Key Points

  • The Appellate Division, First Department, unanimously granted the State Division of Human Rights' application to enforce its September 21, 2023 order against D. Auxilly NYC LLC and confirmed the order.
  • The Division had jurisdiction under the impact test over a refusal to sell to a Missouri resident who was not in New York at the time, because D. Auxilly marketed its goods as "made in New York" and the refusal deprived her of an opportunity to engage in commercial activity in the state.
  • Substantial evidence supported the finding that refusing to sell a bridal jumpsuit for a same-sex wedding was sexual-orientation discrimination in a public accommodation under Executive Law § 296(2)(a).
  • The court held that selling a previously designed, publicly marketed garment, even with sizing alterations, is not an expressive statement or compelled speech, distinguishing Masterpiece Cakeshop and 303 Creative, and that the neutral Human Rights Law did not violate free exercise rights.
  • The $5,000 compensatory award and the $20,000 civil penalty were upheld as proportionate.

A New York appeals court on Oct. 22 upheld a $20,000 civil penalty against a New York bridal-wear business whose owner, citing her religious beliefs, refused to sell a jumpsuit to a Missouri woman for her wedding to another woman.

A unanimous five-judge panel of the Appellate Division, First Department, confirmed a 2023 order of the New York State Division of Human Rights. The order found that D. Auxilly NYC LLC discriminated against the customer because of her sexual orientation and awarded her $5,000 in compensatory damages for mental pain and suffering. Justices Manzanet-Daniels, who presided, Mendez, Kapnick, Pitt-Burke and Parker-Raso issued the decision without a signed author.

The court held that the Division had jurisdiction over a refusal to sell to a customer who was not in New York when it happened, because the business sold its clothing as "made in New York." It also held that selling a garment the business had already designed and offered to the public is not compelled speech, distinguishing two U.S. Supreme Court decisions involving a wedding cake and a wedding website.

According to the decision, the customer, then a Missouri resident, saw a bridal jumpsuit advertised on D. Auxilly's social media pages and emailed the business to ask about payment options. She wrote that her fiancée had "fallen in love" with the jumpsuit after struggling to find anything she liked, and that she wanted to buy it for their wedding.

Dominique Galbraith, D. Auxilly's owner and operator, replied with the business's payment requirements. Galbraith also wrote that she would not be able to make the garment for a same-sex wedding because it would go against her religious beliefs, and she urged the couple to reconsider getting married, the court recounted.

The customer filed a discrimination complaint with the Division. Ahead of a hearing before an administrative law judge, the parties stipulated to the content of the emails and to Galbraith's continuing belief that making an outfit for a same-sex wedding would violate her sincerely held religious beliefs. They also stipulated that the customer was not a New York resident and was not in New York when the exchange took place.

The customer testified at the hearing about the hurt and mental anguish she felt. D. Auxilly presented no witnesses or evidence, and Galbraith exercised her right not to testify. The Division's Commissioner adopted the judge's recommendation, found jurisdiction, rejected D. Auxilly's free speech and free exercise defenses, and assessed the $20,000 fine "in furtherance of the goal of deterrence."

The Division then asked the courts to enforce its order. Supreme Court, Bronx County, in an order by Myrna Socorro, J., transferred the case to the Appellate Division in September 2025.

On jurisdiction, the panel applied the impact test, under which the Division may act when discriminatory conduct occurred in New York and its impact was felt in the state. The panel relied on the 2024 decision in Syeed v. Bloomberg L.P. The refusal, the panel wrote, "deprived complainant of an opportunity to engage in commercial activity here."

"Indeed, by affirmatively labeling its products as being 'made in New York' but then refusing to sell those same 'New York' products to people of a certain sexual orientation, D. Auxilly implicitly associated the City and State of New York with a discriminatory act, and the impact test is satisfied," the court wrote. The panel added that the customer's use of social media, rather than a visit to a New York storefront, did not defeat the Division's jurisdiction.

The panel found the discrimination finding "amply supported by substantial evidence." The record included the emails themselves. The court also cited a social media post in which D. Auxilly said it refused to sell a garment to a woman because she was engaged to another woman. Quoting a 2016 Third Department decision, the panel wrote that same-sex marriage is "inextricably tied to sexual orientation."

The court then rejected D. Auxilly's First Amendment defense. Unlike the baker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the panel wrote, D. Auxilly was not asked to design and create customized items that might constitute an "expressive statement." The business also was not asked to build a customized wedding website, as in 303 Creative LLC v. Elenis.

"Instead, D. Auxilly refused to sell the wedding garment it had previously designed and which it had marketed to the public," the court wrote. The panel acknowledged that the jumpsuit likely would need to be adjusted for size but held that "this potential sizing alteration would not constitute an expressive statement."

Requiring the sale would not compel D. Auxilly's speech either, the court held. It cited State v. Arlene's Flowers, a 2019 Washington decision, and Civil Rights Department v. Cathy's Creations, a 2025 California appellate decision.

The panel also rejected the free exercise claim. Quoting its own 2024 decision in Ferrelli v. State of New York, the court wrote that the Human Rights Law is "neutral, both on its face and due to a lack of evidence that it targets religious conduct for a distinctive treatment."

The court upheld both monetary awards. It found the $5,000 award "reasonably related to the wrongdoing" and in line with awards for similar injuries. The $20,000 penalty, the panel wrote, "is neither disproportionate to the offense nor does it shock the conscience." The court considered D. Auxilly's remaining arguments and found them "unavailing."

The Division was represented by Melissa Franco of the New York State Division of Human Rights, with Michael K. Swirsky of counsel. D. Auxilly was represented by Daniel J. Schneider of Offit Kurman, P.A.

The decision grants the Division's enforcement application and confirms its order without costs, leaving the $5,000 award and the $20,000 penalty in place. The ruling is uncorrected and subject to revision before publication in the Official Reports.