Opinion
December 29, 1975
Proceeding pursuant to section 298 Exec. of the Executive Law to review an order of the State Human Rights Appeal Board, dated May 16, 1975, which (a) reversed an order of the State Division of Human Rights, dated January 14, 1975, dismissing the complaint in question, (b) held that there was probable cause to believe that petitioners had unlawfully discriminated against the complainant in relation to employment and (c) remanded the matter to the division for further proceedings. Order of the appeal board annulled, on the law, and order of the division reinstated and confirmed, without costs. In our view the appeal board erred in determining that the division's order dismissing the complaint on a finding of no probable cause was arbitrary, capricious and an abuse of discretion (Executive Law, § 297-a, subd 7). The record, considered as a whole, clearly justified the division's finding of no probable cause. In reversing the division's order and remanding the matter for further proceedings, the appeal board impermissibly exceeded the limited scope of its review and substituted its own judgment for that of the division (Matter of Pepsi-Cola Metropolitan Bottling Co. v State Human Rights Appeal Bd., 42 A.D.2d 760; Wyckoff Hgts. Hosp. v State Div. of Human Rights, 38 A.D.2d 596). Rabin, Acting P.J., Latham, Cohalan, Brennan and Munder, JJ., concur.