Summary
remanding to division for hearing when investigation was incomplete and did not allow complainant full opportunity to present contentions and evidence
Summary of this case from Toliver v. Alaska State Comm'n for Human RightsOpinion
March 19, 1979
Proceeding pursuant to section 298 Exec. of the Executive Law to review an order of the State Human Rights Appeal Board, dated November 1, 1978, which affirmed an order of the State Division of Human Rights, dated January 23, 1978, dismissing petitioner's complaint upon a finding that there was no probable cause to believe the New York State Department of Correctional Services had engaged in an unlawful discriminatory practice. Order annulled, on the law, without costs or disbursements, and petition granted to the extent that the matter is remanded to the State Division of Human Rights for a public hearing pursuant to section 297 (subd 4, par a) of the Executive Law. The dismissal of this complaint alleging race discrimination "was based upon an investigation which was abbreviated and one-sided and resulted in a record which did not afford a reasonable basis for an administrative determination" (Tenenbaum v. State Div. of Human Rights, 50 A.D.2d 257, 259). "Where there has not been a full investigation and opportunity for the complainant to present his contentions and evidence, with a full record thereof, a public hearing under paragraph a of subdivision 4 [of section 297 Exec. of the Executive Law] must be held, for in such case the record does not establish a rational basis for the commissioner's determination of no probable cause for the complaint" (State Div. of Human Rights v. New York State Drug Abuse Control Comm., 59 A.D.2d 332, 337; State Div. of Human Rights v. Board of Educ., 46 A.D.2d 483; cf. Tenenbaum v. State Div. of Human Rights, 50 A.D.2d 257, supra). Titone, J.P., O'Connor, Margett and Martuscello, JJ., concur.