Opinion
April 24, 1995
Adjudged that the petition is granted, on the law and the facts, with costs, and the determination is annulled.
It is axiomatic that a finding of discrimination by the Commissioner of the State Division of Human Rights must be confirmed if it is supported by substantial evidence on the record (see, Matter of State Div. of Human Rights v County of Onondaga Sheriff's Dept., 71 N.Y.2d 623; Matter of State Div. of Human Rights v Bystricky, 30 N.Y.2d 322; Matter of New York State Div. of Human Rights v Colucci, 199 A.D.2d 268). However, the Commissioner's finding that the petitioners' claim that the claimants could not afford the rent was pretextual is not supported by substantial evidence. The claimants' income was insufficient to enable the claimants to afford the rent requested by the petitioners. Thus, the petitioners could properly refuse to rent the subject premises to the claimants (see, Matter of State Commn. for Human Rights v Callan, 57 Misc.2d 504; see also, Matter of State Commn. for Human Rights v Kennelly, 30 A.D.2d 310, affd 23 N.Y.2d 722; Matter of Pace Coll. v Commission on Human Rights, 38 N.Y.2d 28). Therefore, the Commissioner's determination that the petitioners unlawfully discriminated against the complainants must be annulled. Pizzuto, Hart and Krausman, JJ., concur.
Bracken, J.P., dissents and votes to reverse with the following memoradum: The Commissioner's determination is supported by substantial evidence.