Opinion
July 12, 1989
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Boomer, J.P., Pine, Balio, Lawton and Davis, JJ.
Determination unanimously confirmed and petition dismissed without costs. Memorandum: The order of the Commissioner finding no discrimination with respect to the disciplinary actions taken against petitioner and his final discharge is supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176). The Administrative Law Judge did not err in declining to consider petitioner's proffered evidence of respondent's alleged disparate disciplinary action against its black employees. The statistics did not "rest on a sufficient data base" and they were not "adjusted to reflect various factors which may influence the reliability of the numbers" (Matter of CUNY — Hostos Community Coll. v State Human Rights Appeal Bd., 59 N.Y.2d 69, 78). Further, the Administrative Law Judge did not err in permitting proof with respect to the disciplinary action taken against petitioner in the five-year period preceding his discharge.