Opinion
April 22, 1996
Adjudged that the petition is granted, on the law, with costs, the determination is annulled, and the complaint is dismissed.
After the complainant, who tested positive for the HIV virus, filed a complaint against the petitioners, who are dentists and a professional corporation, with the New York State Division of Human Rights (hereinafter the SDHR), a hearing was held to determine whether the petitioner Dr. Edward Anker did in fact discriminate against the complainant in violation of Executive Law § 296 (2) (a). The Administrative Law Judge who heard the case and whose findings were adopted by the Commissioner determined that certain acts of Dr. Anker constituted a refusal to treat the complainant based on his status as a person who was perceived to be at risk for the HIV infection.
Under Executive Law § 296 (2) (a), it is an unlawful discriminatory practice for an owner of any "place of public accommodation" to withhold from or deny to any person because of disability any of the accommodations, advantages, facilities or privileges thereof. However, since the petitioners were private practitioners and operated on an appointment basis in private facilities, their dental office did not operate as a clinic ( see, Matter of Sattler v. City of N.Y. Commn. on Human Rights, 180 A.D.2d 644), and therefore, did not constitute a "place of public accommodation" within the meaning of Executive Law § 296 (2) (a) ( see, Matter of Lasser v. Rosa, 221 A.D.2d 634; Matter of Cahill v. Rosa, 220 A.D.2d 585).
Because the petitioners' dental practice was not a "place of public accommodation" (see, Matter of Lasser v. Rosa, supra), there was no violation of Executive Law § 296 (2). Therefore the petition must be granted.
In light of our determination, the remaining contentions of the respondent are academic. Balletta, J.P., Santucci, Krausman and Florio, JJ., concur.