendants contend that the award of compensatory damages is not supported by the evidence and that punitive damages are unavailable and, in any event, excessive. The Trial Justice found that plaintiff was pressured into engaging in sexual activity with defendant Robert Guccione’s business associates, specifically an 18-month liaison with a financial advisor and a single contact with an Italian furniture manufacturer. The court further concluded that plaintiffs compliance was an implicit condition of her employment which was terminated when she refused to participate in a promotional tour in Japan because she "was afraid what he was going to ask me to do on the tour” and "who he was going to ask me to sleep with next.” The court commented, "[plaintiffs testimony concerning these matters was controverted only by defendant Guccione’s blanket denial that the events took place. I do not believe him” (149 Misc 2d 150, 157).

As this court noted in Claridge Gardens v Menotti (160 AD2d 544, 544-545), "On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (see also, Nightingale Rest. Corp. v Shak Food Corp., 155 AD2d 297, lv denied 76 NY2d 702). We are not prepared to say that the totality of the circumstances, as perceived by the Trial Justice from the testimony, does not permit the conclusion that plaintiff was the victim of quid pro quo sexual harassment (see, Jones v Flagship Intl., 793 F2d 714, 719-720 [5th Cir 1986], cert denied 479 US 1065 [1987]; Koster v Chase Manhattan Bank, 687 F Supp 848, 861 [SD NY 1988]). While the dissenter’s observation that plaintiff willingly embarked upon a career which exploited her sexuality is entirely accurate, it does not preclude the subsequent withdrawal of consent to exploitation, nor does it necessarily imply consent to sexual encounters of the type complained of. Even a wife, whose marital contract is deemed to imply consent to intimate physical contact, is free to withhold it (People v Liberta, 64 NY2d 152, 162-164).

Similarly, it cannot be said that the amount of the compensatory damages awarded by the Trial Justice is without foundation. Plaintiff testified that her experiences resulted in sufficient anguish to cause her to seek counselling from a psychotherapist. The Court of Appeals has emphasized that "medical treatment is not a precondition to recovery. Mental injury may be proved by the complainant’s own testimony, corroborated by reference to the circumstances of the alleged misconduct” (Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 216). As held in Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights (35 NY2d 143, 147), "due to the strong antidiscrimination policy spelled out by the Legislature of this State, an aggrieved individual need not produce the quantum and quality of evidence to prove compensatory damages he would have had to produce under an analogous provision, and this is particularly so where, as here, the discriminatory act is intentionally committed” (see also, Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492, 497). Nor can we conclude that the award is excessive as a matter of law (Matter of New York City Tr. Auth. v State Div. of Human Rights, supra,).

This case presents the issue of whether punitive damages are available in an action brought pursuant to Executive Law § 297 (9). The question is essentially one of first impression. While our decision in Murphy v American Home Prods. Corp. (136 AD2d 229) has been cited as possibly endorsing such a position (Seitzman v Hudson Riv. Assocs., 143 Misc 2d 1068, 1072-1073), the issue was never reached in that case. Likewise, certain Federal cases have suggested, with varying degrees of conviction, that under the New York Human Rights Law (Executive Law § 290 et seq.), as opposed to title VII of the Civil Rights Act of 1964 (as amended; 42 USC § 2000e et seq.), a plaintiff "may be entitled to punitive damages” (Selbst v Touche Ross & Co., 587 F Supp 1015, 1017 [SD NY 1984]; see also, Giuntoli v Garvin Guybutler Corp., 726 F Supp 494 [SD NY 1989]; O’Brien v King World Prods., 669 F Supp 639 [SD NY 1987]). Lippa v General Motors Corp. (760 F Supp 1062, 1066 [WD NY 1990]) went so far as to assert that the Executive Law affords "full compensatory and punitive relief, including damages for suffering and anguish”. The cases cited as authority for this proposition, however, Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights (supra, at 145-146) and Matter of Board of Educ. v McCall (108 AD2d 855), hold only that an award for mental anguish is a component of compensatory damages. By contrast, Conan v Equitable Capital Mgt. Corp. (774 F Supp 209 [SD NY 1991]), a diversity action for employment discrimination under the Executive Law, dismissed the plaintiff’s claim for punitive damages, concluding that nothing in the legislative history of the enactment contemplates such an award (accord, Tyler v Bethlehem Steel Corp., 958 F2d 1176 [2d Cir 1992]). No State court opinion which directly addresses the issue has been brought to this court’s attention, and none has been found. Micari v Mann (126 Misc 2d 422), cited by the Trial Justice in support of the punitive damages award, is not a case which arises under the Executive Law, and the common-law predicate for a claim of sexual harassment which it espouses has been expressly rejected (Murphy v American Home Prods. Corp., 58 NY2d 293, 307).

It is clear that, in a proceeding brought before the New York State Division of Human Rights, "the agency may award only compensatory — not exemplary — damages” (Matter of New York City Tr. Auth. v State Div. of Human Rights, supra, at 216). However, Executive Law § 297 (9) provides: "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate”, except under certain circumstances not relevant to this matter. At issue is whether the Legislature, by employing this language, intended punitive damages to be awarded in an action brought before a court.

The liability created by the Executive Law is unknown at common law. As the Court of Appeals observed in Murphy v American Home Prods. Corp. (supra, at 307): "In enacting subdivision 9 of section 297, the Legislature created a new cause of action not previously cognizable, but, in doing so, provided no specific period of limitations for such action. Consequently the institution of civil actions to recover damages for unlawful discriminatory practices under subdivision 9 is governed by the three-year period of limitations prescribed in CPLR 214 (subd 2) applicable to 'an action to recover upon a liability, penalty or forfeiture created or imposed by statute’ ” (emphasis in original).

