Opinion
July 13, 1979
Present — Cardamone, J.P., Simons, Hancock, Jr., Callahan and Witmer, JJ.
Petition unanimously granted, without costs, order reversed and complaint dismissed. Memorandum: In this proceeding pursuant to section 298 Exec. of the Executive Law, petitioner, a gift shop, seeks to annul an order of the State Human Rights Appeal Board reversing the action of the State Division of Human Rights in dismissing the complaint for lack of jurisdiction. The complainant alleges that he was denied "equal advantages, facilities, privileges and accommodations" of the gift shop because it displayed for sale novelties which demeaned persons of Polish extraction. The petition should be granted and the complaint dismissed. The novelty items, although offensive and in poor taste, were not communications "to the effect that any of the accommodations, advantages, facilities and privileges * * * [of the gift shop] shall be refused, withheld from or denied to any person on account of * * * national origin [or that that person] is unwelcome, objectionable or not acceptable, desired or solicited" as required by subdivision 2 of section 296 Exec. of the Executive Law. (Cf. Matter of Rosenberg v. State Human Rights Appeal Bd., 45 A.D.2d 929.)