Opinion
September 22, 1983
Proceeding initiated in this court pursuant to section 298 Exec. of the Executive Law to review a determination of the State Human Rights Appeal Board, dated March 4, 1983, which affirmed an order of the State Division of Human Rights dismissing petitioner's complaint of an unlawful discriminatory practice for lack of probable cause. Petitioner, who is a Puerto Rican, was employed by the State Department of Civil Service as an affirmative action program specialist. On October 1, 1981, petitioner filed a complaint with the State Division of Human Rights charging that his employer was discriminating against him because of his race, color and national origin. Following an investigation, the division concluded that there was no probable cause to believe that the employer engaged in or was engaging in the unlawful discriminatory practice complained of and dismissed the complaint. The division's determination and order was affirmed by the State Human Rights Appeal Board and the instant proceeding was commenced. In order to sustain a dismissal of a complaint before the complainant has had an opportunity to present his case in a formal manner, as here, it must appear as a matter of law that the complaint is without merit ( Matter of New York State Div. For Youth v State Human Rights Appeal Bd., 83 A.D.2d 972, 973; Matter of Stasiak v Montgomery Ward Co., 66 A.D.2d 962). A review of the record reveals that petitioner has failed to submit any evidence to support his contention that he was discriminated against because of his race, national origin or color. On the contrary, the record is replete with evidence of petitioner's substandard work performance. Accordingly, the determination should be confirmed. In so ruling, we note that, contrary to petitioner's assertion, the division conducted a thorough investigation. Determination confirmed, and petition dismissed, without costs. Kane, J.P., Main, Casey, Yesawich, Jr., and Levine, JJ., concur.