Mr. Vajda's version of these events differs from the Portees'. First of all, he testified that he never said or implied that Mr. Portee should come down and sign the lease, since he knew that the lease could not be signed until the money cleared. T.268. Second, he said that he explained to Mrs. Portee that he wanted Mr. Portee to come to see the Premises because he had had several experiences in which he showed a woman a property she liked, so he took it off the market, but when her husband came to see it, he did not like it and so the rental or sale fell through. T.263-64.
Because of this, he was surprised when Mr. Portee walked into HRE with his family and said, "'I want to sign the lease and get out of here.'" T.275. He excused himself and went upstairs to see Mr. Hastava. Mr. Hastava was on the phone, and did not get off for about 10 minutes. T.276-77. Once he did, Mr. Vajda explained that the Portees were downstairs but that they had written personal checks for the lease. In addition, there were several other matters that needed to be attended to before they could move in. T.275-77. Despite this, Mr. Portee was demanding to sign the lease. T.275, 277.
Mr. Hastava told Mr. Vajda to go ahead with the transaction, but under no circumstances could he let Mr. Portee sign the lease. T.276, 359. This was because HRE was acting as managing agent for the Premises, so that if both tenants signed the lease, they could have taken immediate possession. T.362-63, 401. Mr. Vajda never mentioned that, Mr. Portee was black, or that his color was a problem. T.277.
Mr. Vajda returned downstairs while Mr. Hastava remained in his office. T.277. He tried to explain to Mr. Portee that the checks had to clear before he could move in, but Mr. Portee kept interrupting him to say that he had come to sign the lease. T.277-78. Mr. Vajda thought that Mr. Portee thought that signing the lease would give them immediate possession. T.278. He tried to explain that he was not giving the Portees the runaround. Id.
During this conversation, Mrs. Portee was standing by her husband with her key ring in her hand. Mr. Vajda testified that he approached her, gently took the key ring from her, and removed the key to the house. While he was doing so, that he was explaining why: it was his only key, she had already used it to show her husband the house, and he needed it to let the water company in to install a water meter. Mrs. Portee did not respond at all while he did this. T.282-84.
1. Why Mr. Portee was not allowed to sign the lease
According to Mr. Vajda and Mr. Hastava, there were two reasons, in addition to waiting for the checks to clear, why the Portees could not take immediate possession of the Premises. The first was that an additional clause needed to be put in the lease with respect to the tools in the shed behind the house. The second was that a water meter needed to be installed by the water company before the water could be turned on.
a. The tool clause
In addition to the three standard clauses that were inserted in the lease while Mrs. Portee waited, T.89-90, 294-96, the Gartners (the owners of the Premises) required that a clause be inserted in the lease to the effect that the tenants were responsible for the tools, which could be used but not removed from the house. T.290-91, 295. Mr. Vajda had not inserted that clause when he inserted the other clauses (while Mrs. Portee was waiting to sign the lease) because the tool clause was not standard, and he needed to work on the language of the stipulation. T.296-98. Moreover, because he was not expecting the Portees to return until later in the afternoon at the earliest, he did not rush to insert the clause after Mrs. Portee left his office. T.291.
b. The water meter
Mr. Vajda also testified that, although he told Mrs. Portee that she had to contact the water company to put the' water in her name, he first had to contact them to ask them to install a water meter at the Premises. T.269, 276. The water company had to be contacted twice: once by HRE to have the water meter installed, and then again by the Portees to have the water put in their name. T.308-09. Mr. Vajda claimed that he could not give the Portees immediate possession because it was his belief that, until the water company was contacted and put in a meter, there was no water in the house. T. 269.
D. The checks
After Mr. Vajda took the keys from Mrs. Portee, Mr. Portee asked, "Where's my checks then?" T.108, 160. According to the Portees, Mr. Vajda told him that he did not have the checks. T.108, 160. Mr. Portee called Mr. Vajda a bigot. T.109, 281. Justin asked his parents what was going on. Mrs. Portee told him that HRE would not rent them the house "because of your father." T.109. Mr. Portee told him it was "because I'm black." T.109, 158.
The Portees turned to leave. Mr. Portee told Mr. Vajda, "You are going to be hearing from us." Mr. Vajda either said to them, "You could do what you want," T.109, or, "You can take what you want and do what you want with it." T.157. They walked out.
