Opinion
January 19, 1978
Determination of State Human Rights Appeal Board, dated March 16, 1977, reversing an order of the State Division of Human Rights, dated May 29, 1975, unanimously annulled, on the law, without costs and without disbursements, and order of the State division reinstated. The record does not contain substantial evidence to support the appeal board's determination that there was probable cause to believe that the petitioner was engaging in an unlawful discriminatory practice under section 296 Exec. of the Executive Law (Bache Co. v State Div. of Human Rights, 35 A.D.2d 928). It is clear from the record that the complainant was rejected for a medical reason rather than for his creed (Jewish) and color (Caucasian). To the contrary, the evidence indicates that many of petitioner's employees are Jewish and Caucasian. If the complainant is aggrieved by the fact that he was not granted a second physical by the petitioner or by the fact that the petitioner's test results were not released to him, appropriate recourse may be taken under CPLR article 78 The State division does not have jurisdiction to entertain an article 78 proceeding brought on those grounds.
Concur — Murphy, P.J., Birns, Silverman and Markewich, JJ.