District 1199 Natlional Union of Hospital v. State Division of Human Rights

58 A.D.2d 793, 396 N.Y.S.2d 413, 1977 N.Y. App. Div. LEXIS 12951, 39 Fair Empl. Prac. Cas. (BNA) 929

Opinion

Motion to annul order of respondent Human Rights Appeal Board, made on or about February 18, 1977, affirming order of respondent Commissioner of Human Rights, made on or about January 20, 1976, granted to the extent only of unanimously modifying those orders, on the law, to deduct from the award of back pay to be paid to complainant Shirlee Evans by petitioner the amounts received by her as unemployment insurance, and otherwise to confirm the orders, without costs and without disbursements. Cross motion by respondent board for enforcement of the order of January 20, 1976, unanimously granted to the same extent, without costs and without disbursements. There was substantial evidence on the part of the claimant and respondent to justify the orders under review, and petitioner made not the slightest effort to produce evidence to the contrary, i.e. that the claimant’s physical condition was such as to render her unfit to hold the position from which she had been ousted. Petitioner’s claim that claimant’s award of back pay is unjustified because she could have accepted the inferior position offered to her is entirely without merit (see Milage v Woodward, 186 NY 252); however, the amount of unemployment insurance received by her is properly deductible (cf. Coyne v Campbell, 11 NY2d 372). Concur—Kupferman, J. P., Lupiano, Evans and Markewich, JJ.