Mr. Vajda's version is different. He testified that after he took the keys from Mrs. Portee, Mr. Portee asked for the checks back and said that he wanted to call the deal off. T.278-79. Mr. Vajda told him that he was entitled to the checks, and although they were not in his desk, they were in the building. T.279. He did not specifically tell the Portees that Mr. Hastava had them. T.279.
"I told him [Mr. Portee], 'It's on the premises, you could get it back if you wanted,' but I said, 'Why don't we calm down and wait until Monday. . . .'" T.279. According to Mr. Vajda, Mr. Portee replied, "'I don't believe you've got the checks here. I think you deposited it in the bank already.'" T.279. Mr. Vajda denied this, since he wanted to hold on to the checks until Mrs. Portee could transfer the funds into the account. Furthermore, he testified that the branch of the bank HRE used was closed that day. T.279-80.
Mr. Vajda succeeded, he thought, in calming Mr. Portee down. When the Portees left, it was Mr. Vajda's understanding that the deal was still on, and he would wait until Monday afternoon to deposit the checks. T.280, 285. Acting on that belief, he took the house off the market and did not let any other agent show it. T.285.
E. The deal falls through
After the Portees left the agency, Mrs. Portee drove Mr. Portee back to his job. In the car, they discussed the events at HRE. Both of them were very upset. T.111-12, 159, 161-62. Mr. Portee said that he thought that HRE had put the checks in the bank. T.161. Justin was also upset and sad. T.112, 216.
After she dropped Mr. Portee off, Mrs. Portee drove home. She was (and is) an office clerk at a law firm. T.113, 239. Once home, she left a message with one of the attorneys in her office, Benjamin Weinstock. She wanted to ask him what to do about the checks in HRE's possession, and also wanted to find out what her rights were in the situation, T.112-13, since the Portees believed that they had been discriminated against because of Mr. Portee's race. T.160. Once Mrs. Portee spoke with Mr. Weinstock, the Portees instituted administrative proceedings in the New York State Division of Human Rights (DHR). T.113-14.
Because of Mr. Portee's belief that HRE had deposited or cashed the checks on Saturday, and on Mr. Weinstock's advice, Mrs. Portee called her bank on Monday, December 4, and asked it to stop payment on the two checks she had given to Mr. Vajda on Saturday. T.116-17.
In addition, when Mrs. Portee went to work on Monday, December 4, she spoke with another lawyer, Brad Rabinowitz, about the incident on Saturday. Mr. Rabinowitz called HRE and spoke with Rosemarie Malone, another agent of Hastava. T.241.
He was unsure whether he placed the call spontaneously or whether it was in response to a message from Ms. Malone to call her. T.249. He was also uncertain as to whether he told Ms. Malone that the Portees had stopped payment on the checks for the Premises. T.251
According to Mr. Vajda, when the Portees left he believed that they still had a deal. T.284-85, 400. As discussed above, he took the house off the market. T.285.
On Monday afternoon, under the impression that Mr. Vajda had cleared up any difficulties with the Portees, T.366-67, Mr. Hastava negotiated the checks to his bank. T.367-68. He knew that the Portees wanted possession as quickly as possible. In his business experience, he had found that a check would clear a day or two more quickly if it were cashed rather than deposited. T.367-68. Therefore, on Monday afternoon, December 4, 1989, he cashed the $ 1,500 check made out to HRE. T.367.
On Tuesday, December 5, 1989, Mr. Hastava instructed Rosemarie Malone, his other agent, to call the Portees to "continue with the rental". T.370, 416, 420. She did so, and told Mr. Portee she was calling about the Premises. He told her to call Mrs. Portee at work and gave her Mrs. Portee's business number. T.416-17.
Mrs. Portee was not available when Ms. Malone called, so she left a message asking Mrs. Portee to return her call. T.417. Later that day Brad Rabinowitz returned Ms. Malone's call. He told Ms. Malone that the Portees had decided not to go forward with the rental and had stopped payment on their checks. T.417-18. Ms. Malone relayed this information to Mr. Hastava, who put the house back on the market. T.369-71, 421.