Normally an enactment which creates an entirely new cause of action is subject to strict construction, and the courts will not extend the statute beyond its express provisions (McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [c]). However, the Human Rights Law declares that it "shall be construed liberally for the accomplishment of the purposes thereof’ (Executive Law § 300). This statement negates the effect of the general rule of construction and renders this avenue of inquiry unavailing.

The controlling tenet of statutory construction is that an act shall be given the effect intended by the Legislature (McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a]). In determining the scope intended to be accorded to the provision for maintenance of an action "for damages and such other remedies as may be appropriate”, reference to extrinsic aids to interpretation is helpful (McKinney’s Cons Laws of NY, Book 1, Statutes § 120 et seq.). A report of the Governor’s Committee to Review New York Laws and Procedures in the Area of Human Rights, submitted March 27, 1968, part V [A], entitled "Remedies Available to Complainants”, states:

"recommendation: Aggrieved persons should have a private cause of action for damages or equitable relief as an alternative to a proceeding before the Division.

"The Committee recommends that any individual subjected to a discriminatory practice should have a right of action in a court of competent jurisdiction for damages caused by such discriminatory practice or other appropriate relief, including the relief set forth in the proposed Human Rights Law. Although we would expect most aggrieved persons to use the less formal administrative procedures of the Division or a local human rights agency, they should not be required to do so” (emphasis added).

Proposed Human Rights Law (Executive Law) § 309, entitled "Remedies”, provides: "1. Any person claiming to be aggrieved by an act which is a discriminatory practice under this article shall have a right of action in any court of appropriate jurisdiction for damages caused by such act, other relief set forth in this article and such equitable remedies as may be appropriate” (emphasis added). The use of the language "damages caused by such act” clearly denotes compensatory damages. It is also apparent that, by the use of the term "other appropriate relief’, the Committee intended to indicate other forms of relief provided in the Human Rights Law together with appropriate equitable remedies. Indeed, the remedies provided in the law, as ultimately enacted, are largely equitable, including orders to cease and desist, take affirmative action, disgorge profits and report compliance, in addition to the payment of compensatory damages (Executive Law § 297 [4] [c], amended by L 1968, ch 958).

That the Human Rights Law did not contemplate the award of punitive damages is made plain by a 1991 amendment designed to bring the act into compliance with Federal law in the area of housing discrimination. In a memorandum regarding "amendments to the Human Rights Law to comply with the federal Fair Housing Amendments Act of 1988” (42 USC § 3601 et seq.), the State Division of Human Rights, commenting on existing law, noted, "At present the Human Rights Law * * * d. Permits only compensatory damages to aggrieved persons” (1991 McKinney’s Session Laws of NY, at 2030, 2031). The memorandum recommends amendments "required to achieve substantial equivalency” with Federal law including, "Adding a provision providing for punitive damages to be awarded to aggrieved persons, only in housing discrimination cases, not to exceed $10,000” (id., at 2030; emphasis added). This provision is now incorporated in Executive Law § 297 (4) (c) (L 1991, ch 368, § 6, eff July 15, 1991). The maxim expressio unius est exclusio alterius governs (McKinney’s Cons Laws of NY, Book 1, Statutes § 240): by including in the Human Rights Law a provision for the award of punitive damages in cases of housing discrimination only, the Legislature has indicated an intent to exclude punitive damages in all other instances.

The language of the statute and the legislative history suggest only that the Legislature intended to provide an alternative, judicial forum for the determination of claims arising under the Human Rights Law and not to afford relief which is both different in kind and greater in degree from that available in administrative proceedings before the State Division of Human Rights. Judicial expansion of the relief available to an aggrieved party who elects to proceed in court to encompass potentially large awards for punitive damages would discourage claimants from seeking resolution of their claims in an administrative forum. This is an irrational result which conflicts with the legislative intent to establish procedures which are primarily administrative (Conan v Equitable Capital Mgt. Corp., 774 F Supp 209, supra).

Finally, we note that exemplary damages are not recoverable in comparable Federal actions (e.g., Selbst v Touche Ross & Co., 587 F Supp 1015, supra; see, 42 USC § 2000e et seq.) and, as one amicus brief candidly concedes, cases in which such damages have been awarded "are contrary to the overwhelming weight of authority.” Significantly, the Legislature has amended the Human Rights Law to afford punitive damages only when required in order to achieve "substantial equivalency” with Federal law. We conclude, therefore, that the award of punitive damages by Supreme Court in this case is contrary to statute and must be vacated.

Accordingly, the judgment of the Supreme Court, New York County (Elliott Wilk, J.), entered on or about November 8, 1990 which, after nonjury trial, inter alia, awarded plaintiff $60,000 in compensatory damages and $4,000,000 in punitive damages on her claim for sexual harassment brought pursuant to Human Rights Law (Executive Law) § 296 (1) and § 297 (9), should be modified, on the law, to the extent of vacating the award of punitive damages and, except as so modified, affirmed, without costs. The appeal from the order of the same court, entered January 3, 1991, which denied defendants’ motion to vacate the award of punitive damages (CPLR 4404 [b]) is dismissed as subsumed in the judgment (CPLR 5501 [a] [1]), without costs.