F. Subsequent events
Within a week after the incident at HRE, a man from Mr. Hastava's office left a message on the Portee's answering machine. T.137-38. According to Mr. Portee, the message said, "'This is Hastava Realty, can you please give me a call back,' something about a house. 'We have a new house for you,' or something like that." T.173-74. The Portees never returned the call.
On February 27, 1990, after the Portees complained to the DHR, Mr. Hastava sent them a letter apologizing for the "misunderstanding" between them and Mr. Vajda. T.375. He also told them that another house renting in their price range came on the market. Since houses in that range were rare, he wanted to offer it to them if they were still looking. T.399. In addition, he offered to waive HRE's fee for the rental if they chose to accept it. T.29; Pl.Ex.17. They did not correspond with him at all.
G. Damages and emotional distress
About a week after the incident at HRE, however, the Portees' apartment was made uninhabitable by a fire in the apartment above theirs. T.127, 164. The owners put them up, at the owners' expense, at the Holiday Inn in Rockville Centre, where they remained for a month and a half. T.127-28, 164-65.
Each tenant of their apartment building was allowed one room, so the entire family spent that time living in one room together. There were no cooking facilities, so the family ate out every meal. T.128, 166. Under normal circumstances, they spent about $ 90 per week on food and groceries. T.129. While at the Holiday Inn, they spent about $ 50 per day on food for the family, or $ 350 per week. Id. The Portees claimed the difference ($ 1,500, which is $ 250 per week for six weeks) as special damages. T.130.
In addition to the added food costs, living at the hotel was a strain for the Portees. Furthermore, during the Portees' stay in the hotel, the owners of their apartment building decided to convert the building into a cooperative, so the Portees could not move back to their apartment. T.142. They moved from the Holiday Inn to an empty unit in the building on a month-to-month basis since they had nowhere else to go. Id. They were forced to take the apartment "as is" while they looked for permanent housing. The apartment was not ready for tenants; it had not been cleaned after the prior tenants moved out, and the heat was not turned on. There was no hot water, and because it was the middle of winter, the temperature often hovered near zero. T.147-48, 166-67.
1. Donna Portee's emotional distress
When Mrs. Portee drove Mr. Portee back to work after leaving HRE, she was very upset. T.111. She also felt hurt for her husband, because she thought that the situation was embarrassing to him. T.112. She was embarrassed, because she told her friends and co-workers what had happened. T.121. She had to explain to Justin why they were not moving into the house. "It's very hard to explain to a five-year-old why you can't live in a certain area." T.122.
In addition to feeling of upset, Mrs. Portee suffered at her job. She could not concentrate on simple tasks, and she was very nervous. She made many little mistakes at work. T.122-23. In addition to the upset she felt directly from the discrimination, she suffered the further strain of living in the hotel and then the unheated apartment. T.148.
Her co-workers confirmed that for a period of one or two months following the incident at HRE, Mrs. Portee was not herself. She was not able to perform even simple tasks adequately. T.232, 245. She appeared to recover fully in a working capacity within a month or two from her emotional distress over the alleged discrimination. T.234, 245.
2. Paul Portee's emotional distress
Mr. Portee testified that from the moment Mr. Vajda refused to speak with him and refused to let him sign the lease, he felt "low, like I was a low-life animal." T.157. "My wife signed the lease, she was white. Why couldn't I?" T.158. He was angry that he was not allowed to sign the lease, but rather than yell or scream, he decided to ask a lawyer what he could do. T.159.
Since the incident at HRE, Mr. Portee has felt:
[a] deep hurt, very deep hurt. Lord, it hurt [sic] when it comes to my son and I'm trying to give my son what he wants and somebody tries to take it away from me. . . . When I try to do for my son and people tell me I can't have it because I'm black. . . . It's very hard [to talk to Justin about it], because no matter what way you say it, you are still not saying it right.
T.161-62. In addition, he testified that he has had other emotional and physical problems as a result, he claims, of the discrimination at HRE's hands:
I have to try to calm myself down, so I have a beer and I keep having a beer and I drink. . . . I used to go to parties with [Mrs. Portee], have a good time, one or two drinks, dance. Now we don't even do that no more [sic]. . . . I don't feel like being with people no more [sic]. It turned me against them. . . . I still feel bad, low. It's like a space or something when I think about it.